This article was written by Shreetama Ghosh, a student of Rajiv Gandhi National University of Law.
– Introduction –
The right to privacy has been a burning topic in India since the LGBTQ case of Suresh Kumar Koushal v. Naz Foundation (hereinafter referred to as the “Suresh Koushal case”) was decided by the Supreme Court, which reversed the Delhi High Court judgement decriminalising homosexuality. Because of the dispute over the legal position of right to privacy, an issue raised in the case of Binoy Viswam v. Union of India and Ors. (hereinafter the “Aadhar Card case”), a nine judges bench of the Supreme Court was constituted to settle the matter decisively. After continuous hearing and reserving the judgement for over a fortnight, the Apex Court decided that the right to privacy is a fundamental right immanent in Article 21 of the Constitution of India, thereby overruling all earlier decisions which ruled to the contrary.
This landmark judgement has now evolved another fundamental right to be included in the ever-widening ambit of Article 21. With this landmark decision of the Supreme Court, not only the verdict in the Aadhar Card case, but also on disputed matters like the decriminalisation of homosexuality, beef ban and alcohol consumption, as well as the ongoing WhatsApp case will be affected. Thus, it is being hoped that the Apex Court will soon hear the curative petition filed against the review petition verdict in the Suresh Koushal case, and it will have to give weightage to the right to privacy argument of the LGBTQ activists, in the light of this development in the scope of Article 21.
– The Naz Foundation Case –
In the case of Naz Foundation v. Government of NCT of Delhi (hereinafter the “Naz Foundation Case”), Naz Foundation, an Indian NGO by the name of Naz Foundation, working with HIV/AIDS sufferers, brought a PIL before the Delhi High Court, contending that the Section 377 of the Indian Penal Code, 1860 (IPC) was unconstitutional. The NGO claimed that Section 377 was violating the basic human rights of the LGBT community as they are denied the right to express their sexual orientation and when they do, they are refused equal treatment due to their sexual orientation. Thus, their rights under Articles 14, 15, 19 and 21 were being infringed. The NGO further put forward how an entire community was facing discrimination, harassment and assault at the hands of public authorities, thereby forcing them to hide their real identities and making them even more vulnerable to abuse at the hands of the orthodox sections of the Indian society.
These were the findings that the Naz Foundation came across while treating the HIV/AIDS sufferers from the LGBTQ community, who admitted that they not only feared coming out of the closet but also seeking medical help for any problems they faced due to their sexual orientation and preferences. This had been causing problems for the NGO for quite some time as they were unable to get the people of this community to get the required medical attention and when they delved into the realities, they had no option other than filing this writ petition.
Section 377 declares as criminal any sexual act which does not fall in the category of natural sexual act of penile-vaginal penetration, irrespective of whether the act was consensual or forced. This Section was defended by the Ministry of Home Affairs on the grounds that its removal would lead to increased delinquencies and that it filled a gap present in the rape laws of our country. However, that argument is ridden with flaws as the Section declares even “voluntary” unnatural sexual acts as a criminal offence, thereby making it a tool in the hands of the legal authorities to be used against the LGBT community.
After the petition was filed, the National Aids Control Organisation (NACO) and 12 additional NGOs filed intervention applications to join the petitioners in their argument that Section 377 violated the fundamental rights of the LGBTQ community. The NACO and the Ministry of Health, responding to the argument of the Ministry of Home Affairs that decriminalising sodomy will increase the incidence of HIV/AIDS, provided statistics proving that Section 377 is counter-productive to the efforts to prevent and treat HIV/AIDS among the LGBTQ community, which is considered a high-risk category, as they are afraid to be handed over to the abusive law enforcement agencies and is even perpetrating harmful behaviour like unprotected sex.
In this case, the Delhi High Court took the most progressive step in Indian history in the arena of granting rights to the LGBTQ community. The Court held that Section 377 of the IPC is unconstitutional as it denies existence with human dignity to the persons belonging to the LGBTQ community, criminalising their identities under an archaic law which was introduced by the British and thereafter repealed in the UK itself. Moreover, it was found that the retention of this Section was indeed a hurdle in the efforts to prevent and treat sexually transmitted diseases, thereby discrediting the arguments of the Ministry of Home Affairs.
The landmark judgement stated that this provision infringed the right to equality and non-discrimination guaranteed to all the citizens of India under Articles 14, 15 and 16, without the presence of any intelligible differentia. Section 377 does not distinguish between private and public acts, or the age of the parties or even consensual and non-consensual acts, thereby making it a tool not to punish the rape of males but to incriminate consensual sexual activities between homosexuals of age. It not only criminalises their existence but also perpetrates the backward mentality our countrymen possess with regard to the concept of homosexuality, bisexuality, etc. It was observed that the sexual orientation of a person is analogous to the term “sex” used in Article 15 and no one should be subjected to discrimination merely because of their sexual orientation.
It further stressed that criminalising acts such individuals undertake within their bedrooms violates their right to privacy, which although not expressly provided in the Constitution, has been read into the Articles 19 and 21 by the Supreme Court in many cases. It refused to accept the public morality argument of the respondents on the ground that such morality changes with changes in time, places and circumstances, and what is important in granting a section of the society their fundamental rights is only constitutional morality.
The Court heavily relied on the jurisprudence of the different nations where homosexuality and all that it entails had been decriminalised and pursued their reasoning to come to the conclusion that merely opposed public opinion cannot be the reason for depriving certain sections of the Indian society their rights. Taking all of this into consideration, the Court held that Section 377 is unconstitutional to the extent of criminalising consensual sexual acts of adults in private.
The Supreme Court reversed the decision of the Delhi High Court in the Suresh Koushal case, basing the judgement on the following flawed reasoning –
- There is a presumption of constitutionality towards any law enacted by the Parliament and mere abuse of a law by the law enforcement agencies cannot make it unconstitutional, especially since there is no other evidence that proves that it violates constitutional provisions. The Apex Court fails to understand how grave the situation is and how much abuse is faced by the LGBTQ persons.
- Section 377 criminalises certain sexual conduct and not sexual orientation, i.e. the identity, of the LGBTQ community. But the Supreme Court does not comprehend that for the sexual acts which are an expression of a person’s sexual orientation are being incriminated.
- Stating that since the provision applies equally to homosexual and heterosexual persons, there is no discrimination, the Apex Court completely overlooks how the provision is only used against homosexuals, because even “voluntary” sexual acts of the nature described in Section 377 are considered criminal in nature.
- This provision affects the rights of a very small portion of the Indian society, which is no justification for allowing the violation of their fundamental rights for any longer.
- The changes in law in other countries cannot be completely imported into the Indian legal system due to difference in circumstances. Even in this observation, the Supreme ourt overlooks that the IPC had originally been created by the British and this very provision has been scrapped by them as early as in 1967.
- The law has to be changed by the Parliament and this power was beyond the jurisdiction of the judiciary, which is a mere excuse because there have been numerous instances in which the Apex Court has interfered in the law-making powers made by the Parliament because the Parliament refused to bring about a much-required change.
There has been a review petition against this judgement since, which has upheld the above verdict. Thereafter, a curative petition has been filed before the Supreme Court, which is yet to be heard and decided.
– Effect of the Right to Privacy Verdict on Section 377 –
It has been speculated by the legal experts and LGBTQ rights activists that the right to privacy verdict would have a major bearing on the pending curative petition on the constitutionality of Section 377.
Chandrachud, J. has observed that the fundamental right to privacy can be divided into three spheres – intimate, private and public. The first sphere is the most intimate zone of privacy concerning marriage, sexuality and relations with family – a sphere that the law should refrain from intruding in, except in extraordinary circumstances that met with stringent norms. The second sphere is a private zone which involved the parting of personal data by the use of credit card, social networking platforms, tax declarations, etc. which can be used only for the purpose for which it was shared. The third is the public zone where the privacy protection requires minimal regulation where the personal data shared is not a breach of the right to privacy; however, the individual can retain his privacy to body and mind. 
It was further observed that
It is an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation, which are all important aspects of dignity.
Kaul, J., in this judgement, held that the right to express one’s sexual orientation is a part of the fundamental right to privacy. Thus, this judgement strengthens the basis for challenging Section 377.
Certain excerpts from the judgement prove that the nine judge bench has criticised the judgement in the Suresh Koushal case. Chandrachud, J. has disagreed to the above judgement, stating
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.
Further holding that
Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.
the bench brought down the very basis of the Supreme Court’s verdict in the Suresh Koushal case. The bench further disagreed with the Apex Court’s observation in that case that the rights of the LGBTQ community are “so-called rights” and stated that
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.
It has been decisively held by the bench that the sexual orientation is a part of the identity of an individual and that equal protection demands protection of the identity of every individual without discrimination.
The decision in the Suresh Koushal case further followed the de minimis rationale, stating that there have been only 200 prosecutions under Section 377 and therefore, the alleged abuse of powers under this provision should not cause the Section to be struck down. The current bench held that the blatant violation of fundamental rights cannot be justified on the ground that very few persons, as against a large number, has faced such violations. Thus, in this case, five out of the nine judges effectively removed the bases of the judgement in the Suresh Koushal case.
– Conclusion –
It is to be understood that this judgement is of great import to the Section 377 challenge and it is being hoped that the bench hearing the curative petition will take into consideration the fundamental status of the right to privacy in order to decide the (un)constitutionality of the archaic provision which has criminalised homosexuality for ages now.
 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
 Binoy Viswam v. Union of India and Ors., (2017) 7 SCC 59.
 Naz Foundation v. Government of NCT of Delhi, 2009 SCC OnLine Del 1762.
 Dhananjay Mahapatra, Supreme Court for 3-tier Right to Privacy: Intimate, private and public, Times of India (Sept. 2, 2017, 11:30 P.M.), http://timesofindia.indiatimes.com/india/supreme-court-for-3-tier-right-to-privacy-intimate-private-and-public/articleshow/59889604.cms.