Gender Expression, Privacy, Data Protection and Retention
Navtej Singh Johar v. Union of India
Closed Contracts Expression
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In July 2009, the Division Bench of the Delhi High Court declared that Section 377 of the Indian Penal Code that criminalizes consensual sexual acts of adults in private was in violation of Articles 21, 14 and 15 of India’s Constitution, notwithstanding non-consensual sex between minors. Among other grounds, the court struck down the law for being capable of interfering with the right to express one’s sexuality.
Subsequently, a number of appeals were filed before the Supreme Court of India against the High Court’s decision. The Supreme Court overruled the decision of the High Court. It reasoned that the law does not criminalize a particular group of people, identify or orientation; it only punishes “those who indulge in carnal intercourse against the order of nature.” It further held that mere fact that the law may have been misused by authorities does not provide sufficient ground for declaring the law as unconstitutional.
A public interest litigation was filed before the Delhi High Court by the respondents in the present appeal for decriminalization of homosexual acts by striking down Section 377 of the Indian Penal Code. The law reads that “[w]hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Among NGOs challenging the law was NAZ Foundation, which focuses on intervention and prevention of HIV/AIDS, particularly among LGBTIs. The Foundation contended that the law had severely impaired its efforts to prevent HIV because in practice the law legitimizes “discrimination against sexual minorities.” [para. 3] It further argued that Section 377 impermissibly infringes upon the right to liberty protected under Article 21 of the Constitution by imposing criminal punishments on private, consensual sexual relations.
In response, the government contended that the law is not in violation of the Constitution as it is enforced “only on complaint of a victim and there are no instances of arbitrary use or application” of the law. [para. 7] The Delhi High Court ruled that the law violates the fundamental rights guaranteed under the Constitution, particularly the right to privacy and the right to live with dignity. According to the court, “Section 377 denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.” [para. 9]
Subsequently, a number of individuals and institutions, including the Delhi Commission for Protection of Child Rights and the Union of India appealed the Delhi High Court’s decision to the Supreme Court of India.
Justice Singhvi delivered the opinion of the Supreme Court of India.
The appellants, arguing in favor of overruling the High Court’s decision, contended that there were insufficient material evidence to conclude that Section 377 had been used for arbitrary prosecution of LGBTIs. According to them, the right to privacy “does not include the right to commit any offence as defined under Section 377.” [para. 16.6] They further argued that all fundamental rights, including the right to freedom of expression operate within reasonable restrictions and that “high percentage of AIDS amongst homosexuals shows that the act in dispute covered under Section 377 is a social evil and, therefore, the restriction on it is reasonable.” [para. 16.16] The appellant urged the Court that the question of what the law punishes is moral or immoral should be left for the parliament to decide.
The respondents, on the other hand, contended that the law is impermissibly vague and delegates discretionary police power that has resulted in the harassment and abuse of sexual minorities. They specifically noted that the law does not contain any specific guidance as to what cases the police may investigate; it is also “silent on whether the offence can be committed taking within its ambit, the most private of places, the home.” [para. 17.12] They further argued that the law infringes on the constitutional right to privacy by intruding into the zone of intimate relations, particularly between sexual minorities. As to the defense of freedom of expression, the respondents emphasized that the “expression of homosexual orientation which is an innate and immutable characteristic of homosexual persons is criminalised by Section 377.” [para. 19.9]
At the outset of its analysis of the issues presented in this case, the Supreme Court first noted that it enjoys judicial authority to “declare as void any pre-Constitutional law to the extent of its inconsistency with the Constitution and any law enacted post the enactment of the Constitution to the extent that it takes away or abridges the rights conferred by Part III of the Constitution.” [para. 26] It also noted that as a matter of separation of powers and the value of democracy, a challenged legislative enactment is presumed constitutional and the burden is the challenger to show that there is “a clear transgression of the constitutional principles.” [para. 27]
The Court then noted that the respondents failed to present particular incidents involving harassment and abuse by the government against sexual minorities. It also found that Section 377 on its face does not create the risk of arbitrary enforcement against certain groups, reasoning that the law only criminalizes sexual acts “against the order of nature,” and not the acts in the ordinary course. It further noted that the High Court overlooked that a very small fraction of the country’s LGBTIs have been charged and prosecuted under Section 377 and “this cannot be made sound basis” for declaring the law as unconstitutional. [para. 43]
As to whether the law infringes the fundamental rights guaranteed under the Constitution, including the right to privacy, dignity, and freedom of expression, the Court held that the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.” [para. 51] Without any further analysis, the Court concluded that Section 377 “does not suffer from the vice of unconstitutionality.” [para. 54] Accordingly, it overruled the Delhi High Court’s judgment.
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“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
This is not an official document of the Supreme Court. This has been put up by the Lawyers’ Collective, a not-for-profit organization that represented one of the parties.
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