The recent SC verdict on ‘Right to Privacy’ has reignited the debate on IPC - section 377.
What is IPC - Section 377?
Section 377 of the Indian Penal Code dating back to 1860, criminalises sexual activities "against the order of nature".
This arguably included homosexual sexual activities but wasn’t restricted to it.
The section was decriminalized with respect to sex between consenting adults by the High Court of Delhi in 2009.
That judgement was overturned by the Supreme Court of India in 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.
Hence, same-gender sex remains a crime in the country.
How does the ‘privacy’ verdict affects the 2013 verdict?
The ‘Privacy judgement’ was strident and explicit in its criticism of criminalisation of homosexuality, noting that Section 377 had been an instrument of harassment and abuse.
While stressing on human liberty and dignity, it also noted that the 2013 verdict was flawed and unsustainable.
The astounding claim of the previous verdict that there was no need to challenge Section 377 as the LGBT community constitutes only a minuscule minority has been completely discredited.
The ‘Privacy Verdict’ highlights the constitutional basis for protection of rights based on sexual orientation, thereby relegating the previous contention that legislative route was the answer.
What is the way ahead?
By commending the current norm, the court has located sexual orientation not only as a freedom flowing from the right to privacy, but as demanding of non-discriminatory treatment.
Hence, a key principle that discrimination based on sexual orientation and gender identity must end has been recognised clearly.
This has laid the foundation for restoring the Delhi High Court judgment of 2010 in Naz Foundation case that decriminalised consensual sex among adults irrespective of gender.
