New Indian Supreme Court Ruling Sets The Stage For Overturning Gay Ban

LGBT rights "are not 'so-called,' but are real rights founded on sound constitutional doctrine," the court said in a ruling today.

A ruling from India’s Supreme Court today paves the way for the country’s sodomy ban to be overturned. In a case involving the mandatory use of ID cards, the country’s high court determined that citizens have a fundamental right to privacy.

Homosexuality is still illegal under Section 377 of the penal code, which bans all sex other than heterosexual missionary position. The law was overturned in 2012, but reinstated by a Supreme Court ruling in 2013. A bill aimed at overturning Section 377 was introduced in March, but is still pending in parliament.

Identification cards, known as aadhaar, necessitate the collection of biometric data via fingerprinting and iris scans. But the court ruled such requirements constitute a violation of privacy, a fundamental right guaranteed by the Indian Constitution.

Today’s ruling wasn’t specifically related to the ban, but in their verdict the judges also specified that discrimination based on sexual orientation was unconstitutional.

“Sexual orientation is an essential is an essential attribute of privacy,” the decision read. “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 rights of lesbian, gay, bisexual and transgender population cannot be construed to be ’so-called rights'” the ruling continued, referencing the language used in the 2013 reinstatement of the sodomy ban. “Their rights are not ’so-called,’ but are real rights founded on sound constitutional doctrine.”

But a repeal of Section 377 is far from a forgone conclusion: When legal minister Ravi Shankar Prasad was asked how the ruling would affect the law, he equivocated.

“I think today is an important day for the poor and underprivileged and right to privacy. On that issue, we will revert to it at sometime in the future.”

Still, the excitement was palpable on Twitter.

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