Justice AP Shah, who as the Chief Justice of Delhi High Court had decriminalised consensual same-sex sexual activity and read down Section 377, has said that the Right to Privacy judgement of the Supreme Court will have a positive effect on the 377 case and that the constitution bench that will hear the curative petition on Section 377 will be bound by it.
Speaking to the Indian Express, Justice Shah said, “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.”
He further said that both the Delhi High Court judgement of 2009 and the NALSA judgement of 2014 had interpreted Article 15, which states no one can be discriminated against, among various things, on the basis of sex, to include sexual orientation, which the Kaushal judgement of Supreme Court had rejected in 2013. “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.
The two judge bench of Supreme Court, while hearing the Section 377 case, had argued that Sec 377 affects only a “miniscule minority” and that the Delhi High court had relied too much on foreign judgements while reading down the Section. A nine-judge Constitution bench of the Supreme Court yesterday, while delivering its verdict in the Right to Privacy case, noted that “That ‘a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders’ (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy.” It also stated, “The view in Koushal that the High Court had erroneously relied upon international precedents ‘in its anxiety to protect the so-called rights of LGBT. persons’ is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. “
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