India’s Supreme Court ruled Thursday that people have a fundamental right to privacy, curtailing the Indian government’s efforts to implement the world’s biggest biometric database. But the court also recognized, for the first time, that sexual orientation is an essential part of privacy and dignity, paving the way for LGBT equality in India and beyond.
The ruling comes after years of both advances and setbacks for LGBT people in India. The country’s so-called sodomy law, Section 377 of the Indian Penal Code, punishes “carnal intercourse against the order of nature” with up to life in prison. Despite spanning only five of its 265 pages, the open and eloquent recognition of LGBT rights and lives is one of the most striking features of the Supreme Court’s judgment.
It is difficult to overstate the significance of hearing LGBT lives discussed in the language of rights and dignity in an Indian court. For India’s entire history since its independence in 1947, Section 377 has reinforced the idea that discrimination and mistreatment against LGBT people is acceptable in Indian society. Although the privacy judgment does not render Section 377 void, it does suggest that targeting sexual minorities under the law is illegitimate and unconstitutional.
More than 1.3 billion Indians may be closer to a legal system where it is not illegal for them to be who they are. In February 2016, the Supreme Court agreed to hear a “curative” petition that appeals the 2013 decision that upheld the discriminatory law criminalizing same-sex relations. The lawyer who is arguing that petition before the court, Anand Grover, said he expects that “the privacy judgment will be very helpful. I don’t think [the 2013 decision] will be able to withstand this challenge in the curative petition.”
India’s emerging jurisprudence of LGBT equality is likely to reverberate in courts across South Asia, if not beyond. India’s Section 377 was the first colonial sodomy law included in a post-colonial penal code, and it became a model law for countries throughout Asia and as far away as Africa. The construction of homosexuality and gender nonconformity as something “Western” has also long been an obstacle to LGBT equality in many of these countries. If India can move past its colonial legacy and treat its LGBT citizens with respect and dignity, why not other countries? Read more via World Politics Review