Right to Privacy: Very little scope to defend Section 377 now, says retired HC Judge A P Shah who read it down

Delhi High Court’s order read down Section 377 pertaining to sexual intercourse “against the order of nature” so as to decriminalise sex between consenting adults while maintaining that the section will still be applicable in cases of non-consensual sex or sex with minors.

The nine-judge bench Supreme Court judgment upholding the right to privacy as a fundamental right leaves little scope for those in support of Section 377, said Justice A P Shah, who as Chief Justice of Delhi High Court had delivered the July 2009 judgment decriminalising homosexuality, before it was set aside later.

“I personally feel that there is a strong possibility that the Constitution bench examining the curative petition is bound to go by what the Supreme Court said in course of its judgment on Thursday. There is very little scope now for those wanting to support Section 377. The only argument that can be advanced by them is that of reasonable restriction [on the fundamental rights]. But invading the bedroom can’t be considered reasonable restriction,” Justice Shah told The Indian Express.

Delhi High Court’s order read down Section 377 pertaining to sexual intercourse “against the order of nature” so as to decriminalise sex between consenting adults while maintaining that the section will still be applicable in cases of non-consensual sex or sex with minors. The order was set aside by a Supreme Court two-judge bench comprising G S Singhvi and S J Mukhopadhaya.

Justice Shah finds three aspects of Thursday’s judgment telling. “First, the court holding that the sexual orientation is part of privacy and the unanimous declaration that privacy is a fundamental right,” he said. He added that both the Naz Foundation judgment as well as the 2014 judgment in National Legal Services Authority vs Union of India, a case pertaining to transgender rights, interpreted Article 15 that states no one can be discriminated against, among various things, on the basis of sex to include even sexual orientation. “The Singhvi judgment rejected the Article 15 argument without any explanation,” he said.

In addition to these, he said, Thursday’s judgment also strongly rejects the two-judge SC bench argument of the issue affecting only a “ minuscule population”. “In our Delhi High court judgment, we had quoted some very important international judgment from the UK, US, South Africa, Canada and Australia pertaining to homosexuality. We had also mentioned reports of the Wolfenden Committee [responsible for decriminalising homosexuality in the UK], International Human Rights Commission and European Human Rights Commission… The Supreme Court has considered many of these in its judgment [of Thursday],” he said.