With Right to Privacy, LGBTQ Community Has Reason to Rejoice

It is a time for celebration, for the LGBTQ community and for all of us. Injustice anywhere is injustice everywhere.

6 min read
It is a time for celebration, for the LGBTQ community and for all of us. Injustice anywhere is injustice everywhere.

(On 24 August 2017, a nine-judge bench of the Supreme Court unanimously affirmed that privacy is a fundamental right under the Constitution of India. One year on, The Quint looks back at what the judges said, and why the historic judgment is so important for all of us.)

On 24 August 2017, the Supreme Court, in a nine-judge bench decision, unanimously held that the right to privacy is an intrinsic part of right to life and personal liberty guaranteed under Article 21, and as part of freedoms guaranteed under Part III of the Constitution.

In the process, the Supreme Court overruled MP Sharma (1954), and Kharak Singh (1962), which in turn led to one of the biggest takeaways of the judgment: a tremendous blow against another judgment of this very Court, in Suresh Kumar Koushal vs Naz Foundation (2014) 1 SCC 1.

That was the case in which the Supreme Court upheld the constitutional validity of Section 377, IPC – the provision that criminalises same-sex adult activity, and because of which an entire community of LGBT individuals is treated as potential or actual criminals.

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Persistence Pays

Vikram Seth’s famous cover picture in India Today comes to mind: Do I look like a criminal? His late mother Leela Seth wrote an impassioned article for the New York Times condemning the judgment as a destruction of the right to love.

Today, the Naz Foundation petition argued by the Lawyers Collective in the High Court of Delhi stands vindicated in its full glory.

Short of actually overruling the judgment, since a curative petition is pending in court, the judgment knocks the bottom out of Koushal – its overruling now remains a mere formality.

I am proud that Lawyers Collective has been part of the journey of the Naz foundation judgment for the last 10 years – persistence pays.

Today’s judgment gave us more than we asked for. It gave us more than privacy in our daily lives, by giving us freedom from snooping by governments; a stunning reversal of the ADM Jabalpur Judgment, which legitimised the suspension of fundamental rights during an Emergency.

It gave us the rule of law – with protection for a number minorities, including political ones. It also granted us freedom of conscience so that we are not trifled with by a majoritarian government.

We will no longer tolerate Arun Jaitley’s statement in a reply regarding fundamental issues. We have the numbers, but numbers don’t matter.

What matters is a single person who has the courage to stand up and say ‘this is my birth right, I will not bargain away my rights to a ruling majority’.
Section 377 was introduced by the British as part of the Indian Penal Code in 1860. It prohibited voluntary carnal intercourse ‘against the order of nature’ with any man, woman or animal, and made it punishable by imprisonment.

The maximum punishment was up to 10 years or a life sentence.

In effect, Section 377 prohibited all non-procreative sexual acts between two individuals.

Section 377 covered a wide range of acts, including anal sex, oral sex, penetration into thighs, mutual masturbation, etc, as long as penetration by a penis was involved.

It did not cover sexual acts between two women, and non-penile sexual acts between two men. Though it covered both heterosexual and homosexual acts, the law was used against the LGBT community as a tool of harassment, blackmail, violence, and everyday stifling of their desires.

In 2001, the constitutional validity of Section 377 was challenged by Naz Foundation, an NGO working on the issue of male sexual health, in the Delhi High Court. It was spearheaded by the Lawyers Collective.

It was argued against on the basis that it violated the fundamental rights to equality, non-discrimination, freedom of expression, privacy, dignity, and health guaranteed under Articles 14, 15, 19 and 21 of the Constitution.


The Judgments

On 2 July 2009, in a landmark verdict, the Delhi High Court, in a division bench of Chief Justice AP Shah and Justice Muralidhar, held that Section 377, in so far as it criminalised consensual sexual acts between adults, was violative of Articles 14, 15 and 21 of the Constitution.

In effect, Section 377 would only cover non-consensual sexual acts, and sexual acts with a minor.

On 11 December 2013, the Supreme Court, in an astonishing example of abdication of constitutional duty, overruled the High Court judgment and reinstated Section 377 with a vengeance.

The judgment negated the rights of the LGBT and asked whether minority or so-called rights of an LGBT person could come to court and ask for the law to be quashed. Today Justice DY Chandruchud has answered, Yes they can.

Here is what he writes:

Even though a minor fraction of the country’s population includes Lesbians, Gays, Bi-sexuals or Transgenders (as observed by the judgment of the Court), it is not a substantial basis to deny the right to privacy.

The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to isolate the exercising of it from the contempt of the majority, whether legislative or popular.

The guarantee of constitutional rights does not depend on the exercise being favourably regarded by the opinion of the majority. The fact of acceptance by most does not provide a valid basis to disregard rights. They are conferred with the sanctity of constitutional protection.

Everyone Is Entitled to the Right to Privacy

Distinct and isolated minorities face the grave danger of discrimination. The reason being that their views, beliefs or way of life does not coincide with the mainstream format.

Yet, in a democratic Constitution, founded on the rule of law. The rights of minorities are as sacred as those conferred on other citizens to protect their freedom and liberty.

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.

Equality demands that the sexual orientation of each individual in society must be protected with equality.

The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

Justice Chandrachud says in para 128 that “the Koushal rationale that prosecution of a few is not an index of violation. It is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy and dignity based claims of LGBT persons on this aspect.”

Though Justice Chandrachud, as a matter of judicial discipline, has stated that since the challenge to Section 377 is pending, it is to be considered by a larger Bench of this Court.

We would leave the constitutional validity to be decided in an appropriate proceeding. Section 377 is dead, all that remains is to perform its last rites.


Time for LGBT Community to Celebrate

Justice Sanjay Kishan Kaul, in a separate judgment, has agreed with Justice Chandrachud’s opinion.

I am in agreement with the view of Dr DY Chandrachud, who in paragraphs 123 & 124 of his judgment, states that the right to privacy cannot be denied, even if there is a minor fraction of the population which is affected.

The majoritarian concept does not apply to Constitutional rights and the Courts are often called to take what might be categorised as a non-majoritarian view, in the checks and balance of power imagined under the Constitution of India.

One’s sexual orientation is undoubtedly an attribute of privacy.

It is a time for celebration, for the LGBT community and for all of us. Injustice anywhere is injustice everywhere.

(The writer is a former Additional Solicitor General of India. She can be reached at @IJaising. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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