Electronic Surveillance and Right to Privacy: Stuck between a Rock and a Hard Place.

Big brother surveillance techniques have sparked much debate on the conflict that exists between the right to privacy and the duty to protect security of state. The conflicting judgments of two US courts on the constitutionality of NSA’s bulk surveillance programme is interesting to note. This post highlights the conflict and also gives a brief overview of the Big brother surveillance techniques that exist in India.

On June 6, 2013 the plaintiffs brought the first of two related lawsuits challenging the constitutionality and statutory authorization of certain intelligence gathering practices relating to the wholesale collection of phone record metadata and internet activity of all US Citizens[1].

The Court found that it does not have the authority to evaluate the constitutional challenge on one of the lawsuits, one claiming that government has exceeded its statutory authority under the Foreign Intelligence Surveillance Act (“FISA”).  However the Court did find sufficient basis for jurisdiction and authority to evaluate the NSA’s conduct on constitutional challenges, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court (“FISC”).

The Court granted in part, the Motion for Preliminary injunction. In spite of granting this injunction, the judge himself stayed his order in view of the “significant national security interests at stake in this case and novelty of the constitutional issues” pending appeal.

In a significant statement the Court said

“Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment.”

The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.

The reference to the year is to distinguish a US Supreme Court Case called Smith v. Maryland[2] where the question before the Court was whether local police could collect phone records after the pen register was installed for the limited purpose of investigating a case of harassing phone calls. The US Supreme Court held that such surveillance is in compliance with the fourth amendment. The NSA relies heavily on this precedent to justify its bulk surveillance programme.

The judge in the instant case stated that the extension of the precedent in Smith would be “stuff of science fiction”.

The judge also remarked

“I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and high- tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on "that degree of privacy" that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware "the abridgement of freedom of the people by gradual and silent encroachments by those in power," would be aghast."

In a span of about 10 days a similar question came up before American Civil Liberties Union Et. Al v.James Clapper et. al[3]  before the United States District Court Southern District of New York. In a similar set of facts, the Plaintiffs challenged the legality of NSA’s telephony metadata collection program. The Court denied the claims and allowed the Government’s motion to dismiss. It ruled that the state interest was reasonable and not violative of the fourth amendment right and security of state supersedes the right to privacy.

Big Brother Surveillance in India:

In the recent past, India has also introduced several bulk surveillance programmes which seek to closely monitor communications and movements of citizens. Such programmes are giving wings to various governmental departments to rely on databases which contain private information such as, tax details, PAN numbers, date of birth etc. the following paragraphs will throw some light on these technologies:

1. CMS: The Central Monitoring System is an initiative by the Ministry of Telecommunications which will empower governmental departments such as intelligence agencies and tax authorities to intercept telephone messages, calls, emails and VoIP. It is stated that this project is in line with Section 5 of the Indian Telegraph Act, 1885 and is secure as it has a strong inbuilt mechanism to protect the privacy of information stored. We believe that this clearly impinges upon the right to privacy. The lack of public documentation which highlights the effects and manner of implementation of the project raises concerns. Secondly, the concept of necessity has been done away with as information will be monitored even when there is no threat to security of state. Thirdly, by including tax authorities in the list of authorised departments the Government has gone beyond the ruling of the Supreme Court which stated that economic emergency is not national emergency.
2. NATGRID: is a project introduced after the gruesome 26/11 attacks and envisions networking 21 databases for purposes of crime investigation including tax, health, and travel information. The information will be accessible to 11 security agencies and law enforcement agencies. Supporters of the project claim that the project is merely a technical interface for intelligence agencies and is a security initiative, thereby forming a reasonable restriction to privacy. One of the biggest hurdles to is the protection of information and lack of adequate safety equipment. Establishment of such grids will pose a huge risk of data loss due to hacking and contamination. Further NATGRID will not help in preventing attacks like 26/11 because the nodal defense departments are not privy to the information. The Government has also failed to define the legal status of the project, which poses huge concerns for privacy.
3. UAV: Unmanned Ariel Vehicles are being used by the police to monitor large crowds and traffic. The Mumbai police recently used UAV ‘Netra’ to monitor large crowds during the Raj Thackrey rally. The use of these vehicles for concerns other than combating terrorism is an infringement of privacy as restoration of public order does not qualify as public emergency. Further there is no clarity on how the information is collected, stored and accessed.
4. CCTV: CCTV cameras have been installed by many metro cities in public places such as railway stations and metro stations. These have been installed under simple executive orders and no clear safeguards exist with regard to how this information is stored, processed, accessed and monitored. The recent Privacy Protection Bill, 2011 is the only parliamentary step which seeks to regulate information and footage collected through such cameras. However the Bill is still at its infancy and it will take a lot of time before this data protection legislation becomes the law of the land.

Big Brother Surveillance: Cross Border Remedy:

As India’s privacy law is modeled on the American jurisprudence, such conflicting decisions are bound to affect the law on bulk surveillance and privacy in the country. It is interesting to note that the NSA’s bulk surveillance programme also keeps tabs on communications that happen within India. This was challenged before the Hon’ble Supreme Court of India in S.N. Singh Patron Baanaana.com v Union of India. The Supreme Court dismissed a petition on the grounds that Article 32 can be invoked only against the state, hence other civil remedies must be resorted to.

Such lack of remedies poses a huge concern for the citizens of India, as there is no redressal for cross border surveillance which clearly impinges upon the privacy of an individual.

Conclusion:

It is our opinion that there is a need to strike a balance between the states duty to protect the right to privacy and ensure security of state. Article 21, while encompassing the right to be left alone also provides that the same can be abridged in accordance to reasonable procedure established by law. Taking a cue from this exception, several Supreme Court cases have held privacy to be subservient to security of state. The need for surveillance is justified as there is a duty on states to protect public order and state security under Article 38 of the Constitution of India. But this Directive Principle of State Policy must be read with Part III as both form an essential part of fundamental governance of state. Hence the big brother surveillance techniques are in direct conflict with the right to privacy. These programmes must get Parliamentary approval and can be regarded as reasonable exceptions only if strong steps are taken towards protecting the data collected.

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[1] Klayman et al v. Obama Civil Action No. 13-0851 (RJL) Filed December 16, 2013

[2] 442 U.S. 735 (1979

[3]ACLU v Clapper 13 Civ. 3994 (WHP)

Better Late Than Never: Rights for Street Vendors

On February 19, 2014 the Rajya Sabha passed the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 and it received the President’s assent earlier this month. This Act is a welcome step towards protecting the right to life and livelihood of the poor. This post seeks to provide an insight into this legislative attempt. The Minister of Housing and Urban Poverty Alleviation, Dr.Girija Vyas while introducing the Bill in the Lok Sabha stated that street vending is a means of self-employment for the poor and also provides affordable and convenient services to a majority of the urban population. She further emphasized that these vendors must be able to pursue their livelihoods in a congenial and harassment free atmosphere. This Bill was passed by Lok Sabha on the 24th August, 2013 and transmitted to Rajya Sabha for its concurrence. The Rajya Sabha passed the Bill with amendments at its sitting held on the 19th February, 2014. This legislative action reminds us of the decision passed by the Supreme Court in the case of Olga Tellis v Union of India[1] where the Court held that eviction of slum dwellers, over 50 percent of whom were street vendors, without alternative housing or arrangements would violate their right to life and livelihood under Article 21 of the Constitution of India. In its decision the Court did pay heed to the fact that the eviction would possibly interfere with their rights under Article 19(1)(g) as well. The decision was rendered in the context of eviction of slum dwellers who were evicted by the Bombay Municipal Corporation without any alternate arrangement. The decision of the Supreme Court in Sodan Singh v. NDMC[2] is also of relevance. The Court stated that “If properly regulated according to the exigency of the circumstances, the small traders on the side walks can  considerably add to the comfort and convenience of the general  public, by making available ordinary articles of everyday use for a comparatively lesser price. An ordinary person, not very affluent, while hurrying towards his home after a day’s work can pick up these articles without going out of his way to find a regular market. The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and no other use.” These decisions have important implications not only the provisions of the Street Vendors Act, 2014 but also on the existing jurisprudence on the subject. .This Act garners the spirit of these famous cases and clearly provides for the protection of livelihood rights, social security of street vendors and regulation of urban street vending in the country. The Act defines a street vendor to include a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, side walk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific. Salient Features of the Act: Town Vending Committee; The Act envisions the formulation of a scheme, under which a ‘Town vending Committee’ shall be established. This Committee will be responsible for conducting surveys such that ‘vending zones’ can be clearly established. This survey is to be conducted every 5 years after the first survey is completed. All existing street vendors, identified in the survey, will be accommodated in the vending zones subject to a norm conforming to 2.5% of the population of the ward or zone or town or city. Where the number of street vendors identified are more than the holding capacity of the vending zone, the Committee is required to carry out a draw of lots for issuing the certificate of vending for that vending zone and the remaining persons will be accommodated in any adjoining vending zone to avoid relocation. Further the committee is responsible for issuing vending certificated to vendors. The Town Vending Committee’s composition is one commendable feature of this Act. The Committee is to have 40 per cent representation from the Street Vendors on the basis of an election as per prescribed rules.  Another 10 percent will be the NGOs working in the field. The rest of the members are to be nominated by the Appropriate Government[3]. The Committee will have the Municipal Commissioner or Chief Executive Officer as the Chairperson. Vending Certificates:  The Act seeks to provide all vendors with a certificate upon payment of a nominal fee. The certificate will clearly highlight the vending zone, time allocated for vending, conditions and restrictions for vending. This certificate is issued for a specified period of time and can be renewed upon expiry. The certificate is issued under three main categories (a) a stationary vendor; (b) a mobile vendor; or (c) any other category as may be specified in the scheme. Rights of street vendors: Vendors now have the right to carry on business subject to the terms and conditions of the vending certificate. In case of eviction street vendors can demand a new site to carry on the business. Street vendors can now exercise the statutory right to object to relocation or eviction until the survey is in progress. In case a street vendor, to whom a certificate of vending is issued, dies or suffers from any permanent disability or is ill, one of his family member i.e. spouse or dependent child can vend in his place, till the validity of the certificate of vending. Duties of street vendors: The Act also enlists a few duties of a street vendor. These include general duties to maintain cleanliness and public hygiene in the vending zones, adherence to conditions of certificate maintenance of public property in the vending zones. Street Vendors are also obligated to pay periodic maintenance charges for facilities provided in the vending zones in addition to the prescribed vending fee. Street vendors must also remove goods and wares at the end of their time sharing period. Relocation: The Act provides a clear procedure for relocation of vendors in case they are inhabiting an area which has been declared as a non – vending zone. The vendors are entitled to 30 days of notice before relocation. Additionally the authorities have been empowered to seize the goods in such case. In case they don’t relocate, they will be liable to pay for every day of default. Redressal of Grievances:  Under the provisions of the Act, the Appropriate Government may constitute one or more committees consisting of a Chairperson who has been a civil judge or a judicial magistrate and two other professionals. Every street vendor who has a grievance or dispute may make an application in writing to the committee. The Committee is to then verify, conduct enquiry and take steps for redress the grievance. Decisions of the committee may appeal to the local authority.[4] Plan: The Local authority is required to make out a plan once in every 5 years, on the recommendation of Town Vending Committee, to promote a supportive environment and adequate space for urban street vendors to carry out their vocation. It specifically provides that declaration of no-vending zone shall be carried subject to the specified principles namely; any existing natural market, or an existing market as identified under the survey shall not be declared as a no-vending zone; declaration of no-vending zone shall be done in a manner which displaces the minimum percentage of street vendors; no zone will be declared as a no-vending zone till such time as the survey has not been carried out and the plan for street vending has not been formulated. There is an important provision which mandates that the Plans of the Committee ensure that the provision of space or area for street vending is reasonable and consistent with existing natural markets. Thus the Bill provides for enough safeguards to protect street vendors interests. Penal Provisions: If any street vendor indulges in vending activities without a certificate of vending; contravenes the terms of certificate of vending; or contravenes any other terms and conditions specified under the Act or Rules, he shall be liable to a penalty for each such offence which may extend up to rupees two thousand as may be determined by the local authority. Other welfare provisions of the Act provide for the appropriate Government to undertake promotional measures of making available credit, insurance and other welfare schemes of social security for the street vendors. The legislation should be seen as a good first step towards the protection of street vendors, however the jury is still out on what the practical consequences of the application of the Act might be. On the one hand, the rights of the street vendors has been recognised in a legislation while on the other hand engaging in street vending without a certificate is now illegal and entails penal consequences. This power to issue certificates can be linked to the decision of the Supreme Court in the case of Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai[5] where the Court made it clear that hawkers have a right under Article 19(1)(g) to carry on their trade and can be restricted for the purpose of regulation under Article 19(6) of the Constitution. Hence any action challenging the constitutionality of the same might not succeed. To a significant extent the effect of this Act is dependent on the rules and schemes to be framed and actions taken by the “Appropriate Government” and the various committees established under the Act. Hence, any judgement on the merit of this legislation would in our opinion, be premature.

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[1] 1986 AIR 180 1985 SCR Supl. (2) 51[2] (1989) 4 SCC 155
[3] Appropriate Government means - in respect of matters relating to,— (i) a Union territory without Legislature, the Central Government; (ii) the Union territories with Legislature, the Government of the National Capital Territory of Delhi or, as the case may be, the Government of Union territory of Puducherry; (iii) a State, the State Government;
[4]“Local Authority” means - Municipal Corporation or a Municipal Council or a Nagar Panchayat, by whatever name called, or the Cantonment Board, or as the case may be, a civil area committee appointed under section 47 of the Cantonment Act, 2006 or such other body entitled to function as a local authority in any city or town to provide civic services and regulate street vending and includes the “planning authority” which regulates the land use in that city or town.

[5] AIR 2004 SC 416

The Curious Case of Bitcoins - Part I

Introduction

Bitcoin, a creation of a computer programmer under the pseudonym Satoshi Nakamoto is an immensely popular decentralized virtual currency. In this post we seek to present a brief overview of such currency and its legal classification. We will however discuss the issues in detail in subsequent posts.

Bitcoins are referred to as cryptocurrency. The system basically uses encryption to validate transactions as well as for the production of the currency. Unlike other currencies either real or digital, there is no central bank or other central controlling authority.  Bitcoin’s decentralized system depends purely on an algorithm to regulate the currency thereby excluding human involvement in the production or distribution of the currency.

Bitcoin’s popularity lies in the fact that it works on a peer-to-peer basis. Hence it eliminates the need of a third party which significantly lowers transaction costs. There is a common presumption that transactions relating to Bitcoins are anonymous. However, one must take into account that Bitcoin system records all transactions on a public ledger referred to as blockchain. The transactions are not completely anonymous but allow for the use of pseudonyms. The public ledger is part of a highly cost-efficient design. The public ledger addresses two major problems. Firstly, since each Bitcoin and each user is given a unique digital identity the risk of forgery or counterfeiting is mitigated. Secondly, the public ledger eliminates the need to include a third party to verify transactions since the public ledger itself verifies the transfer of Bitcoins to the seller from the buyer.

In general there are three modes in which Bitcoins can be procured.  Users can exchange conventional money to procure Bitcoins. Typically there is a 0.5 per cent or lower exchange fee in such transactions.  Bitcoins are sold at prices determined on the basis of supply and demand.  The price of Bitcoin is prone to severe volatility with prices fluctuating by a few hundred dollars within a month.

The second method of procuring Bitcoins is by accepting the same as exchange for sale of goods or services. The third method is called mining. Users solve a complex math problem to discover new Bitcoins. Typical home computers will generally not enjoy much success in solving the problem. It is so designed that Bitcoins will be discovered at a limited and predictable rate.

Bitcoins are immune from the monetary policy of the Central Bank of a country since neither its velocity (rate of exchange) or the amount of money is directly under the supervision of the bank determining monetary policy in a country.

Another unique feature is that only 21 million Bitcoins will ever be created. One Bitcoin can be divided up to 8 decimal places. When the maximum limit of Bitcoins are reached,   will be traded without addition in number of Bitcoins, the trades will be likely to be in fractions of Bitcoins such as transactions of 0.10 Bitcoins down to 0.000 000 01 BTC.

Commercial Advantages with Bitcoins

The use of Bitcoins has attained a fair amount of popularity. The widespread use may be attributed to the following:

1. Transaction costs are significantly reduced for electronic payment.

2. Transactions using Bitcoins provide a great amount of privacy and perhaps a complete protection from identity theft.

3.Immunity from inflation is another complex advantage over conventional currency. Once value stored in conventional currency is converted into Bitcoins, a reduction in relative value of conventional currency has no effect on value stored in Bitcoins.

Concerns with use of Bitcoins

The extent of regulation of Bitcoin remains unclear, especially in the Indian context.  In December last year, the RBI released a press note warning users of Virtual Currencies against Risk posed by such currencies including Bitcoins and litecoins. The regulation does not prohibit the use of Bitcoins, instead it declares that the creation of Bitcoins and their trading is not regulated under the auspices of the Central Bank or monetary authority.  The concerns highlighted in the press note are that

i.            Virtual Currency (VC) is stored in electronic form carried in electronic wallets. They therefore become vulnerable to hacking and loss of password.

ii.                  There is no established framework for consumer dispute redressal.

iii.                The value of VC has been subject to great volatility in the recent past.

iv.                VC may be used for illicit transactions.  Further, in view of the limited anonymity this could lead to unintentional breaches of the Anti Money Laundering and CFT(combating the financing of terrorism) regulations.

As a caveat the RBI has stated it is currently examining the issues associated with the usage, holding and trading of VCs under the extant legal and regulatory framework of the country, including Foreign Exchange and Payment Systems laws and regulations.”

Its concerns are well founded in the wake of instances of hacking of VC systems in specific Bitcoins since well known Bitcoin Exchanges like Mt. Gox and Bitfloor have been subject to hacking attacks resulting in great theft of Bitcoins.

                                                                                       

Legal status of Bitcoins

Recently the United States District Court of Eastern District of Texas sought to define the term and stated that a bitcoin is an electronic form of currency unbacked by any real asset or without specie, such as a coin or precious metal. In simple terms, Bitcoins are currencies which are intangible and are not issued by the Central Bank. They are generated by a specific community and are definite mediums of exchange in those communities which accept the same. In its judgement the court stated that:

“It is not regulated by a central bank or any other form of governmental authority; instead, the supply of Bitcoins is based on an algorithm which structures a decentralized peer-to-peer transaction system.” 

The legality of Bitcoins was discussed elaborately in the same case. The point taken into consideration was whether Bitcoins are securities.

This question was answered in the affirmative by the Court. In this case Shavers, the founder of Bitcoin Saving & Trust (BTCST) solicited the sale of Bitcoins to investors. The investors suffered losses due to a fraudulent transactions and misrepresentations. The first question the Court considered was whether Bitcoins are securities under 15 U.S.C. § 77b. Determination of this issue was relevant to assess whether the SEC had subject matter jurisdiction over the dispute.

Shavers contended that a Bitcoin is not a currency regulated in the United States of America. Further no ‘money’ had been exchanged in these transactions. Therefore SEC does not have the jurisdiction. The SEC on the other hand argued that the BTCST investments are both investment contracts and notes, and, thus, are securities.

The term “security” is defined as “any note, stock, treasury stock, security future, security-based swap, bond…[or] investment contract…” [1] An investment  contract is any contract, transaction, or scheme involving (1) an investment of money, (2) in a  common enterprise, (3) with the expectation that profits will be derived from the efforts of the  promoter or a third party.[2]

By relying on the above definition, the court concluded that a Bitcoin can be used as money as it can be used to purchase goods or services. The only limitation being that the same is used only in places where the currency is accepted. Therefore Bitcoin was held to be security.

While the SEC has at least preliminarily found to have standing to regulate Bitcoins, the Treasury has declined from exercising jurisdiction in relation to investments and trading in  Bitcoins.

 In subsequent posts, we will discuss in detail the regulatory issues out of use and trade of Bitcoins and similar currency with a special focus on India.

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[1] 15 U.S.C. § 77b.

[2] SEC v. W.J. Howey& Co., 328 U.S. 293, 298-99 (1946); Long v. Shultz Cattle Co, 881 F.2d 129, 132 (1989).

Why there is no pride in NAZ

On Tuesday, the 28^th of January 2014 a two-judge bench of the Supreme Court dismissed the review petition filed by NAZ Foundation against the Supreme Court order upholding the constitutionality of Section 377 of the Indian Penal Code.

In this post we seek to define clearly the contours of the rights enjoyed by the LGBT community in India by tracing the change in the judicial attitude towards the criminality imposed by Section 377 of the IPC insofar as it relates to gay rights.

In essence, Section 377[1] punishes voluntary acts of carnal intercourse “against the order of nature” with a man, woman or animal. A look at the context and the stated intent of the provision facilitates a conclusion that Section 377 had been enacted to impose a judeo-christian moral and ethical standard which criminalizes all non-procreative sexual activity- i.e oral and anal sex. The direct consequence of this provision is that the penile-vaginal sex is the only permitted sexual activity which in the specific context of homosexual intercourse is not possible. 

While this provision has scarcely used for prosecution, the existence of the provision within the penal code has bred insurmountable social stigma against the LGBT community in India and have encouraged a host of police and civilian brutalities targeting members of the LGBT Community. 

NAZ Foundation decided to espouse the cause of the LGBT and shield them against police brutality and exposure to HIV/AIDS. They filed a writ petition challenging the constitutional validity of Section 377 of the IPC insofar as it criminalizes consensual sexual acts between adults in private which was alleged to violate various constitutional safeguards vis Article 14(right to equality), Article 15(Prohibition of discrimination on ground of sex ), Article 19(right to expression) and Article 21 (right to life and liberty). The Petitioner urged the Court to restrict the application of Section 377 to two specific circumstances: non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

The Delhi High Court in its very progressive judgment agreed with the petitioner and gave birth to the protection of gay rights in India. Sadly, 4 years later, the Supreme Court of India went several steps back and punctured the need for gay rights by upholding the constitutionality of the impugned provision.

A combined analysis of the conflicting judgments of the Division Bench of the Delhi High Court and Supreme Court is carried out under the following broad heads:

a.       Article 21- Dignity, Autonomy and Privacy

Largely in the words of the Delhi High Court, privacy when understood within the prism of autonomy allows persons to develop human relations without interference from the State. The exercise of autonomy, leads to the development of self - esteem, building of relationships, living a life with dignity and pursuit of legitimate goals. The Delhi High Court stated that sexual orientation and gender falls within the private sphere of an individual which is therefore protected under Article 21 of the Constitution of India. It further acknowledged that one cannot leave behind or detach from the sense of gender or sexual orientation. To establish the next link it referred favorably to The National Gay Coalition for Gay and Lesbian Equality v. The Minister of Justice and held that the expression of sexual identity requires a partner, real or imagined. It is neither the duty nor the prerogative of the State to arrange for the choice of sexual partners but for partners to choose themselves. Quite logically, Section 377 IPC denies a gay person the opportunity for full person-hood included in the notion of life under Article 21 of the Constitution of India.

Before the Delhi High Court, the respondents tried to establish the need for retaining the provision as it formed a reasonable exception on grounds of compelling state interest, public health, public safety and morality.

Arguments in favour of decriminalization sought to establish before the Court that there is a compelling state interest to do so as the existence of Section 377 hampers HIV intervention efforts aimed at sexual minorities. This was countered by the ASG’s argument that public health is in fact one of the reasons why Section 377 should be preserved because there is documentary evidence to show that the risk of transmission of HIV is higher in cases of homosexual intercourse (specifically male-male intercourse) as compared to heterosexual intercourse. Hence the provision furthers the aim of preventing unsafe sexual acts and spread of HIV AIDS.  Fortunately, the Court identified that the true question lay in the understanding of the concept of homosexuality as a form of sexual orientation and not a disease and therefore dismissed the argument put forth by the respondent.

The State presented a strong argument which in essence communicated to the Court that alternate sexual orientation is inconsistent and plainly contradicts the country’s moral fabric. The compelling state interest advanced to justify the provision lay in the protection of morality. The High Court’s response was sharp as the Court recognized the distinction between public morality (general public disapproval) and constitutional morality. The latter, derived from constitutional values and not dependent upon the automatic acceptance of majority opinion is the true test to qualify compelling state interest to abridge fundamental rights.

It is clearly noticeable from the reading of the judgment that the Supreme Court relied on two major principles to justify its decision to uphold the constitutionality of the Section 377. First, the Court granted a wide array of protection to the current state of the law on the ground a strong presumption of constitutionality. Second, the Court relied and perhaps overextended the scope of the principle that the mere fear of abuse of a provision would not render a provision unconstitutional.

The Supreme Court could have taken into account the fact that the apprehensions of brutalities against members of the LGBT community are not empty fears but an inevitable consequence of the existence of such a provision.

b.      Violation of Article 14 & 15

Under the Constitution of India, all persons enjoy a right to equality. In this context, the essence of NAZ’s argument is that Section 377 does not only criminalize the act of homosexual intercourse but also has the direct effect of prejudicing the community and facilitating this social stigma. In accordance with their argument, the violation of Article 14 therefore lies in the fact that homosexuals as a class, are targeted and prejudiced as a result of operation of Section 377.

The Supreme Court, however adopted a different interpretation of Article 14. It stated that while conferring privileges or imposing liability upon similarly situated persons was prohibited under Article 14, it does not forbid classification for the purpose of legislation on the condition that it is not arbitrary. In this specific context ‘arbitrary’ is a rather incomplete term. According to the Court classification that is based on “some” qualities or characteristics and such quality or characteristic has a reasonable nexus with the object sought to be achieved by the Act. The Court does not seem have to have gone into this issue in detail. No reasoning has been offered to distinguish how this general line of argument is different in application to this provision vis-à-vis other penal statutes. Also, the Court seems to have assumed without much discussion that Section 377 independently qualifies as having a rational nexus with the object of the legislation- the IPC. 

In what is perhaps the most difficult conclusion to agree with, the Supreme Court in its judgment states that:

“While reading down Section 377 Indian Penal Code, the Division Bench of the High Court overlooked that a miniscule fraction of the country's population constitute lesbians, gays, bisexuals or trans-genders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 Indian Penal Code and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

On the face of it, this line of reasoning has one consuming inconsistency- in order for the Court to be empowered to draw this conclusion it would have to also affirm that the criteria for determining unconstitutionality on the basis of violation of the equality or liberty clause in the Constitution depends upon the number of people affected, which it is, by its own strong line of precedent, precluded from doing.

The allegation of violation of Article 15 also arose out of the same facts and the Delhi High Court understood Article 15 and Article 16 as areas of specific application of Article 14, the genus of the varied species of equality enshrined in the Constitution. The Supreme Court however did not find a violation of Article 15 of the Constitution in this case.

A certain amount of disillusionment is the prevalent in the mood. Perhaps, it arises out of our common agreement to what Delhi HC stated – “A provision of law branding one section of people as criminal based wholly on the State's moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review.”

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[1] 377. Unnatural offences.-- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[ 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. Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.