NEW DELHI: The first time that privacy jurisprudence interlocked with sexual orientation was in the form of the Wolfendon Committee Report of 1957. The Wolfendon Committee had been created to consider the issues of homosexuality and prostitution. The report of this Committee concluded that, consensual liaisons between consenting adults within the privacy of their homes, was not to be legislated upon. The rationale behind this was that law was meant to maintain public order and, not, to intrude into the private life of citizens.

This report had huge ramifications on the western legal world. It led to the lively debate between two scholars, i.e, Lord Devlin and HLA Hart. The former believed that society was held together by a common morality and that sin was synonymous with crime; thus sin ought to be suppressed with the utility of criminal law. The latter believed that the hypothesis that, society was a seamless web that left no room for deviation, and, that criminal law was necessary for moral preservation, was absurd.

The practical application of this debate found expression in two landmark decisions i.e., Bowers v. Hardwick (1986) and Lawrence v. Texas (2003). In Bowers v. Hardwick the sodomy law of Georgia, USA was upheld because it was believed that homosexuality was an anathema to the country’s tradition. Thus Lord Devlin’s approach, of merging law and majoritarian morality, was followed. It was not until Lawrence v. Texas (2003) that this changed. In Lawrence v. Texas the Supreme Court struck down the sodomy law in Texas by holding that super-majoritarian moral belief was not a rational substantiation for criminalizing deviant conduct. A majoritarian morality was therefore prohibited from defining the contours of criminal law. Thus, eventually Hart’s line of thought emerged victorious.

Within our own domestic jurisdiction mention must be made of the Constitution of India and Section 377 of the Indian Penal Code (Code). The Constitution is the law of the land. The chairman of the Drafting Committee of the Constituent Assembly, Dr. B.R Ambedkar, ensured that the fundamental rights that were accorded to citizens, especially under Article 21 (right to life), 14 (right to equality) and 19 (right to freedom), were independent rights. While there was pressure from various avenues to protect the rights of the princes, the British mercantile community, provide preference to socio-economic rights and protect communitarian interests, the protection of the individual’s independent rights prevailed. These rights constitute the core values of the Constitution. This is relevant because it is this aspect of the Constitution that has provided for subsequent judicial decisions revolving around sexual orientation and identity.

S.377 of the Code is titled ‘Unnatural Offences’ and it considers carnal intercourse against the order of nature with any man, woman or animal to be a non-bailable and cognizable offence. This offence is punishable with imprisonment that extends to 7 years, or, for life.

In 2009, in the Naz Foundation v. Government of NCT of Delhi (Naz) decision, the Delhi High Court (DHC) decided to read down S.377 of the Code so that it would exclude the private consensual intimate relations between consenting adults. An ‘adult’ was defined as anyone who was 18 years and above. The rationale behind this was that S.377 of the Code denied an individual from attaining full personhood, which was a right that was implicit in the notion of right to life under Article 21 of the Constitution of India.

Unfortunately this jurisprudential progress was short-lived. In 2013, in the appeal against the DHC Naz decision, i.e., in Suresh Koushal v. Naz Foundation,(Koushal) the Supreme Court refused to read down S.377. It was held that S.377 of the Code did not suffer from any constitutional infirmity. Amongst the many observations and findings, it was held that (1) it was for the legislature to amend the law; (2) the inaction of Parliament, which was a representative of the people, qua deleting this provision, should act as a guide for the Court and; (3) Lesbians, gays, bisexuals or transgenders (LGBT) constitute only a ‘miniscule’ fraction of the Indian population and that less than 200 persons were prosecuted. Thus, a majoritarian and a populist approach was adopted by the Supreme Court. Lord Devlin’s approach of intermeshing popular societal morality with law appears to have been adopted.

Interestingly, in 2014, in the National Legal Services Authority of India v. Union of India (NALSA) decision, transgender people were recognized as a ‘third gender’ that were entitled to fundamental rights under the Constitution of India. The basis of this decision relied on the inference that (1) Article 21 guaranteed a right to self-determination; (2) Article 19 comprised of the right of the transgenders to express their self-identified gender themselves via dress, words, behavior and action and; (3) Article 14 guaranteed equality. Furthermore, Article 15, which guaranteed protection from discrimination on the basis of sex, was construed to include protection from discrimination based on gender identity.

Thus, while, the Supreme Court decision in Koushal had criminalized conduct that is central to the identity of the transgenders and the homosexuals; transgenders were subsequently recognized as individuals. This has created quite a conundrum because the violation of the freedom of private consensual sexual conduct is now a violation of something i.e., -sexuality and sexual orientation- which is central to individual autonomy and development. An effort to resolve this complication appears to have been made on August, 2017 in the decision of Puttaswamy and Anr v. Union of India and Ors i.e., the right to privacy decision.

On 24.08.2017, the Supreme Court of India, held privacy to be a fundamental right, a natural right and an inalienable right. However, it was held that it was not absolute and that it was subject to reasonable restrictions that may be imposed by the State to protect legitimate State interests or public interest. Privacy was held to include, at its core, the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.

The Court viewed the notion of privacy as the being what enables the individual to make certain intimate choices in an endeavor of exercising his or her autonomy. The right to privacy was therefore held to be an inherent part of Article 21, Article 14 and the fundamental freedoms under Article 19. Liberty under Article 21 was held to comprise of the right to self-determination and to live with dignity. Thus, the only way in which privacy may be violated would be as per procedure laid down by law i.e., for reasons that were fair and reasonable.

It was further held in paragraph 169 of the majority decision that:

“Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity”

The Court went further and critiqued the abovementioned Koushal decision of 2013. It was held that the rationale given by the Supreme Court i.e., that the LGBT community constituted a miniscule fraction of the country’s population and that less than 200 people have been prosecuted, was lacking in constitutional validity. It went on to state that the purpose of elevating a right to the status of a fundamental right was to insulate it from majoritarian pressure that was either popular or legislative. It was further held that the notion that the violation of the fundamental right of a few was permissible, was flawed and cannot be accepted. It was reiterated that the rights of the LGBT community are not ‘so called’ rights. They are real rights that emanate from the right to life and they constitute the essence of liberty and freedom. It was held that sexual orientation was crucial to identity and that it was an integral facet of privacy.

A carefully enunciated decision, and critique, such as this will have ramifications for the LGBT community. What needs to be kept in mind however is whether it will be law that influences society or the other way around. While coercive law is not the preferred mode for introducing change in society, it may be necessary for ensuring urgent social reform. An example of this may be the banning of the practice of Sati far before society was ready to do away it. Another example of this might be the successful implementation of the British Race Relations Act of 1965, which sought to change attitudes and ideas by influencing external behavior.

However, it is also found that if society is not ready to embrace a law then enforcement of the law becomes tedious due to complete lack of cooperation. An example is the profound failure of Prohibition (Prohibition was imposed from 1920-1933, in preventing production, importation, transportation, the sale and the ingestion of alcohol in United States).

Another thing that may be kept in mind is that many who purport to support a legal mandate, are actually expressing their own prejudices. This was observed by T.F Jones (2008) in his paper titled “(Ab)normality: Psychiatric Representations and treatment of homosexuality in 1960s South Africa”, wherein the categorisation of homosexuals as mentally ill was discussed. Jones noted that certain parties were perhaps actually exercising or expressing their own personal prejudices under the guise of respecting the mandate of the State on the issue of homosexuality.

It is interesting to note, however, that both sides, i.e, the conservative as well as the progressive, have utilized the law to legitimize lifestyle and moral culture qua privacy and sexuality,

The impact of the privacy decision will therefore be dependent on the interplay between popular societal acceptance and the legal decisions that may be taken in potential cases of the breach of the right to privacy in the instances of LGBT conduct. It is hoped that the clear and progressive critique of Koushal by the bench in Puttaswamy, will be acted upon, if not, at least, given due consideration when the Koushal matter may be reconsidered.