Gay sex may be decriminalised if SC hold right to privacy is a fundamental right

In the Naz Foundation verdict, the two judge Bench had held that Section 377 of the Indian Penal Code will continue making homosexuality irrespective of consent or age an offence.

A nine-judge Bench of the Supreme Court which is hearing a matter related to right to privacy has indicated that a judgment on homosexuality may just be re-opened.

The Bench headed by Chief Justice of India, J S Khehar observed that sexual orientation is a matter of privacy. In case the court were to hold that privacy is a fundamental right, then the judgment on homosexuality passed in 2013 could be subject to fresh challenge.

During the course of the arguments, Justice D Y Chandrachud said that marriage, procreation are facets of privacy. Sexual orientation too is about privacy. In case we decide that right to privacy is a fundamental right then the 2013 verdict in the Naz Foundation case becomes vulnerable and could be challenged the Bench also held.

In the Naz Foundation verdict, the two judge Bench had held that Section 377 of the Indian Penal Code will continue making homosexuality irrespective of consent or age an offence. The court left it to the Parliament to make any changes to the section while holding that Section 377 did not suffer from any constitutional infirmity. Section 377 of the IPC prescribes a 10 year punishment for voluntary carnal intercourse against the order of nature with any man, woman or animal.

In 2009, the Delhi High Court had decriminalised gay sex. The SC however reversed that judgment. Naz Foundation had preferred a review, but the same was dismissed in 2014. A curative plea is now pending in the Supreme Court.

OneIndia News