The Indian Constitution, Privacy, and Protection of Same-Sex Sexual Conduct

[Kunal Ambasta is an Assistant Professor at the National Law School of India University.]

“Can a right to privacy be read into the Indian Constitution and deployed to protect homosexual sexual acts?”

This is one of the questions posed right at the start of the AIDS Bhedbhav Virodhi Andolan (ABVA) Report on homosexuality in India published in 1991. In 2018, the question posed by the ABVA seems almost prophetic, with the winding down of a long battle against Section 377, Indian Penal Code, and the de-criminalisation of same-sex sexual intercourse between consenting adults. One of the major prongs of reasoning employed by the Supreme Court in partially striking down the provision of law was the protection of privacy.

It is interesting to note that the movement against Section 377 consistently invoked principles of law that are considered universal and inherent in human beings. I aim to briefly sketch the long winded path to decriminalisation and the multiple rounds of litigation that finally culminated in decriminalisation.

What I will attempt to also show is that this litigation has added to the meaning of core constitutional values and human rights in the Indian context, that is meaningful to the rights of other marginalised groups in the future. Further, the movement has itself gained tremendously from other battles that have been waged by other minority groups.

The first legal challenge to the constitutionality of Section 377 was mounted in the Delhi High Court by the ABVA in the year 1994. The petition was grounded in the idea of non-discrimination and centred around the fact that the existence of Section 377 effectively prevented the gay community from access to healthcare and HIV and AIDS prevention, diagnosis and treatment.

We can observe that the idea in this petition was to underline the equality of LGBT persons in the eyes of law and to prevent the state from effectively discriminating against them. The petition was eventually dismissed for non-prosecution by the Court.

In 2001, Naz Foundation filed a writ petition challenging the constitutionality of Section 377 before the Delhi High Court. The petition was at first dismissed on the grounds that Naz Foundation had no standing to challenge the law. However, upon appeal to the Supreme Court, it was directed to be heard fully on merits and sent back to the High Court.

Over this time, a number of other collective organisations joined the challenge, notably, “Voices against 377”, a conglomeration of health professionals, parents, teachers and activists. It was at this stage that we can see multiple grounds being invoked against the provision, grounds which reflect the personhood of the individuals who were affected by the law.

Not only was equality maintained as a ground, but also rights of privacy, dignity and self-expression, often considered to be inherent rights of human beings, were brought before the Court. In a nuanced judgment delivered on 2nd July, 2009, the Delhi High Court reaffirmed the existence and application of these rights to all individuals and read down 377 to exclude acts between consenting adults in private.

The 2009 verdict proved to be a watershed moment in the life of Indian constitutional democracy with the High Court effectively placing constitutional rights and liberties out of the reach of majoritarian whims and fancies. One of the most powerful invocations in the judgment was to the idea of constitutional morality, which was distinct from the idea of a social morality or morality which depends on the majority.

Thus, what the Court recognised was that certain rights and liberties could not be extinguished even if the majority in a society were dead set against them. Not only was this a laudable discharge of the duty of constitutional courts as counter-majoritarian institutions, but also a reiteration of the idea that rights inherent in human beings were not to be realised contingent on social recognition.

However, the Delhi High Court decision was challenged almost immediately by a conglomeration of religious groups and individuals who argued, inter alia, of the necessity of a prohibition on homosexuality to preserve cultural values. Despite the Government of India not challenging the High Court verdict, the Supreme Court chose to entertain these petitions.

On 11.12.2013, a Division Bench of the Supreme Court, comprising of Justices Singhvi and Mukhopadhyaya, delivered its judgment on the appeals and overturned the High Court verdict. This judgment, popularly referred to as “Koushal”, was effectively, a re-criminalisation of the lives of LGBT persons across the country after more than four years of the striking down of 377.

What is notable in the judgment is its disregard for the subjective experiences of LGBT persons who had been affected by the law. The Court held such people to constitute a “miniscule minority” of the population and their rights as “so called”. What can be seen here is an understanding of the existence of rights contingent on the number of people who claim them. This, then, is a perfect example of majoritarian privilege. The claims based on rights such as privacy, dignity and freedom of expression received scant regard in the judgment. This may not be surprising given that the premise seems to have been that the groups claiming them were not numerically significant to be taken seriously.

After the verdict of the Supreme Court was delivered, a petition to review it was filed and dismissed by the Court. Thereafter, a curative petition was filed, which was admitted and was held to have sufficient importance to merit a full hearing before a specially constituted bench comprising of five judges. Legally speaking, at this time, Section 377 was fully resurrected and applicable to the lives of LGBT persons. However, developments reaffirming the rights of other minorities were also forthcoming during this period.

On 15.04.2014, the Supreme Court delivered a historic verdict in NALSA v. Union of India, recognising the constitutional rights of members of the transgender community in the country. It also observed that 377 had been used to harass and target transgendered people. The decision recognised the rights of privacy, dignity and liberty of transgendered people and mandated that the State must recognise their gender expression and not discriminate against them.

With the curative petitions against 377 still pending, the Supreme Court decided the case of Puttaswamy v. Union of India on 24.08.2017. The Court recognised the Fundamental Right to privacy of all individuals and specifically singled out the Koushal judgment as a discordant note in the understanding of rights under the Constitution. One could note that this verdict swept away the specious reasoning of Koushal as unable to bear any sustained scrutiny. However, it refrained from ruling on 377 as it was not an issue before it.

The right of privacy recognised by the Supreme Court through the decision of Puttaswamy is connected to the dignity that inheres in all human beings. The rights of life and liberty guaranteed in Article 21 of the Constitution extend to protecting a dignified life for all and not mere existence.

A constituent part of ensuring a dignified life is to respect the sexual autonomy and gender identities of persons and to recognise the fact that these decisions go to the very core of how an individual may choose to define themselves. To discriminate against a person’s gender or sexual identity consequently strikes at the very core of personal dignity and right to free existence and liberty.

Therefore, not only should a right exist for the law to not discriminate against these fundamental aspects of personhood, but it also follows that a realm of privacy surrounds these facets of individual life which the State has no business to encroach upon or to regulate. This understanding of dignity and privacy is transformational in that it does not attach itself with the privacy associated with physical spaces alone, viz. a person’s home or belongings, but also to certain decisional aspects of living.

With the filing of the writ petition by Navtej Singh Johar, and the numerous intervening petitions alongside it, the final battle against the vires of 377 began before the Supreme Court. In its unanimous verdict delivered on 06.09.2018, the Supreme Court finally and conclusively struck down 377 as violative of the rights to equality, self expression, privacy and dignity guaranteed under the Indian Constitution.

The Court displayed a nuanced understanding of the rights of individuals and constitutional morality. It reiterated the Delhi High Court’s 2009 decision ruling in favour of the petitioners. Further, the Court also held that sexuality minorities could not be denied equal moral and civic citizenship of the country.

Over the period of time that Section 377 has been challenged, the LGBT movement also grew into a vociferous and vocal demand for rights and recognition. The common thread running through legal triumphs associated with the fight against legal discrimination has been a reliance on Fundamental and universally recognised rights of individuals.

Through the cases discussed above, not only have these rights entered the lexicon of adjudication and interpretation of constitutional issues, but have also enriched the understanding of the Constitution of India. One can say that the notion of the Constitution being a dynamic document which can encompass within itself an expanding notion of rights is demonstrated through this struggle. The understanding of constitutional morality and the role of the courts in safeguarding rights against majoritarian opinion has been established through these cases.

Further, individual liberty, dignity and privacy are important touchstones to test the application and effect of any law that may in the future discriminate or regulate choices that individuals make in their lives irrespective of their being parts of minority groups. The judgment furthers an understanding of liberty across the barriers of sex, sexuality and gender as well which would be useful for future battles extending the horizons of civil rights.

Quite fittingly, the judgment decriminalising same-sex sexual conduct also noted the fact that history and civilisation has often been brutal to its minorities. To state that a debt of apology is owed to members of the community who have suffered because of Section 377 is to acknowledge the vast injustice that has been historically meted out to them. Decriminalisation is perhaps the first step towards the righting of wrongs and of guaranteeing the rights of all minorities across civil boundaries.