The Supreme Court’s decision to uphold the right to privacy as a fundamental right has brought with it hopes for the LGBT communities. While the judgement is being largely seen as one that will strengthen the case against the mandatory implementation of Aadhar, country-wide unique identity project, the judgement is also likely to have a huge impact on the matter of Section 377, which criminalises gay sex. 

A bench of Justice GS Singhvi and SK Mukhopdhaya had in 2013 upheld Section 377, even though the Delhi High Court had earlier struck it down for being discriminatory. The order had then stated since only “minuscule fraction of the country’s population” was affected by the issue and that this was not a strong enough grounds to strike down a penal provision on grounds of discrimination.

However, Justice J Chandrachud’s observations on Section 377 in the judgement on the Right to Privacy has once again given hope to those fighting to see Section 377 being struck down. 

Referring to the earlier Supreme Court judgment on Section 377, the Bench says that the argument that “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” is not a sustainable basis to deny the right to privacy. 

It further adds, “...the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion... Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’.”

While the judgement will not have an immediate impact, advocates for striking down of Section 377 are optimistic that it will strengthen their grounds. 

The judgement 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."

Karuna Nandy, Advocate, Supreme Court said,  “It’s very important. Essentially 9 judges have said that there is right to privacy and four judges have explicitly said that Koushal had wrongly decided and that Section 377 cannot stand under Article 14, 19 and 21 because the LGBT citizens of our country have equal rights. It does not decide the question. However, I can’t see how a five-judge bench could now uphold what is an extremely egregious, what has been a blot on our constitution since 1860.” 

Siddharth  Narrain, lawyer and visiting faculty at the School of Law Governance and Citizenship, Ambedkar University, Delhi says that this means that there will be a lot of pressure on the court after this judgement and it can be an additional ground to argue the case. 

“There will definitely be more pressure for it to come up now and when the case does come up there will be more solid ground in terms of what is being argued,” Siddharth says. 

Bringing sexual orientation within the ambit of privacy, the judgment said, “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 lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”   

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."

“They really bring together this idea of the privacy of the body being integral. It is not only about spatial privacy as much about bodily autonomy wherever you go. This is what even the Delhi High Court had ruled. So they really built upon that and reiterated and that is very important,” Siddharth said. 

What makes these observations poignant is some of the connection it draws between privacy protecting family, marriage, procreation and sexual orientation.

“It is interesting how they put these four terms together. This is something new. Usually, the link between family, marriage, procreation and sexual orientation is something that they expound upon,” Siddharth said. 

The judgement further examines Singhvi’s decision in the 377 case states,“...the High Court had erroneously relied upon international precedents ‘in its anxiety to protect the so-called rights of LGBT’ is similarly, in our view, unsustainable.”

The bench said the rights of the gay and LGBT population "cannot be construed to be 'so-called rights', adding that their rights are not "so-called" but real rights under the Constitution.

Siddharth says, “The judgement specifically talks about how the reasoning has been wrong when it comes to the dignity and privacy argument. It will have a massive impact on the current challenge on the curative petition when it is heard. It really strengthens one of the main planks of the constitutional challenge.” 

Members of the LGBT community are jubilant that things are likely to look up after this verdict.   

“The judgement about right to privacy is really a warm judgement. It’s a lesson from the Supreme Court for the government about how we see people’s privacy issues. The government has its limit and it can’t go beyond its limit when it comes to people’s privacy. Today’s judgement is welcoming especially in the context of the sexual minorities because we are the community who are being criminalised because of our sexual orientation and gender identity,” Akkai Padmashali, a transgender rights activist.