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Righting a wrong done to the LGBT community

September 07, 2017 14:22 IST

LGBT citizens also enjoy the right to privacy, right to equality and above all, right to life, like any other citizen, writes Sharad Sharma.

On August 24, 2017, two days after the Supreme Court declared the practice of triple talaq unconstitutional; it was yet another win for the citizens of the country when the apex court declared right to privacy a Fundamental Right, a verdict which could impact on the autonomy, individuality and lifestyle of Indians, including sexual orientation.

The Supreme Court was hearing the petition filed by former Karnataka high court judge, Justice KS Puttaswamy and others.


The nine-judge bench overruled the Supreme Court verdicts delivered in 1954 and 1962 in the MP Sharma case (decided by an eight-judge bench) and the Kharak Singh case (decided by a six-judge bench), which held that the right to privacy was not part of the Constitution.

Chief Justice JS Khehar read out the unanimous operative part of the judgment: “The right to privacy is protected as an intrinsic part of the right to life and liberty under Article 21 and as a part of the freedom guaranteed by the Part III of the constitution” -- thus rejecting the argument of the government that the citizens of India did not have the Fundamental Right to privacy and that there was, at best, common law right.

Ever since the Constitution of India came into being, the scope of Article 21 has been widened covering all the aspects of life and personal liberty, which is the true beauty of this Article.

This judgment takes us back to the Emergency era when the Additional District Magistrate Jabalpur case was decided, in which it was held that Fundamental Rights can be suspended during an Emergency.

The court rectified its earlier mistake by expressly overruling the judgment. Justice Sanjay Kishan Kaul said that the SC should “bury the majority opinion (in ADM Jabalpur) ten fathom deep, with no chance of resurrection.”

Justice DY Chandrachud, son of Justice YV Chandrachud who authored the ADM Jabalpur judgment, said, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed.”

This verdict gives us more than what we actually had hoped for. It has reinforced our faith in the Constitution by giving importance to the Fundamental Rights and by securing liberty.

Further, the 547-page judgment could be a small step towards decriminalising the draconian Section 377 of the Indian Penal Code, which criminalises homosexuality, offering a ray of hope and cheer for the LGBT community.

Now that this judgment has defined privacy, it will have a wide-ranging impact on the rights of the LGBT community.

The court came to the conclusion that “right to privacy cannot be denied even if a minuscule fraction of population is affected. 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.”

Our society continues to be unacceptable of the people belonging to the LGBT community.

Why aren’t we ready to embrace them?

The answer lies with us only.

The conventional and prevalent concept of marriage, morality and religion hold us from socially accepting them. As per customs, only a man and woman can be party to the institution of marriage, ie, only members of the opposite sex can marry each other.

However, we fail to understand that marriage is actually a union of equals. The idea of marriage in today’s world has changed.

It was a major setback for the LGBT community when the Supreme Court in 2013 set aside the Delhi high court judgment of 2009, which had struck down Section 377.

Four years later, the court has revisited its earlier decision by terming the judgment flawed and unsustainable.

Justice DY Chandrachud said, “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual”.

This was strengthened by Justice Kaul who said, “One's sexual orientation is undoubtedly a matter of privacy.”

It is high time we cultivate a positive attitude towards this sexual minority.

Discrimination is the antithesis of equality and the present judgment has made it clear that LGBT citizens also enjoy the right to privacy, right to equality and above all, right to life, like any other citizen.

What a person does within the four walls of his bedroom is his own private affair and the State cannot govern his personal life by dictating terms, unless the matter is of national security.

In a country which is governed by the rule of law, their rights are as inviolable as those conferred on other citizens.

As the curative petition in the matter is pending before the constitutional bench of the Supreme Court, we wait for the day when sexual minorities will gain equality and the fundamental rights are applied to them in true spirit.

Sharad Sharma is a final year law student at Punjab University. He tweets @TheSharadSharma.

Sharad Sharma