After the Supreme Court judgment in 2013, in Suresh Kumar Kaushal v/s Naz Foundation case (IPC 377 case), non-procreative intercourse between consenting adults continues to be regarded as a crime.
THE APEX court’s declaration on Thursday that the Right to Privacy was a fundamental right, received a resounding applause by the lesbian, gay, bisexual, transgender, questioning and intersex (LGBTQI) community.
“Thank you, Supreme Court,” was the reaction of the members, who added that the SC judgment would have a far-reaching impact on their rights.
Talking to The Indian Express, gay rights activist Bindumadhav Khire, said, “With Right to Privacy coming under the ambit of Article 21, as a fundamental right, it will significantly boost our case, currently, pending as a Curative Petition in the Supreme Court for reading down of IPC 377, to decriminalise consensual non-procreative sex.”
Khire is the president of Sampathik Trust, which works towards creating awareness about health and related issues among the LGBT community.
After the Supreme Court judgment in 2013, in Suresh Kumar Kaushal v/s Naz Foundation case (IPC 377 case), non-procreative intercourse between consenting adults continues to be regarded as a crime. This applies not just to gay sex, but also to heterosexual adult couples having consensual non-procreative sex in private. This case was fought on the grounds of Fundamental Rights Article 14, 15, 19, and 21.
Khire added that, “The judgment in the case, filed by National Legal Services Authority, gave only socio-economic rights but did not talk of sexual rights of transgenders. Today’s judgment will help in getting these rights for transgenders.”
Another LGBT rights activist and an IT professional Souvik Ghosh said the SC judgment was a landmark one in protecting a citizen’s right to live with dignity, as granted by Article 21 of our constitution. “We hope the same arguments and premises, based on which this judgment has been delivered, will be upheld in the future by the SC in favour of the curative petition on Sec 377, which is pending a hearing,” said Ghosh.
He added that the judgment intrinsically accepts that consensual sexual acts of any kind between two adults within the privacy of one’s own bedroom cannot be termed unlawful.
‘Govt bound to find loopholes in verdict’
Noted author and poet R Raj Rao said the new Supreme Court ruling does not really amount to much. “The government is bound to find loopholes in the verdict. I heard on TV the other day that the Maharashtra government was toying with the idea of giving the police a carte blanche to enter people’s homes and check if they had stocked beef in their refrigerators. I thought then that the next thing would be for them to ring people’s doorbells to find out whom they slept with. Same sex couples would be especially vulnerable and liable to arrest, given that Section 377 of the IPC is still in force,” he said.
The author whose latest book, Criminal Love: Queer Theory, Culture and Politics in India, will be released at the Pune International Literature Festival on September 9, told The Indian Express, that since the Supreme Court has upheld the right to privacy as a fundamental right, this may not happen, at least for now.
“But LGBT people want to come out of the closet and be open about their sexual preferences, like heterosexuals. They do not merely want to have sex in private. If anything, this ruling is bound to ensure that more and more LGBT people will stay closeted, and regard their sexual orientation as only a preference (may be even a tendency) but not an identity. More of us will continue to live double lives, a private life for our own sake’s, which is now safeguarded by the right to privacy, and a public life for the sake of others,” he added.
