Harish Iyer

The 9-member bench in Supreme Court has upheld the right to privacy as a fundamental right. My faith in my constitution and my nation has been restored by the apex court of my country. This could well be the beginning of many firsts. This could steer several conversations and could push our nation – the largest democracy in the world – towards the path of equality.

India has been grappling with several challenges that has accentuated in the past few years. While we don’t really see our cities get any safe, people have been mob lynched for eating beef. Lovers have been attacked in the name of Love Jihad. There has been an uprising of sorts.

Here is what I think the historic #RightToPrivacy judgement could eventually end up meaning to a beef-eating, Muslim, Dalit, LGBT Indian. The caveat here is that these would be possible only if laws like section 377 are read down.

Before the #RightToPrivacy judgement…

Right to Love

LGBT activists. 
LGBT activists.  (Photo: Reuters)

The state could peep into your bedroom, as under section 377, ‘sex against the order of nature’ is a non-cognisable offense. Which loosely translates to any kind of sex that is not for the purpose of procreation. Anal sex, oral sex all come under this ambit. Gay, Bi and Trans people have oral and anal sex so they get affected directly.

However, it is not just the queer community that is affected. Section 377 has been used in heterosexual marriages where the wife has claimed that he husband has tried having “unnatural sex” with her.

The state believes that the front door entry is the only entry. But who is the state to decide the pleasure points in my body? What if I get titillated by anal sex? Is the law going to decide how I should make love, how I should seek pleasure? Should the law decide what makes me feel orgasmic?

Right to Eat

Junaid was stabbed to death and his brothers were injured by a mob that allegedly hurled communal slurs against them onboard the Delhi-Mathura passenger train.
Junaid was stabbed to death and his brothers were injured by a mob that allegedly hurled communal slurs against them onboard the Delhi-Mathura passenger train. (Photo: Rhythum Seth/The Quint)

In gay terms, ‘beef-cake’ means a real hot dude. But the easily offended government takes such things way too seriously. There have been cases of people’s houses being searched for beef. Mob lynching, public thrashing, killings, has become a commonplace in newsprint and TV channels. The ones who objected to cow killings were not all animal lovers, because if they were, they would have stood up for the abuse of cows in dairy farms.

You cannot speak about cow-love with paneer makhanwala on your plate. So no, this is not about animal welfare – this is about upper caste Hindu propaganda.

Right to Religion

A Muslim woman prays. Photo for representational purpose. 
A Muslim woman prays. Photo for representational purpose.  (Photo: The Quint)

Sonu, Tula “Azaan” Var Bharosa Naai ka?

Who can forget Sonu Nigam’s dramatic claim that azaan leads to noise pollution? How about bhajans in Mumbai local trains? Or the Ganpati festivals that Muslims are happily a part of?

So basically, in the pre-#RightToPrivacy era, if you were a beef-eating Muslim Dalit LGBT person, you have found yourself in the category of people who are least respected – just above how animals are treated in this country.

What happens now with the distinguished 9-member jury bench upholding the #RightToPrivacy?

What the 9-member bench said on Section 377:
Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.The view in Koushal that the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons” is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. The expression “so-called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.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. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.
Image used for representational purposes. 
Image used for representational purposes.  (Photo: The Quint)

This could mean the change in more laws. Laws like section 377, and also the laws that make beef-eating illegal that reeks of majoritarian mindsets. What would it mean to a Dalit Muslim beef eating queer person?

  • Your right to make love to a person of your choice is restored. The state cannot peep in.
  • Your right to practise any religion is restored. Of course, Sonu can tweet away to glory and that can make him the “it” story. However, you can practise your religion.
  • Any discrimination against anyone on the basis of sexual orientation, caste, creed, colour, religion could be deemed illegal. So soon, someone calling you out as gay or a housing society denying you a home because you are Muslim; Or your colleagues demanding that you be thrown out because you eat beef or have a same-sex partner – could be all illegal.

Of course, this is a reason to rejoice. But before you get your champagne bottles out, remember, this road is long. Changing mindsets is not a day’s job or that of one ruling. It will take eons for that.

But thank you Supreme Court, for putting our train on the speed rails. We have now become democratic once again.

https://www.thequint.com/blogs/2017/08/24/right-to-privacy-what-it-means-to-beef-eating-muslim-dalit-lgbt-indian

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