RIGHT TO PRIVACY IN INDIA: WHAT’S LOVE GOT TO DO WITH IT?

In August 2017, the Supreme Court of India affirmed privacy as a human right under the country’s constitution. This decision has had potentially far-reaching implications for the lives of millions of LGBTQ-identified people.

In the aftermath of WWII, the United Nations General Assembly ratified the Universal Declaration of Human Rights. Translated into 500 languages, this document delineates fundamental freedoms that should be protected for all of humankind. Article 12 of the Declaration reads, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

A quaint notion?

A universal right to privacy? We live in a world of Wikileaks, Russian hacking of US elections, and FaceBook data breaches. It often seems like everything about anybody can be found on the internet and social media. Can privacy still be a meaningful construct? Furthermore, does it really apply in a country with closely interconnected families, many living in small quarters?

The crucial importance of the privacy ideal was dramatically illustrated in August 2017 when the Supreme Court of India declared that privacy is a basic right for all its citizens. Many raced with this decision to the controversy swirling around the protection of personal information of over a billion inhabitants registered in the government’s Aadhaar biometric identification system. More profoundly, the justices explicitly linked the ruling to the privacy of individual sexuality. Thus, the Court laid the groundwork for monumental social reform long overdue in the world’s most populous democracy: the destruction of Section 377 of the Indian Penal Code.

Landmark decision.

Crafted during the Raj in 1861 by the hand of a British administrator, Section 377 banned the practice of homosexuality. Described as “carnal intercourse against the order of nature”, this offense was punishable by imprisonment for life. While activists have been attempting to wage legal battles over gay rights in India for decades, little progress was made. The law continued to be used to stigmatize, terrorize and blackmail people.

The privacy ruling of 2017 was the breakthrough advocates for the LGBTQ community needed. With lawyers subsequently redoubling their efforts in the legal system, victory for gay rights was won on September 6, 2018. The Supreme Court unanimously struck down 377. Chief Justice Dipak Misra averred that the law was “irrational, indefensible and manifestly arbitrary.”

Cautious optimism.

The Indian Supreme Court’s progressive action is cause for celebration, inspiring hope for new liberty for so many Indians who have been living with parts of their identity in the shadows. However, the LGBTQ community and their allies still have much work ahead in gaining acceptance for diverse sexualities. Socially conservative attitudes and homophobia remain commonplace throughout India. Nevertheless, the September 6th ruling, extending the fundamental right to privacy, represents significant and unprecedented affirmation and protections for Indians’ freedom to love whom and how they choose.

Donna Bender
Global Business Projects, India