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.
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.
- Freedom Of Sexual Orientation Is Now A Fundamental Right In India (Aug. 24, 2017, BuzzFeed)
- SC’s Order on Right to Privacy is a Slam Dunk on Sec 377 (Aug. 24, 2017, Indian news website The Quint)
- In Supreme Court’s Right To Privacy Judgment, A Touch of Rainbow (Aug. 24, 2017, NDTV)
- SC rules on right to privacy: What next on beef law, LGBT rights, data security (Aug. 24, 2017, Hindustan Times)
- Indian Supreme Court: Ruling might overturn anti-LGBT law (July 2017, 76crimes.com)
- International jurists to India: Overturn anti-gay law(April 2016, 76crimes.com)
- Indian Supreme Court will review anti-gay law (February 2016, 76crimes.com)
- India: Growing LGBTI openness, despite legal setback (June 2014, 76crimes.com)
- Orinam’s archive of articles about Indian courts and Section 377
- This blog’s archive of articles about India