Right to Privacy Judgment Makes Section 377 Very Hard to Defend, Says Judge Who Read It Down

Justice A.P. Shah said, "There is very little scope now for those wanting to support Section 377...invading the bedroom can’t be considered reasonable restriction [on the fundamental right to privacy]."

New Delhi: Justice A.P. Shah, who had read down Section 377 of the IPC, which criminalises “unnatural” consensual sex and has been used to target sexual minorities and homosexual couples, has said that after the Supreme Court’s order on the fundamental right to privacy, there is “very little scope” to defend 377.

“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.

Read: What Supreme Court judges said about the Section 377 in the right to privacy judgment

In a July 2009 judgment, as the then chief justice of the Delhi high court, Justice Shah (along with Justice S. Muralidhar) had struck down Section 377, saying, “[Section 377] is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.” The high court had clarified that the section should only be used in cases of non-consensual sex or sex with a minor. This judgment was later set aside by the Supreme Court, which said that the law needed to be changed by parliament and was beyond the scope of the court’s jurisdiction.

Explaining which parts of Thursday’s privacy judgment would affect 377, Justice Shah said, “First, the court holding that the sexual orientation is part of privacy and the unanimous declaration that privacy is a fundamental right.” He also said that the Naz Foundation judgment as well as the 2014 NALSA judgment, 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,” Indian Express reported. “The Singhvi judgment rejected the Article 15 argument without any explanation,” he said.