Court paves the way to overturning India's anti-gay law

Colin Stewart is a 45-year journalism veteran living in Southern…

Protest against India's anti-gay Section 377. (Photo courtesy of The Quint) — Protest against India’s anti-gay Section 377. (Photo courtesy of The Quint)

India’s Supreme Court today boosted the chances of overturning the country’s anti-gay law, Section 377, as it declared that all Indian citizens have a fundamental right to privacy.

Supreme Court of India (Photo courtesy of Wikipedia)

In a ruling on a challenge to India’s system of 12-digit personal identification numbers, the court not only discussed privacy in general but also explicitly addressed the rights of LGBT people:

“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.”

The court also stated:

“The rights of lesbian, gay, bisexual and transgender population cannot be construed to be ‘so-called rights’… Their rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine.”

Supreme Court Justice DY Chandrachud wrote in his judgment:

“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. … Privacy also connotes a right to be left alone.”

Last month, as it was still deliberating the issues covered in today’s ruling, the Supreme Court warned that if it declared privacy to be a fundamental right — as it did today — that could lead to a renewed, stronger legal challenge to the court’s 2013 ruling that reinstated Section 377 of the Penal Code, which dates back to British colonial times.

Section 377 makes it a crime to voluntarily have “carnal intercourse against the order of nature with any man, woman or animal.” That law has been interpreted to apply to consensual same-sex sexual relations.

Today’s ruling “brought cheer to the gay and LGBT communities,” NDTV reported in an article headlined “In Supreme Court’s Right To Privacy Judgment, A Touch of Rainbow.”

The court’s 2013 ruling had stated that Parliament would have to make any changes to Section 377. A still-pending legal petition challenges that ruling on the grounds that Section 377 violates people’s privacy.

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