What fundamental right to privacy means for India's LGBTQ and Section 377
A friend of mine put things in context with an inspiring message this week: "Woke up on the right side of the bed today, but the government won't know which side anymore because right to privacy." In its dark comical tone, what the post really put into perspective is the sheer value the right to privacy has in the lives of citizens.
During the past week, which has been marked by constitutional victories, the elevation of a right to a guaranteed fundamental right is not the result of popular demand, but a move to protect the element of choice over the disdain of majorities. With this ruling, the apex court has set things in motion to protect its integrity by really announcing that constitutional rights are not guaranteed only when their exercise is favourably regarded by majoritarian opinion. They are binding in nature, and hence need to be uplifted by the true vanguards of justice.
India is a nation of closets, the male here progressively numbs himself to any public display of affection and emotion under the constant fear of losing his undisputed title of "mard" and masculinity. However, the level of scrutiny the people of different sexual orientations have had to deal with is immeasurable in this context, but at least now they have a chance - to safeguard themselves from the twitchy glaring eyes of security personnel and goons, who proclaim themselves the rightful protectors of culture and honour (let that sink in).
The Supreme Court's historic ruling on August 24 - declaring privacy as a fundamental right - not only looks at dethroning the master puppeteer off its damning hooks, but also allows ordinary citizens to flaunt their identity. This looks like the ray of optimism that could have a snowball effect, and pave the way for more democratic decisions as well as to further incentivise the policy framework. A lot of deadwood colonial era laws need to go, and the right to privacy could just be the domino effect this country needed.
The decision, however, shouldn't be seen as a tactical manoeuvre to woo emerging classes but as a primer to how things could turn out in the near future - and the lingering schools of thought that surround Section 377. But there is no apprehension whatsoever that the consensus the nine-judge constitution bench of the Supreme Court reached sought to drain section 377 off its powers.
With the refreshing addition of the all new fundamental right, what happens behind closed doors is now protected under the Constitution. It will now act as a self-implicating wound for societal germs who impose themselves into the lives of others. Because now to "prove" the violation of one, they will be crossing the line that is fundamentally defended by the constitutional realm. What is truly uplifting about the judgment is its literary framework - it not only attacked the reasoning of the inhumane decision but also announced that the protection of sexual orientation lies at the core of fundamental rights guaranteed by the Constitution.
"A miniscule fraction of the country's population constitutes of 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 decision is a strong statement that will resonate within the ecosystem of religious fundamentalists who misinterpret sexuality, and believe that majoritarian thinking can be imposed here.
There is little doubt that the oxygen supply to Section 377 needs to be cut off, so that it can reverberate as far back as its colonial roots where it found much joy in bringing pandemonium to the lives of "human beings" (the term did not exist then, ask anyone from the African continent).
Several dialogues have been tirelessly spread out in the open which wanted the courts to recognise that the question of gender identity is closely related to the question of sexual orientation and desire.
Culturally, we aren't widely regarded for our ability to let things be and we look for our own reasoning in order to satiate that itchy feeling we get when the doors of comment are shunned. Then such cultural judgment partners with fiction to embark upon a journey of character assassination in the name of societal retribution. In the digital age, it's not machines we need to be wary of, it's the exoskeleton behind the real puppeteer, sitting on a throne labelled "judgment".
Now that we have the fundamental right to practise our beliefs and express ourselves in the safety of our homes, we will see more people embracing their true selves and not be subjected to meddling by communities or sacrifices at the altar of integrity. We are safe now with all the characteristics of privacy intact within.
Maybe the price for safety doesn't always result in the loss of privacy.