Remarkable events occurred in the Supreme Court of India earlier in the week. One was a chipping away at the oppressive patriarchy that infiltrates all organized religion, in this case reflected in the rejection of the custom of instant triple talaq in India. Another was of the pushing back of the oppressive State from the lives of Indians through the categorical assertion of the Fundamental Right to Privacy as unambiguously inherent to human life.
The second was remarkable for a few reasons. For one, the emphatic nature with which the Supreme Court articulated the right to privacy – if only the judgment was considerably shorter, and the reading habit ascendant – the stirring words of the court are a must-read for every Indian. They evoke the finest attributes of human nature; they inspire us to be better in our personal and public conduct, with and for each other, and for a society that aspires to its highest capacity to support all its segments.
I remain dazzled. From accounts that were written about the arguments that took place in the courtroom, the court would probably acknowledge that its eloquence was allowed to flourish due to the eloquence of the lawyers arguing before it.
The court, while expressing condemnation of its own reasoning in Koushal in relation to the rights to privacy and dignity, points out that as the curative petition challenging Section 377 (and seeking to remedy Koushal) is pending before another bench of the court its constitutional validity should be decided there. This essentially means that the Supreme Court has acknowledged the need to relook at the Koushal decision given its faulty understanding of the right to privacy. Indeed, I believe the court is implicitly telling the queer communities to come before it – again – for it seems open to the re-examination of an unjust ruling. Unexpected and remarkable!
Main graphic credit: Pawan Dhall (collage of media headlines on the Supreme Court's verdict on right to privacy – the headlines are, clockwise from the top, from Ei Samay, Hindustan Times, Amar Ujala and The Indian Express newspapers and NDTV channel).
Vivek Divan is qualified in the law and queerness. He has been involved in HIV- and queer-related activism for almost two decades, including critical community mobilization around the Naz Foundation (India) Trust petition against Section 377 as Coordinator of Lawyers Collective – HIV/AIDS Unit, 2000-07.