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Thursday, May 06, 2021

‘Today’s Right to Privacy judgment will have a tremendous impact on Section 377’

Suppose the right to privacy hadn’t been granted, then it would have meant that the government or anyone or any agency for that matter could get to you in the privacy of your own home.

Written by Anjali Gopalan | New Delhi |
Updated: August 25, 2017 1:00:40 pm
anjali gopalan, naz foundation, delhi high court 377, section 377 Image for representational purpose. Express photo by Partha Paul.

The Supreme Court’s Right to Privacy judgment is a fantastic one and clearly has very far-reaching implications on a number of issues. Increasingly, many of us had been feeling trapped by what is happening with Aadhaar card; and the obvious other big piece for me is Section 377. The ruling that privacy is a wholly qualified fundamental right has a huge impact. Suppose the right to privacy hadn’t been granted, then it would have meant that the government or anyone or any agency for that matter could get to you in the privacy of your own home. If you recall the case of Professor S. R. Siras at Aligarh Muslim University, local journalists had barged into his bedroom and filmed him. That kind of a violation cannot happen now. The judgment explicitly made note of the application of right to privacy in matters of sexual orientation.

The argument is the Delhi High Court judgment on section 377 in 2009 was based on the premise that right to privacy is integral to human dignity and therefore you need to strike down something that is happening within four walls of the home between consenting adults, from the purview of this law. Of course, if it is not consensual or with a minor, then it is, without a doubt, rape and criminal. But it is consensual, the state has no right to interfere.

I feel proud that our courts have given such a judgment. What people need to understand is that the Delhi High Court judgment had been a decriminalisation of homosexuality for consenting adults. It was not like any great rights were granted to the LGBT people. They do not automatically get the rights that all other citizens take for granted like the right to marriage, right to inherit, right to adopt etc, even after homosexuality gets decriminalised. But decriminalisation is the first, necessary step and right to privacy would have a huge role in that.

When you look at our other rights which are more inclusive and non-discriminatory. The laws have given the entire population certain rights and are not questioning why that said population is getting married. The problem is only arising when there is marriage between same sex couples. The Supreme Court has a very good transgender judgment from 2016 but what does it mean if section 377 is still in place? It is a denial of the sexuality of transgender people because they also fall within the purview of 377. So these two judgments are actually in contravention of each other.

If you look at the Delhi High Court judgment, the Naz Foundation had basically asked for a reading down of the law because child sexual abuse was prosecuted under this law. Now with POCSO (Protection of Children from Sexual Offences) Act having come into existence, the only relevant aspect of 377 is the part which covers violence against animals. Personally because I also work with animal rights, I would not want that to go because there is a lot of violence against animals in our country and the law protecting them from it are very weak. But it makes absolutely no sense for the LGBT community to be hindered by the law.

In spite of the Delhi High Court judgment being a wonderful one, it had been set aside by the Supreme Court in 2013. Luckily, the apex court is willing to listen to the curative petition. The way it has delivered the right to privacy judgment will definitely strengthen our arguments.

(As told to Nandini Rathi)

Anjali Gopalan is a human rights activist, founder and executive director of The Naz Foundation Trust.

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