Right to privacy: A beautiful ‘Rainbow’ we can ‘Pride’ ourselves on
In 2013 many lives were shattered, smiles faded and the silver lining was lost, as the Supreme Court upheld section 377 of the Indian Penal Code which criminalised homosexuality, by calling it unnatural in nature.
The LGBTQ community was perhaps the happiest with the Supreme Court's declaration of Right to Privacy being intrinsic to the fundamental rights of a citizen of the country as guaranteed under Article 21 and part III of the Constitution.
The Apex Court specifically said that sexual orientation is one's private affair and distinction on the grounds of the same is offensive.
Justice Chandrachud said, "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 privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution."
The loathed Section 377 is clearly under attack and most likely to be heavily impacted by the Supreme Court's verdict on Right to Privacy.
Here are few quick facts about the section:
The section introduced in the British era was decriminalised by Delhi high Court on 2009 by a two-judge bench of Justice Ajit Prakash Shah and Justice S Muralidhar, only to be overturned by the Supreme Court's verdict in 2013.
What did the 2009 Delhi High Court verdict conclude?
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.
However, good times did not last long enough for the LGBTQ community, and the Supreme Court's verdict on 2013, a two-judge-bench of justices G. S. Singhvi and S. J. Mukhopadhaya held, "that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable"
The Supreme Court further mentioned in its judgment that repealing or amending the section shall be the left to the Parliament and not the Judiciary, "the competent legislature shall be free to consider the desirability and propriety of 9 Page 98 deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General ."
2770 people have been arrested so far under Section 377 of the IPC for committing 'unnatural offence' between 2014 and 2015 according to NCRB. Many questioned the subjectivity of the law and its lack of clarity on 'unnatural offence'.
Number of protests followed demanding the Right to Equality of the LGBTQ community, Bollywood Celebrities, artists, political personalities raised their voice in favour of the rights of the LGBTQ community, but no ray of hope could be seen.
The re-criminalisation of homosexuality made life miserable for the sexual minorities who were forced to live a life of suppression under the constant fear of arrest. Many faced discrimination at work places, educational institutions and in various aspect of social life including ostracism.
After a long wait, the LGBTQ community has finally been able to see a glimpse of the rainbow they had long waited for; we can just hope that this time, it is here to stay.