Supreme Court declaring the right of privacy a fundamental right, said in the judgment: “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation…”
The nine judge bench headed by CJI JS Khehar said the rights of LGBT persons were not a charity. “Their rights are not ‘so called’ but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity,” the judgment said.
The privacy judgment recognised and respected the sexual preference and orientation of the LGBT community. Justice Chandrachud said on behalf of the bench, “That a minuscule fraction of the country’s population constitutes LGBTs is not a sustainable basis to deny the right to privacy.
‘Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual’
“The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities…. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection.”
“Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the mainstream. Yet in a democratic Constitution… their rights are as sacred as those conferred on other citizens.
The bench said the Delhi High Court had “erroneously relied upon international precedents in its anxiety to protect the so-called rights of LGBT persons”. The rights of gay and LGBT population “cannot be construed to be ‘so-called rights’, the court said, adding their rights are not “so-called” but real rights under the Constitution.
Stopping short of setting aside the 2013 judgment that criminalises homosexuality, the SC said, “Since the challenge to Section 377 is pending consideration before a larger bench of this court, we would leave the constitutional validity to be decided in an appropriate proceeding.”
Justice A.P. Shah, who had read down Section 377 of the IPC in 2009, has said that after the Supreme Court’s order on the fundamental right to privacy, there is “very little scope” to defend 377. He said, “I personally feel that there is a strong possibility that the Constitution bench examining the curative petition is bound to go by what the Supreme Court said in course of its judgment on Thursday. There is very little scope now for those wanting to support Section 377.”