The Naz Foundation Case: Delhi High Court Ruling Expands India’s Constitutional Privacy Rights
Privacy Laws & Business International Newsletter, Issue 100, pp. 24-25, August 2009
5 Pages Posted: 24 Mar 2012
Date Written: August 1, 2009
The protection of privacy under the Indian Constitution, developed through case law by the Supreme Court, has been advanced further by the Delhi High Court’s decision to strike down provisions criminalising homosexual sexual conduct on grounds of invasion of privacy (Naz Foundation v Government of NCT of Delhi WP(C) No.7455/2001 (2 July 2009) (‘Naz Foundation Case’). The potential for further expansion of constitutional protection of privacy into the area of data protection is increased.
The Constitution of India provides that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’ (Article 21). The Supreme Court has interpreted this provision to include the protection of privacy since Kharak Singh v. The State of U. P.  INSC 377; 1963 AIR 1295 1964 SCR (1) 332. Privacy was also held to be part of what was protected by Article 19(1)(a) (right to freedom of speech and expression) and Article 19(1)(d) (right of freedom of movement).
Article 14’s guarantee of ‘equality before the law or the equal protection of the laws’ is also significant in its interaction with Article 21. The Supreme Court has held that a citizen has a right to receive information, derived from the concept of freedom of speech and expression comprised in Article 19(1)(a) (State of U.P v Raj Narayan (1975) AIR 1975 SC 865; P.V.Narsimha Rao v State (1998) AIR 1998 SC 2120). The protection of privacy by the Indian courts has developed primarily from this constitutional basis, rather than by Indian courts developing a tort of invasion of privacy (as in the USA or New Zealand), or by extension of the law of breach of confidence (as in the UK).
The most significant development outside search and surveillance issues is the new decision of the High Court of Delhi in the Naz Foundation Case (2 July 2009). The case was public interest litigation brought by the NGO, Naz Foundation to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), which criminally penalizes what is described by the section heading as ‘unnatural offences’ (‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal …’), therefore in the Court’s interpretation effectively criminalising sex other than heterosexual penile-vaginal. The Delhi High Court initially dismissed the application as an ‘academic challenge’, but was required by the Supreme Court in 2004 to re-examine the matter.
This article examines the reasons why the Court held that s377 violated Articles 21, 14 and 15 of the Constitution, insofar as it criminalises consensual sexual acts of adults in private.
The Naz Foundation Case therefore takes the protection of privacy under the Indian Constitution beyond issues of search and surveillance. The broadest statement of the Delhi High Court’s approach is where, following its review of Indian case law to date on protection of privacy, it states ‘The right to privacy thus has been held to protect a “private space in which man may become and remain himself”. The ability to do so is exercised in accordance with individual autonomy’. If such an expansive approach was adopted by the Indian Supreme Court, it is capable of developing in the direction of something like the ‘right to informational self determination’ of the German Constitutional Court.
Keywords: India, constitution, privacy, homosexuality, discrimination
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