India’s Supreme Court is considering a landmark landmark ruling which may result in the decriminalization of homosexuality.
Currently homosexuality is outlawed under section 377 of the Indian Penal Code.
The 9-judge bench is led by the Chief Justice of India JS Khehar. It is considering if right to privacy is defined as a fundamental right.
The case was brought to the Supreme Courts over the country’s Aadhaar program. Aadhaar is a 12 digit unique-identity number issued to all Indian residents based on their biometric and demographic data. Activists argued the program was a violation of the right to privacy.
Some of the bench’s first observations were heard this week.
Justice DY Chandrachud said if the right to privacy was a fundamental right, then the court’s decision in 2013 to uphold Section 377 ‘falls’.
‘If privacy is about right to make a choice, then choice in what areas? Family, sexual orientation, gender identity, surveillance, what all?’ the bench observed.
To help in their decision, the judges will review previous Supreme Court rulings in 1954 and 1962 which ruled privacy was not a fundamental right.
In 2012 the Delhi High Court ruled to abolish Section 377 based on an argument of a privacy. That decision was overturned in the 2013 Supreme Court ruling.
Indian NGO (non-goverment organization) Naz Foundation had filed a petition against the 2013 ruling which again raised the issue of right to privacy.
‘If yes (i.e. if right to privacy is a fundamental right), then Naz Foundation (ruling) falls,’ observed Justice DY Chandrachud.
‘If I decide to co-habit with my wife, police can’t barge into my bedroom. That’s my privacy.
‘Whether to send my children to school is not privacy because I have to send them to school under the Right to Education law.’
Since the 2013 Supreme Court ruling there has been a number of attempts to have Section 377 repealed.
In March, Federal Congress Member of Parliament Shashi Tharoor introduced a Bill and anti-discrimination bill into India’s parliament. Which if it passed would mean the end of 377 nationally.