The Judgement on Right to Privacy: Harvesting Hope for the Rainbow Flag in India? By Swarnima, Kosturi Ghosh and Akash Mishra, Trilegal

In the 21st century, when we are looking at human genome editing and artificially intelligent babies, homosexuality is still considered to be unnatural and met with societal disapproval in India. Homosexual acts are criminalized under S. 377 of the Indian Penal Code, 1860 (the criminal code in India), providing a maximum imprisonment of 10 years. This regressive provision was introduced over 150 years ago during the British rule in India. Even though, in the last 150 years, less than 200 cases have been registered under S. 377, its continued presence remains a symbol and a tool for the homosexual community’s subjugation and mistreatment. The position was buttressed by the judiciary, confirming its constitutional validity, in a 2013 Supreme Court decision. This provision has created a legitimate breeding ground for masses to bully, harass and threaten homosexuals. In the corporate sector, some companies have tried to support homosexual employees by making their workplaces inclusive and initiating LGBTI networks. However, a majority of them remain wary of any possible backlash and have followed a ‘Don’t ask, Don’t tell’ policy.

Swarnima, Counsel, Trilegal

The recent nine judge bench Supreme Court decision in Justice K.S Puttaswamy (Retd.) and Anr. v Union of India and Ors. (“Privacy Decision“) is momentous as it not only holds that privacy is a fundamental right enshrined in the constitution (Article 21 – Right to life and liberty), but includes sexual orientation as an essential attribute of the right to privacy. The Supreme Court even discussed the 2013 decision which upheld S. 377’s validity and criticized its rationale as being unconstitutional. With a curative petition on S.377’s constitutionality pending before the Supreme Court, this article will discuss the steps taken by companies to create an inclusive workplace, the challenges faced due to S.377 and the impact of the Privacy Decision on the pending curative petition.

Challenges and Steps in Creating Inclusive Workplaces

Today, workplace diversity and inclusion is considered an important business practice from a corporate standpoint. While employees from different ethnicities, races, etc. have benefited from inclusion measures by corporate entities, homosexual employees have continued to find it difficult to rise above the prevalent dogmatic approach to sexuality in India. With the general conservative stance in the country and through the continued existence of S. 377, companies have been circumspect in propagating support for the homosexual community. An employee of a large multinational IT company based in Gurgaon, said: “My company has a global anti-discriminatory mandate across all offices. They provide same-sex partners the same benefits as the married couples in the US. Unfortunately, they don’t have an India chapter of their ERG (Employee Resource Group)”.

Background and Current Position of Law

In a far cry from the Indian context, over 20 countries across the globe, from Argentina to Iceland, have legalized same-sex marriage. However, India is amongst 72 regressive nations that still criminalize homosexual conduct. While inroads have been made by the judiciary (through the National Legal Services Authority v Union of India judgement) to protect the rights of the transgender community in India by granting them legal recognition as the ‘third gender’, no steps have been taken to protect the rights of the homosexual community. Recently, India voted against a resolution at the United Nations Human Rights Council to denounce the death penalty for conduct such as apostasy, adultery and consensual same-sex relations. This step comes across as disconcerting and unclear as India, through its judicial decisions, has limited the death penalty to the ‘rarest of rare cases’, which cannot be applicable for a S. 377 violation. However, the country’s image in respect to their approach towards homosexuality is sure to be dented.

Kosturi Ghosh, Partner, Trilegal

One must remember that, after more than a century of the draconian law’s presence, it was in July 2009 that the Delhi High Court (in the case of Naz Foundation v. Govt. of NCT of Delhi) held S. 377 to be unconstitutional, insofar as it criminalises consensual sexual acts of adults in private. However, this relief was short-lived as, in an appeal to the judgement in Suresh Kumar Koushal and Another v NAZ Foundation and Others (2013 Decision), the Supreme Court declared that S. 377 suffers from no constitutional infirmity and is valid. Some of the arguments placed by the government and others while arguing against the de-criminalization of same-sex sexual activity were highly regressive and of untenable nature. It was argued that homosexuality is immoral, a major cause of HIV/AIDS and that Indian society abhorred such practices.

Highlights of the Privacy Judgement

The main question before the bench in the Privacy Decision was whether the right to privacy can be considered a fundamental right. However, during this discussion, the judges also made certain observations about S. 377 and the homosexual community.

Akash Mishra, Associate, Trilegal

Firstly, dealing with the matter of sexual orientation, the court held that “the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.” It further stated that the rights of the LGBTI community “inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity.” In turn, the court stressed that equal protection demands protection of the identity of every individual without discrimination. The court stressed on the requirement to provide “unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity” and prevent any hostile discrimination of the LGBTI minority. The judges were of the view that this is important as no protection can be afforded to an individual’s orientation if his sexual choices are intruded upon. Thus, it appears that the judges recognised the challenges faced by the homosexual community and their right to the way of life, which comes naturally as part of their sexual orientation.

Secondly, the judges made scathing remarks on the callous treatment of the homosexual community and reference to them as having “so-called” rights. It stated that constitutional rights cannot be placed upon individuals based on a majoritarian view or on a test of popular acceptance. Thus, it is seen that the court rejected the basis for re-criminalizing same-sex activity, only falling short of holding such criminalization as unconstitutional.

Conclusion

These remarks of the Supreme Court on the 2013 Decision are non-binding obiter dicta but will still hold enormous import in the forthcoming days when the curative petition will be heard. With sexual orientation and unhindered fulfilment of it being a part of the fundamental right to privacy, the legal intrusion into the currently deemed ‘unnatural’ sexual actions of the homosexual community appears difficult to justify in the curative petition.

A rejection of rights of an individual on the sole basis of their minority status in a community is highly dangerous and flawed. From a workplace perspective, it is imperative for an organization to ensure that the environment is devoid of discrimination. This cannot be achieved unless every community, irrespective of its minority or majority status, is seen in equal light. This works positively for both employees, in terms of their increased job satisfaction and comfort as well as for the employers as it leads to enhanced productivity and employee retention.

It is important that a country’s law is egalitarian in nature and dispels retrograde views, for the people to slowly replicate it in their social surroundings. Therefore, the decision on the pending curative petition is awaited with immense anticipation and hope for a progressive take on the homosexual community’s rights.

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Kosturi Ghosh is a Partner and the Deputy Head of the corporate practice group of Trilegal. Her primary areas of practice are general corporate advisory, M&A, Private Equity and TMT. She has over 15 years of experience in her practice areas and has been actively involved in several high profile in-bound and outbound acquisitions and joint ventures. Kosturi specializes in advising multinational clients on mergers and acquisitions, structuring investments and exit options, conducting due diligence and drafting transaction documentation. She regularly advises on commercial, regulatory and strategic matters as well as processes and procedures to ensure compliance in India. Kosturi has advised multinational clients on TMT matters including software development and licensing, data protection, and technology transfer. Kosturi has completed Executive Education Programme 2016 designed for Leaders of Professional Service Firms- IIM Ahmedabad. She is an Alumnus of the University of Pune, ILS Law College and is a member of the Bar Council of Karnataka, India.

Swarnima is a Counsel in the Bangalore office of Trilegal and is part of the employment practice. She has worked with both domestic and multinational clients on a wide range of employment matters including structuring senior management contracts and remuneration policies, advising on effective management of resignations and terminations including strategy for senior management exits. She has also assisted clients through disciplinary inquiries, reorganisation and closure of their businesses in India. Swarnima has also done extensive work on issues relating to sexual harassment. She has advised and handheld several multinational clients in not only managing such complaints but also assisted in reviewing and creating sexual harassment policies and comprehensive guidelines for committee members. Swarnima represents Trilegal at NASSCOM (National Association of Software and Services Companies), one of India’s largest IT associations, and regularly conducts trainings on the new law for industry and employer networks across India. She was also invited by IACC (Indo- American Chamber of Commerce) and BPAC (Bangalore Political Action Committee) to speak on the challenges with implementing the new sexual harassment law and best practices that companies could adopt. Swarnima is an alumnus of Gujarat National Law University. She is a member of the Bar Council of Karnataka.

Akash Mishra is an associate in the Bangalore office of Trilegal, working in the labour and employment practice group. At Trilegal, he has been involved in drafting and reviewing employment contracts and policies. He has also assisted in advising clients on various employment law issues relating to employee benefits, leave provisions, termination provisions among others. He has also advised companies in relation to conducting disciplinary proceedings, terminations due to continued ill-health and other issues. He is a graduate from The West Bengal National University of Juridical Sciences, Kolkata.

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