Activists have challenged the Supreme Court ruling upholding Section 377.
The
landmark Supreme Court judgment today which declared
privacy is a fundamental right of all Indians, has also brought cheer to the gay and LGBT communities. The court said right to privacy is valid even in the context of Section 377 --- a law that criminalises what was once seen as unnatural sex. Sexual orientation, the court said, is an "essential component of identity" and the rights of lesbian, gay, bisexual and transgender population are "real rights founded on sound constitutional doctrine".
Elaborating on the
concept of privacy, Justice DY Chandrachud, who was part of the
nine-judge bench that pronounced the verdict, said in his judgment: "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 judgement had come as a severe blow to the gay and LGBT community, given the Delhi High Court, four years before, had decriminalised gay sex between consenting adults, bringing it out of the ambit of Section 377. But the top court had reversed the ruling and placed the onus on parliament, saying only it can scrap or change laws.
Today, the bench said the Delhi High Court had "erroneously relied upon international precedents in its anxiety to protect the so-called rights of LGBT persons". The rights of gay and LGBT population "cannot be construed to be 'so-called rights', the court said, adding their rights are not "so-called" but real rights under the Constitution.
After the 2013 judgment from the top court, a a number of celebrities and gay personalities had asked the court for a rethink. The court had referred it to the Chief Justice. The petition, which challenges Section 377 on the ground that it violates the privacy of people is still pending.