The Supreme Court decided to reconsider the constitutional validity of section 377 of the Indian Penal Code, the provision which speaks of criminalization of homosexuality. A bench headed by Chief Justice Dipak Mishra decided to re-examine the apex court’s earlier decision upholding the validity of section 377.
Section 377 of the IPC speaks about ‘unnatural offences’ and whosoever has voluntarily engaged into carnal intercourse against the order of the nature with any man, woman or animal, shall be punished with imprisonment for a period of ten years or for life. The petition in the present case was moved by a group of five persons belonging to the LGBT community, has argued that they are affected by the judgement of the Supreme Court because the Supreme Court itself declared the Right to Privacy as a fundamental right and that cannot be denied on the basis of sexual orientation. The petitioners also contended that people belonging to the LGBT community live in fear because the police always try to harass them for their sexual preferences. The petitioner also argued that many nations of the World have decriminalised homosexuality and India should not remain behind.
The petitioners prayed before the Supreme Court to reconsider its 2013 judgement delivered in Suresh Kumar Kaushal Vs. Naaz Foundation which upheld the constitutionality of section 377. On the contrary in the Privacy judgement the Supreme Court recognised privacy is a fundamental right. The apex court observed that right to privacy is valid even in the context of section 377. Sexual orientation, the Court said is an “essential component of identity” and the rights of lesbians, gays, bisexuals and transgender are “real rights founded on sound constitutional doctrine.” Justice Chandrachud wrote in his judgement “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.”
The present decision of the Supreme Court will provide life to the vulnerable section of the society who are fighting for the cause of determining their sexual preferences, which will ensure their right to life with dignity.
