The Supreme Court’s judgment on the right to privacy leaves very little scope to argue in the defence of Section 377, retired judge AP Shah told The Indian Express on Thursday. In July 2009, Shah had decriminalised homosexuality as the chief justice of the Delhi High Court, but his order was set aside by a two-judge Supreme Court bench in 2013.
“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 the course of its judgment on Thursday,” Shah told The Indian Express. “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 fundamental rights]. But invading the bedroom cannot be considered reasonable restriction.”
Dating back to the 1800s, Section 377 of the Indian Penal Code criminalises anal and oral sex, referring to unnatural sex, as “against the order of nature with any man, woman or animal”. It also includes a maximum punishment of life imprisonment for “unnatural sex”
On Thursday, a nine-judge Constitution bench of the Supreme Court unanimously held that privacy was a fundamental right. The judges said it was protected under the Constitution’s Article 21, which guarantees the right to life
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