The Telegraph
Friday , August 25 , 2017

Gay activists hail verdict

New Delhi, Aug. 24: Activists fighting for the rights of lesbian, gay, bisexual, transgender and Intersex (LGBTI) people hailed today's privacy verdict, saying it had widened the term's definition and strengthened the case for repealing Section 377 of the IPC that criminalises all sexual activity other than consensual heterosexual intercourse.

"The judgment does not speak narrowly about privacy alone. It upholds privacy, equality and dignity by reading together Articles 14, 15 and 21 of the Constitution and says that privacy alone is not enough, reaffirming the judgment of Delhi High Court in the Naz Foundation case," professor and LGBTI activist Gautam Bhan told The Telegraph.

In the 2009 case, the high court had held that criminalising consensual gay sex was a violation of the right to life and liberty under Article 21. The Supreme Court overturned this ruling in the Suresh Koushal versus Naz Foundation case, saying only Parliament could change laws and not courts.

"No single judgment has the power to stop harassment but language, like what is used in this (today's) judgment, helps change society. This judgment holds that like one's identity, an individual does not give up privacy even in a public space. Sexual orientation is a part of this. This judgment does not set aside the Koushal order and leaves that to the curative bench hearing the petition against it. But the Koushal ruling cannot stand upto what has been said in this judgment," Bhan said.

Ajita Banerjie, a researcher on gender and sexuality, felt today's judgment upholds the right to privacy, irrespective of how many people are affected. "The definition of privacy has been redefined and broadened... Linking dignity and privacy with sexual orientation has made a strong and substantive case for the curative petition," Banerjie said.

Today's apex court order said "...that a minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders (as observed in the judgment of this court) is not a sustainable basis to deny the right to privacy".

"The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion," the order added.

In its order in the Koushal case, the apex court had said: "...a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders and in the last more than 150 years, less than 200 persons have been prosecuted (as per the reported orders) for committing offences under Section 377 IPC and this cannot be made a sound basis for declaring that section ultra vires..."

Animesh Bahadur, a Manipal-based professor who has worked extensively with LGBTI community, said that with today's order, "it can be inferred that consenting adults including those from the LGBT community cannot be denied their personal liberty"."This judgment will hopefully be helpful in the repeal of Section 377 which in its current form can be seen as a denial of right to privacy. However, this positive development does not mean that the battle of the queer (LGBTI) community is over. The fight for repeal of Section 377 as well as other rights will still go on."

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