India: Freedom of sexual orientation ruled ‘fundamental right’ in boost to LGBT rights
Share this on

India: Freedom of sexual orientation ruled ‘fundamental right’ in boost to LGBT rights

A NINE-JUDGE Indian Supreme Court bench unanimously ruled on Thursday that privacy is a fundamental right, protected as an intrinsic part of the right to life and personal liberty and as part of the freedoms guaranteed by the Constitution.

The ruling came after petitions were filed to challenge the constitutional validity of a government order on mandatory use of Aadhaar cards – an identification document that includes all of a citizen’s details including biometric and demographic data.

While Aadhaar was considered the main focus of the ruling, it’s the significant implications for sexual rights and freedoms that has brought cheer to the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community of India.

The ruling declared that sexual orientation is “an essential attribute of privacy” and discrimination against any individual on the basis of their sexual orientation is “deeply offensive to the dignity and self-worth of the individual.”

It also stated that LGBTQ rights are not “so-called rights” as they had been referred to in previous rulings, but were in fact “real rights founded on sound constitutional doctrine.”

The news has been met with delight from those on the frontline in the fight for equal rights.

Renato Sabbadini, Executive Director at the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), called it a “hugely significant” ruling that “gives hope to rainbow communities in the country.”

“It is refreshing to hear judges speak of sexual orientation in terms of human rights, and to clearly affirm that ‘discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual’,” he told Asian Correspondent.

Local campaigners especially are feeling the surge in optimism throughout the community.

“People are feeling very upbeat about this,” said Anjali Gopalan, Executive Director of the Naz Foundation (India) Trust (Naz India), a Delhi-based NGO who has long fought for LGBT equality. “We’re feeling there’s a lot of hope in the community.”

SEE ALSO: Analysis: Getting to the heart of India’s gay marriage debate

But the ruling is somewhat bittersweet for those who feel it is long overdue when considering the people it was too late to save.

“Just a few years ago there was a professor at the Aligarh Muslim University who committed suicide after the media barged into his home and filmed him having sex with a man,” says Gopalan, explaining the 2010 case of Srinivas Ramchander Siras who was suspended from his job “on moral grounds” and evicted from his college accommodation after students broke in and filmed him with his partner.

“If we had had this ruling seven years ago, no one would have been able to barge into his home. It wouldn’t have happened. This ruling will help so many people.”

The judges’ statement on the ruling also referred directly to controversial Section 377 of the Indian Penal Code – an antiquated law dating back to 1860 that was introduced during the British rule of India.

Section 377 criminalises sexual activities once considered “against the order of nature”. In its current form, that includes homosexual sexual activities between consenting adults in private.

SEE ALSO: India government asks court to review anti-gay law

After successfully achieving decriminalisation in 2009, the judgement was overturned by the Supreme Court in 2014, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

A petition challenging the decision was submitted to the Court in 2016 by Naz India and is currently still pending. But with today’s ruling, it’s looking likely that this will be easily won.

“The way this ruling has happened means there’s no reason for 377 to exist anymore,” Gopalan explains, anticipating a successful outcome.

“They (the Supreme Court) also mentioned the right to live with whoever you want to. This has consequences that I’m sure will impact our ruling.”

In a statement issued on Thursday’s judgement, the bench tore apart the 2014 Supreme Court ruling to reinstate Section 377, observing that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity”.

Justice D.Y. Chandrachud observed that the 2014 judgement’s view that only “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”, was not a sustainable basis to deny them the right to privacy.

SEE ALSO: India’s top court to re-examine gay rights

Writing for himself, as well as Chief Justice Khehar, Justices R.K. Agrawal and S. Abdul Nazeer, Justice Chandrachud stated:

“The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties,” as quoted by The Hindu.

While Thursday’s ruling has been a major boon for the LGBTQ community, many are muted in their celebrations.

“This is very encouraging, of course,” explains Malobika, a self-described queer feminist activist and co-founder of Sappho, a support group for LBT people in Eastern India. “But at the same time there is nothing to celebrate yet because we don’t know what is there in between the lines.”

“This is not the time for celebration, but reflection.”

Acknowledging that this is most certainly encouraging, and that the ruling supports their cause and will undoubtedly help them make progress in the future, Malobika is more than aware that there is still a long way to go in the fight for equal rights.

“This ruling will frame our next course of action and inform our strategy,” she said. But, while this is a step in the right direction, “we have many more miles still to travel.”