The spirit of what the Supreme Court said this Monday lies in its 2017 ruling on the right to privacy.
The year 2018 has started on a hopeful note. Amid the avalanche of bad news, there was one that cheered. The Supreme Court said this week what needs to be said, and internalised, again and again — the miniscule matters.
The court’s decision to revisit its own 2013 verdict upholding the constitutional validity of Section 377 of the Indian Penal Code is great news.
For those unfamiliar or vaguely familiar with the context, here’s a brief recap. The infamous Section 377 IPC goes back to colonial times — 1861, to be precise. Modelled on the Buggery Act 1533, it was introduced by the British, and criminalises sexual activities “against the order of nature”. These include homosexual sex, but are not confined to it. This archaic, regressive, colonial-era law treats a same-sex relationship as an “unnatural offence” punishable by a jail term of up to 10 years. In July 2009, the Delhi high court in a pathbreaking order decriminalised this section, with respect to sex between consenting adults. But in four years that judgment, which brought hope to so many people within the country, was overturned by India’s highest court which held that amending or repealing Section 377 should be left to Parliament, not the judiciary.
In the years that followed, there have been many who have worked hard to end this discrimination, spoken out passionately against the re-stigmatisation of same-sex love and worked hard for justice. Last August, the Supreme Court raised hopes hugely when it ruled that the right to privacy was a fundamental right, and stated that the protection of sexual orientation lies at the core of the fundamental rights.
This Monday, a three-judge Supreme Court bench, comprising Chief Justice Dipak Misra, and Justices A.M. Khanwilkar and D.Y. Chandrachud, reaffirmed the spirit of the 2017 ruling by referring to a Constitution Bench a petition seeking to repeal Section 377. The petition had been filed by five prominent Indians who are also members of the lesbian, gay, bisexual, transgender (LGBTQ) community.
Two nights ago, I celebrated the court’s decision by drinking a glass of the finest Merlot in a restaurant in my neighbourhood. It happens to be owned by one of the petitioners, restaurateur Ritu Dalmia.
I was alone and in a festive mood not only because the court’s latest ruling brings cheer to India’s LGBT community but also because this reaffirms the individual, even if s/he is in part of a miniscule minority.
The spirit of what the Supreme Court said this Monday lies in its 2017 ruling on the right to privacy. In that judgment, Justice Chandrachud had said: “That ‘a miniscule 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.”
In other words, an idea or an act doesn’t become illegitimate simply because it fails the test of popular acceptance. This might appear to be a commonsense view in a democracy. But when words, worldviews or actions are sought to be discredited simply because they don’t have the backing of numbers, and when an individual can be lynched simply because of his/her culinary preferences, it bears repeating.
An individual matters — an individual has a right to privacy. As India’s top court has told us, privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. It also implies a right to be left alone. Personal choices lie at the core of privacy.
How a woman or a man lives, loves, recreates, whom s/he wants to spend her/his life with, what books and films s/he prefers, what s/he eats is of no concern to anyone else. As long as we are not breaking the law, we are not obliged to seek validation for our personal choices from others. And we don’t have to accept the general public’s acceptance or rejection of our choices as the defining principle of our lives. Some of us seek public acceptance more than others. That is perfectly understandable, but eventually adults should be left to lead their lives as they choose, provided one takes responsibility for one’s choices.
An idea can be potent even if initially it has few takers. when someone uses the argument of numbers to make his/her point, you know s/he doesn’t have an argument because even the miniscule minority matters, as the Supreme Court affirms.
Individual choice is not just about the individual. It is also about society. If the West, with all its flaws, is ahead in innovation, it’s at least in part because it values the individual and individual choice with its attendant promises and pitfalls.
As a child growing up in a progressive Bengali family and whose formative values were shaped by enlightened parents, I realise that I am extremely privileged. Many women — and men — that I have met are not allowed to have choices. Things are changing, but millions in this country still don’t get to decide till what stage they will study, what they will study, who they will love and share their life with, and what they do in their leisure hours. They live in fear of majority mores. Such fear disempowers and the marginalised lead sub-optimal lives, impacting the nation as a whole.
If you are a heterosexual, ask yourself what it must mean to be gay in a milieu that vilifies and criminalises same-sex desires? How would it feel if your emotional and sexual attachments could get you beaten up and put behind bars?
One needs to engage with the debate on Section 377 irrespective of one’s sexual orientation because it’s a window not just to the LGBT world but because it triggers questions about exclusion in its myriad forms.