Context
- The Right to Privacy (RTP) judgment is a victory for queer persons as it opens out the realm of
possibilities for queer rights under the law. - Rulings like RTP certainly will strengthen the case for the Constitution Benchthat is scheduled to sit and decide on the Koushal case.
Section 377 and its issue
- Same-sex intimacy is understood “carnal intercourse against the order of nature” in the society.
The Koushal case
- The decision on the Koushal case was a lot less vague in its contempt for members of the LGBT community.
- The rights of LGBT persons are not given real constitutional rights.
- The Supreme Court, the highest constitutional court of the country, clearly rejected the right of equal citizenship that the queer community demanded.
- Koushal was indeed met with overwhelming critique, from civil society as well as from representatives of a range of political parties.
- The National Legal Services Authority v. Union of India judgment, while articulating a charter of rights for transgender individuals, also noted that Section 377, though associated with certain sexual acts, effectively targeted specific identities: a finding the Koushal court refused to make. This implicit critique was a gentle reprimand at best.
Righting a wrong
- With the Right to Privacy judgment, the court’s response to Koushal is anything but gentle.
- Justice G.S. Singhvi emphatically noted LGBT Rights cannot be construed as “so-called rights” as the real rights always originate on sound constitutional doctrine.
- The Koushal judgment is also called out for referring its constitutional responsibility with the claim that LGBT persons constitute a tiny fraction of the population.
Beyond decriminalization
- The judges are allowing to imagine possibilities for queer justice beyond the limiting frame of Section 377.
- Even though the court does not make a holding on the constitutional validity of the section, it does find that sexual orientation as an essential attribute of privacy.
- The conclusion of Justice Chandrachud’s opinion goes on to hold that privacy includes at its core the preservation of personal intimacies and sexual orientation.
