Symposium - Criminalisation and Privacy: Examining the State’s Right to Interfere in the “Private Sphere” through imposition or lifting of Criminal Sanction

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Shraddha Chaudhary

University of Cambridge

The Supreme Court of India (Supreme Court), in Navtej Johar v. Union of India, (Navtej Johar) decriminalized “carnal intercourse against the order of nature”, insofar as private acts of consenting adults were concerned. In declaring this aspect of S. 377, Indian Penal Code (IPC) unconstitutional, the Supreme Court corrected the grave injustice perpetrated by the division bench in Suresh Kumar Koushal v. Naz Foundation in 2013. In broad terms, the constitutional bench in Navtej Johar found that S. 377 fell foul of Article 14 (by virtue of being arbitrary), Article 21 (by violating the privacy, autonomy and dignity of adults engaging in consensual acts of “carnal intercourse against the order of nature”), and Article 19 (by infringing upon the most basic freedom of expression of such individuals- the right to love and define one’s own sexuality and sexual preferences). In this piece I shall focus on the role of the constitutional concepts of privacy and dignity, as applied by the Court in Navtej Johar, in criminalization or decriminalization of acts.

The Court’s Finding on S. 377 vis-à-vis the Right to Privacy and Dignity of the Individual

The Supreme Court located sexual orientation and private acts of intimacy as deeply personal choices of individuals, intrinsic to each person’s autonomy and self-determination. This right to privacy, in the context of S. 377, IPC includes not only the negative freedom to “be left alone”, but also the positive right to define and express one’s sexuality (Paras 156-157, Misra J.’s judgement).

In the recent confirmation hearing of President Donald Trump’s nominee to the U.S. Supreme Court, Brett Kavanaugh, Senator Kamala Harris asked, “Can you think of any laws that give government the power to make decisions about the male body?”. After some back and forth came the nominee’s telling response, “I'm not… I'm not… I'm not thinking of any right now, Senator.” Recognizing and affirming the right to privacy for citizens who do not identify as cisgendered, heterosexual, heteronormative males assumes significance in light of the law’s history and continued tendency of attempting to control the bodily autonomy and choices of this category of persons. Whether by restricting access to abortion, attempting to control who an adult woman can marry, defining gender as a binary (even after the decision of the Supreme Court in NALSA v. Union of India, most personal laws operate on a gender binary. For example, see S.4(c), Special Marriage Act, 1954), or criminalising the consensual sexual acts of adults (S. 377, IPC), the law has been a constant perpetrator of violence against those who do not conform to society’s rigid, majoritarian standards of gender and sexuality.

At the same time, it is important to define the right in order to prevent privacy from shielding the violence perpetrated against the aforementioned category. As has been argued elsewhere in the context of the United States of America, concepts of privacy have traditionally permitted, encouraged, and reinforced violence against women. This was cursorily recognised, though not expounded on, by Justice Chandrachud in Justice K.S. Puttuswamy v. Union of India & Ors. (Puttuswamy). He noted, “The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.” The question is, how?

The Supreme Court in Navtej Johar defined ‘dignity’ primarily in terms of freedom from fear in one’s intimacies (Para 4, Chandrachud J.’s judgement), freedom from state persecution merely for expressing one’s identity, and freedom from the culture of silence and stigmatisation (Para 52, Chandrachud J’s judgement). A life of dignity has otherwise been defined as one where the individual has the full and complete opportunity to achieve the maximum development of her personality (Maneka Gandhi v. Union of India), the right to the basic necessities of life, and the right to carry on such functions and activities as constitute the bare minimum expression of the human self (Francis Coralie Mullin v. Union Territory of Delhi). In Vishaka v. State of Rajasthan, freedom from sexual violence, particularly sexual harassment at the workplace, was recognised as being intrinsic to the right of women to live with human dignity. The Supreme Court, in Social Action Forum for Manav Adhikar v. Union of India, by modifying its earlier directions in Rajesh Sharma & Ors. v. State of U.P., has also reinforced the necessity of protective legislation against domestic violence, thereby refusing to relegate the issue to the “private sphere”.

Balancing this view of dignity, particularly the dignity of vulnerable groups such as women (and men who are not cisgendered, heterosexual or heteronormative) with the right to privacy would be the most practical starting point when considering the question of criminalisation. It would not, however, be enough.

 Theories of Criminalisation and the lens of Constitutional Morality

A small part of Justice Chandrachud’s judgement (Paras 129-137) discusses certain theories of criminalisation as they apply to S. 377, IPC. While the discussion is, by no means, comprehensive (omitting Feinberg’s offence principle, and Dalton’s disgust theory, among others), it does provide a beneficial overview of the theories of Bentham (Para 129-130), Mill (Para 131-132), Devlin (Para 133) and Hart (Para 134). According to Bentham’s utilitarian theory, criminalisation of conduct is justified only when it leads to net benefit in society. That is, if the injury caused by the conduct criminalised is so great as to overshadow the inherent harm of punishment. This harm, in turn, can be at three levels: direct harm to another person, harm to the stability and security of society, and danger to the society. J.S. Mill’s Harm Principle advocates complete non-interference of the state in the private actions of individuals, unless their conduct affects others without their free and undeceived consent. Lord Devlin, on the other hand, believed that social morality was the core of law, and that the law could legitimately be used to further the ends of social morality. As a corollary, he proposed that the enforcement of social morality through the law was necessary for society to continue functioning. H.L.A. Hart rejected Lord Devlin’s contention that society would not survive without a common morality enforced by law. While accepting that there may be several points of overlap between law and morality, Hart was adamant that insofar as private acts were concerned, neither law nor society could be allowed any control over them.

From this discussion, Justice Chandrachud draws the conclusion that criminalisation of acts would be justified when they cause injury (or, in Mill’s terms, harm) to a third person or to society, which is clearly not the case with the conduct criminalised under S. 377 as regards consenting adults.

It is important to note that the assessment of injury or harm may, in turn, depend on how, and from whose point of view, these terms are defined. If majoritarian values or social morality defined injury or harm, consensual, private acts between same sex partners would be seen as challenging the heteronormative structures that maintain and perpetuate the patriarchy. Therefore, they would be considered as harmful or injurious to society at large. Similarly, one of the main reasons marital rape has not been criminalised in India is that it would “destroy the institution of marriage”, an institution seen to be at the heart of society as we know it.

A meaningful, beneficent definition of ‘harm’ or ‘injury’ for the purposes of criminalisation can only be arrived at from the lens of what the judges in Navtej Johar have referred to as “constitutional morality”. Constitutional morality refers to the internal morality of the Constitution of India (NALSA v. Union of India), and to a commitment to the basic tenets of the Constitution, which seek to address the social inequities arising from India’s colonial past, as also from entrenched norms and mores which hinder social transformation (such as untouchability). Criminalisation or decriminalisation anchored in constitutional morality would, thus, consider the dignity, privacy and autonomy of the individual, the value of heterogeneity, the relevance of divergent and dissenting opinions and ways of life, and the threat of overwhelming majoritarianism within the larger constitutional vision of social transformation (Paras 142-144 of Chandrachud J.’s judgement, and paras 250 and 253(iv) of Misra J.’s judgement).

The unique balance of safeguarding privacy and autonomy on the one hand, and defending the dignity of persons, particularly vulnerable groups, on the other, using the metric of injury or harm to third persons/society, as defined from the lens of constitutional morality represents a nuanced theory of (de)criminalization. The jurisprudence emerging from Navtej Johar signals interesting times to come for the understanding and application of criminal law in India. In the near future, these principles are likely to influence the Delhi High Court, currently deciding the question of criminalisation of marital rape of adult women (after the marital rape of minors was recognised as a criminal offence by the Supreme Court in Independent Thought v. Union of India). In the long run, the decision may open the gates to prosecutions for rape in non-heteronormative circumstances (male on male, female on female, involving male/female and transgendered persons in various permutations, and perhaps even female on male) under the modified S. 377, IPC.

Shraddha Chaudhary is an LL.M. Candidate at University of Cambridge, has worked as a legal researcher at the Centre for Child and the Law, National Law School of India University, Bangalore.

Suggested Citation: S Chaudhary, ‘Criminalisation and Privacy: Examining the State’s Right to Interfere in the “Private Sphere” through imposition or lifting of Criminal Sanction’ IACL-AIDC Blog, Symposium ‘Section 377 Judgement Expanding LGBT Rights in India’ (