A new chapter begins for rainbow crusaders
NEW DELHI: Virtually reopening the Naz judgment on LGBT (lesbian, gay, bisexual and transgender) rights, the Supreme Court on Thursday said that just because “a minuscule fraction of the country’ s population constitutes lesbians, gays, bisexuals or trans genders” is not a sustainable basis to deny the right to privacy.
Ruling on whether citizens have a right to privacy or not, the court touched on the rights of LGBT vis-a-vis privacy and said, “Sexual orientation is an essential attribute of privacy. And we disagree with the manner in which Koushal (LGBT rights judgment) has dealt with the privacy – dignity-based claims of LGBT persons in this aspect. “
The privacy verdict goes on to say, “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. 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.”
After spelling out its views on the LGBT rights, the court stopped short of saying, “Since the challenge to Section 377 is pending consideration before a larger bench of this court, we would leave the constitutional validity to be decided in an appropriate proceeding.”
In July 2009, the Delhi HC read down section 377 of IPC that criminalised sex between consenting gay adults. But in December 2013, the SC reversed the verdict and re-criminalised gay sex.
Justifying its ruling, the Supreme Court then said, “The high court overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in the last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.”
But Thursday’s verdict has brought a glimmer of hope for members of LGBT community as they welcomed it. “I am over the moon,” said Anjali Gopalan, founder of Naz Foundation that petitioned HC in 2001 against Section 377. Members of the community hailed the verdict and said it would boost their fight against a 2013 top court judgment – popularly known as the Suresh Koushal verdict – that left it to Parliament to scrap section 377 that bans “unnatural sex”.
“I welcome this judgment. It is a relief to hear sexuality spoken of in the language of rights and dignity,” said Gautam Bhan, activist and one of the original petitioners against section 377. Lawyers associated with the case said it would help in the curative petition against the 2013 verdict. “The judgment will be very helpful. I don’t think Koushal will be able to withstand this challenge in the curative petition,” said senior advocate Anand Grover.