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

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)
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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Written by Colin Stewart

Colin Stewart is a 45-year journalism veteran living in Southern California. After his retirement from paid newspaper work in 2011, he launched Erasing 76 Crimes and helped with the Spirit of 76 campaign that assembled a multi-national team of 26 LGBTI rights activists to advocate for change during the International AIDS Conference in Washington, D.C., in July 2012. He is the president of the St. Paul’s Foundation for International Reconciliation, which supports LGBTQ+ rights advocacy journalism, including the Erasing 76 Crimes news site and the African Human Rights Media Network. Contact him via Twitter @76crimes or by email at info@76crimes.com. Mailing address: 21 Marseille, Laguna Niguel CA 92677 USA.

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