Siddharth Narain | Privacy, Sexuality, and the Law

One of the criticisms of the Delhi High Court’s decision in Naz Foundation in 2009 on the constitutionality of section 377 of the Indian Penal Code (which was overturned by the Supreme Court in Suresh Kumar Koushal in 2013, and has now been challenged in a curative petition) is the framing of the privacy argument in the case. Critics have pointed out that Naz, while decriminalizing consensual sexual acts between LGBT persons, qualified this by the use of the term “in private”. This, they argue, privileged those who could afford to have their own homes and spaces, while leaving vulnerable those who depended on public spaces such as parks, who were most exposed to the threat of the law.

In this presentation, I will examine the contours of the privacy argument in Naz, in juxtaposition with other claims around privacy that are being debated today. By reading these claims together, I aim to piece together a more nuanced understanding of privacy that emerges, which remains relevant to today, irrespective of the outcome in Suresh Kumar Koushal.