SC verdict says sexual orientation part of privacy, LGBT community celebrates

Over the moon, say LGBT activists welcoming the judgment.

“Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”

LGBT community members and supporters at a pride parade in Bhopal, India.(Mujeeb Faruqui/HT Photo)

These lines from a watershed Supreme Court judgment guaranteeing the right to privacy as a fundamental right on Thursday has buoyed India’s Lesbian, Gay, Bisexual and Transgender community (LGBT), who are criminalised under a colonial-era law and battle everyday violence and bias.

“I am over the moon,” said Anjali Gopalan, founder of Naz Foundation that petitioned the HC in 2001 against section 377.

Members of the community across cities hailed the verdict and said it would boost their fight against a 2013 top court judgment – popularly known as the Suresh Koushal verdict – that left it to Parliament to scrap section 377 that bans “unnatural sex”.

“I welcome this judgment. It is a relief to hear sexuality spoken of in the language of rights and dignity,” said Gautam Bhan, a professor, activist and one of the original petitioners in the petition against section 377.

India is one of a handful of modern democracies that criminalise same-sex relationships and LGBT people often face blackmail, threats and violence as a result. In 2009, the Delhi high court read down section 377 to exclude consenting adults but it was overturned in 2013 by the SC.

Thursday’s judgment, however, attacked the reasoning of the 2013 decision, saying the protection of sexual orientation lay athte core of fundamental rights guaranteed by the Constitution. “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,” the top court observed.

This, lawyers said, would help in the curative petition against the 2013 verdict. “The privacy judgment will be very helpful. I don’t think Koushal will be able to withstand this challenge in the curative petition,” said senior advocate Anand Grover, who is arguing the curative petition that is pending before the top court.

Activists also pointed out that the SC verdict would have a wide-ranging impact protecting the privacy of LGBT individuals. “In the case of Dr Siras in Aligarh, media barged into his house and filmed him. This cannot happen now,” said Gopalan.

Others pointed out to the government’s alleged ineptness at guaranteeing rights to its LGBT citizens and criticised the lack of effort to repeal the colonial law. “It is a slap on religious fundamentalists who misinterpret sexuality,” said Akkai Padmashali, a petitioner in the 2014 SC verdict that recognized transgender people as a “third gender”. “We hope this makes Parliament open its eyes that you cannot impose majoritarian thinking.”