India: Right to privacy verdict: A fundamental shift on gay rights

The Supreme Court bench on Thursday provided a big boost to the LGBT community by declaring that a 2014 order by a two-judge bench had gravely erred in annulling a Delhi HC verdict decriminalising gay sex between consenting adults.

"Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacyand the protection of sexual orientation lie at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution," Justice Dhananjay Y Chandrachud, who authored the lead judgment holding privacy to be a fundamental right, said.

The nine-judge bench's order will considerably reduce the previous judgment's chilling effect on LGBT rights. It scythed through the logic in the 2014 judgment in the Suresh Kumar Koushal vs Naz Foundation case saying it was in conflict with the LGBT community's claim based on right to privacy, entrenched in right to life guaranteed under Article 21 of the Constitution. This will go a long way in protecting sexual minorities from the impositions of popular or legislative majorities.

The court 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 while criticising the 2014 order's use of the term "so-called" in the context of gay rights.

Stopping short of setting aside the 2014 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." Read more via Times of India