Right to Privacy verdict: For LGBTQ community, this judgment is a big step in fight against Section 377

When the Supreme Court on 30 August declared the Right to Privacy a fundamental right, and included a person’s sexual orientation under it , the LGBTQ community in India was taken by surprise that the same court which re-criminalised Section 377 of the Indian Penal Code in 2013 now extended support to their identity. “With Section 377, it is as though the government has a right to check what we do in our bedrooms which is a violation of our privacy. Earlier, we’d try to find loopholes within Section 377, but with this verdict, the court is telling us not to lose hope. We can now take the conversation forward,” said Alex Mathews, a 28-year-old communications officer at an NGO and drag artist who identifies himself as queer. For Anjali Gopalan, the executive director of Naz Foundation (India) Trust, who are the original petitioners in the case against Section 377, the verdict brought about a great sense of relief and happiness. “We are very happy with it. It’s a huge step for the LGBTQ community for at least there is a judgment that protects them in some way. Even though homosexuality hasn’t been de-criminalised, the Right to Privacy gives them some form of protection,” she said. [caption id=“attachment_4001311” align=“alignleft” width=“380”] Representational image. Reuters[/caption] Ankur Chakraborty, 22, identifies himself as gay and ‘gender non-conforming’ and also performs as a drag queen Randy Scarhol. He admitted he was surprised about sexual orientation being included under the Right to Privacy and was happy as it would make it easier to debate Section 377. “I didn’t expect them to include it at all and say what you do in your bedroom is private. At the same time, I have mixed feelings towards this too for Section 377 still exists which criminalises homosexual intercourse while right to privacy protects our sexual identity. Two contradicting laws exist at the moment but we are definitely one step closer to striking down Section 377,” he said. The Right to Privacy judgment affirms the constitutional rights of the LGBTQ community in India. It iterates two things. First, that sexual orientation is an essential part of privacy. Justice DY Chandrachud wrote in his judgment, which was signed on by three other judges: “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 on an even platform.” He further wrote that 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.” “Second, the judges held that the decision by the Supreme Court in Suresh Koushal versus Naz Foundation (2013), that re-criminalised homosexual consensual sexual acts, was erroneous and that the two reasons, (namely ‘miniscule population’ and ‘less than 200 prosecutions n 150 years) cannot be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution,” explained Mohammed Afeef, a Bengaluru-based lawyer. Justice Sanjay Kishan Kaul also concurred with the other judges. Out of the nine judges on the bench, five explicitly stated that an individual’s sexual orientation was protected under the Right to Privacy. “I keep thinking that if this judgment was present a couple of years ago, Professor Siras of Aligarh Muslim University would never have committed suicide. It would have never taken place,” rued Gopalan. Srinivas Ramachandra Siras, a homosexual Marathi professor at Aligarh Muslim University, was suspended after media persons entered his house without his permission at night and filmed him with his partner in 2010. A few months later, he killed himself. His story was later adapted into a film by Hansal Mehta called Aligarh. Microbiology student Anahita Ananth, 19, who identifies herself as bisexual, was equally surprised by the judgment. “I didn’t expect them to include sexual orientation under Right to Privacy. It felt good because as a country, it’s a huge step forward. But I am sceptical about it as well as I’m not sure if this ruling would change the mindset of people in the society. It doesn’t guarantee that people aren’t going to stigmatise the LGBT community for having alternate sexualities,” she said. But Ankur Chakraborty feels differently about it.

“The law being altered makes a huge difference. Right now, Section 377 provides a legal backbone to a heteronormative society causing of a lot of queer-phobia. But once a ruling like the Right to Privacy, or striking down of Section 377 does takes place, the backbone is broken, which will have a huge impact on the community. Notions will take time to change for people won’t wake up one day and suddenly be okay with gays, lesbians, transgenders and bisexuals,” he said.

The way forward At present, there is a curative writ petition seeking to strike down Section 377 pending in the Supreme Court which will be heard by a five-judge Constitution bench. In light of it, to what extent will the right to privacy judgment affect that? [caption id=“attachment_4001315” align=“alignright” width=“380”] The right to privacy verdict will have a huge impact in the fight for gay rights. AFP[/caption] “I think it’ll definitely enhance our argument because the Supreme Court had said that privacy didn’t matter in this case in the last judgment where they reversed the Delhi High Court judgment to re-criminalise homosexuality,” said Gopalan. “All we’re asking is a reading down of Section 377 and to not include consenting adults under its purview,” she added. For lawyer Mohammed Afeef, the Right to Privacy judgment will definitely affect the curative writ petition against Section 377. He explains that every judgment has two parts: An Obiter Dictum which is a judge’s expression of his opinion uttered in court or in a written judgment, but not essential to the decision, and therefore not legally binding as a precedent and a Ratio Decidendi; the rule of law on which a judicial decision is based or the principle that the judgment upholds, which becomes the binding precedent. In the case of Right to Privacy, the court was faced with the question of what privacy is and what are its contours. “The court then impregnated the right with content, and including sexual orientation within privacy was an essential part of that exercise. Therefore, I think this inclusion of sexual orientation within privacy should be read as legally binding,” said Afeef. However, the judges’ comments on the Suresh Koushal versus Naz Foundation (2013) judgment describing it as erroneous were not essential in determining the Right to Privacy as a fundamental right. “This means that it is very likely to be categorised as Obiter Dictum and will at the most, have a persuasive effect on the curative writ petition,” he further explained. “That being said, even what I perceive as legally binding, ie inclusion of sexual orientation into privacy, can be read differently by the bench hearing the curative, no certain conclusion can be reached before the hearing,” clarified Afeef. It depends on interpretation. There are various instances in the past where judges have found a way out of what seems to be legally binding and pursued a different line of reasoning. “The Right to Privacy, however, does create a fresh ground of challenge, that Section 377 is violates the fundamental Right to Privacy. It makes for a strong case. If, even after this, the court doesn’t alter Section 377, it will face a lot of criticism,” said Afeef. It remains to be seen how the Constitution bench will view the case in light of the Right to Privacy judgment.