India: Supreme Court’s right to privacy judgment is a welcome step towards decriminalizing consensual same-sex relations

Today, the Indian Supreme Court delivered a landmark judgment declaring the right to privacy an intrinsic part of the right to life and liberty under Article 21 of India’s Constitution.

The ICJ welcomed a momentous and courageous judgment, where the Supreme Court took an expansive view of the right to privacy, and held that, at its core, privacy includes “the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation…”

As such, this judgment is an important step towards scrapping laws criminalizing same-sex activity in the country, the ICJ said.

“The judgment is a testament to the inspiring work of human rights activists and lawyers in India, who have shown the potential of the law to affirm human rights and equality,” said Frederick Rawski, ICJ’s Asia Director.

“The ruling could have far-reaching implications for a number of cases -including with respect to the criminalization of consensual same-sex relations – where laws, policy and practices have been challenged on the basis that they violate the right to privacy,” he added.

The judgment clarified that the right to privacy is not spatially bound and exists beyond four walls as it “attaches to the person” and is not “lost or surrendered merely because the individual is in a public place.”

Significantly, in explaining the ambit of the right to privacy, the Supreme Court held that sexual orientation is “an essential component of identity” and “equal protection demands protection of the identity of every individual without discrimination.”

The Court also highlighted that laws criminalizing same-sex activity have a “chilling effect on the exercise of the right”, posing “a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity.”

Section 377 of the Indian Penal Code criminalizes voluntary “carnal intercourse against the order of nature with any man, woman or animal” and prescribes a range of penalties including life imprisonment.

In Naz Foundation v. Govt. of NCT of Delhi, the Delhi High Court in 2009 read down the application of section 377, holding, among other things, that insofar as it criminalizes consensual sexual acts, it violates Articles 21 (right to life and liberty), 14 (equal protection of the law) and 15 of the Constitution (freedom from discrimination) of the Indian Constitution.

However, in Suresh Kumar Koushal in December 2013, the Supreme Court reversed the 2009 Delhi High Court ruling, effectively recriminalizing homosexuality.

The petitioners challenged the ruling in Koushal, and in February 2016, the Indian Supreme Court referred a “curative petition” to a five-judge bench of the Supreme Court for consideration.

In today’s judgment, the Supreme Court questioned the rationale in Koushal, and expressed disagreement with the manner in which Koushal dealt with the “privacy–dignity based claims of LGBT persons.”

It also found the reasoning in Koushal flawed and unsustainable for being discriminatory towards LGBT persons by calling them “a miniscule fraction of the country’s population” and making that the basis for denying their right to privacy.

However, the Court held that since a challenge to section 377 is pending before a larger bench, its constitutional validity would be decided in the appropriate proceedings.

“The Supreme Court’s judgment is indeed historic, but the real test of its impact will be whether the right to privacy it affirms is given effect in its true spirit in individual cases, so as to ensure that laws, policies and practices meet India’s obligations under the Constitution as well as international standards,” added Rawski.


Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)

Ajita Banerjie, ICJ Consultant in Delhi, t: +918447784157; e: ajita.banerjie(a)

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