– Thulasi K. Raj and Maitreyi Hegde
In this part, we will be highlighting how the decision in Joseph Shine is deficient in its structural analysis on the right to privacy.
Privacy and evaluative tools
An important argument of the Petitioner revolved around how the impugned provisions violated the fundamental right to privacy under Article 21 by interfering with the right to voluntary, consensual sexual intercourse between adults. This submission proceeded in three steps – first, the constitution guarantees a right to privacy . Secondly, the right to privacy necessarily contains within it the right to sexual autonomy. The right to privacy is understood as the ‘freedom of personal choice in matters of marriage and family life’ (Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)), the decision whether to use or not use contraceptives (Griswold v. Connecticut, 381 U. S. 479), and the “acceptance of the fact that different individuals will make different choices.” (Bowers v. Hardwick, 478 U.S. 186 (1986) (per the dissenting judgment of J. Blackmun)). It is fair to ask, “does the Constitution, therefore, recognize as an aspect of our fundamental right to privacy only those decisions within the marriage deemed by the state to be the right ones?” .
The third step, the crucial point in the argumentation was that there is no good reason to discriminate between sexual intercourse outside or inside marriage and between sex based on the marital status of both or either of the individuals. Regardless of how abominable the State thinks extra-marital sexual conduct is, that is no reason to criminalise conduct or to constitute a ‘compelling state interest.’ The right to extramarital sexual conduct stands protected by the “rights to privacy and intimate association.” (Janelle Perez v. City Of Roseville US Court of Appeals, No. 15-16430, 2018).
It was categorically argued that the right to sexual freedom necessarily includes the right to choose one’s sexual partner, even when one person is legally married to another. Penalising the adulterous relationship infringes the right to choose the sexual partner or the right to make one’s sexual preferences. S.497 therefore violates the fundamental right to sexual privacy. This also echoes the sentiment expressed by Chelameswar J. in Puttaswamy : “I do not think that anybody would like to be told by the state as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life.”
Once it is convincingly established that there is a right to privacy to engage in extra-marital conduct, it follows that the state cannot criminalise it except by demonstrating permissible grounds for infringing with a fundamental right. Penalising an action, especially when it is liberty infringing is flatly unconstitutional.
However, the privacy concerns were insufficiently addressed by the Court. The judgment by Misra, CJI and Khanwilkar J. did hold that “if (adultery) is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere” (Para. 49). However, the crucial link between the fundamental right to privacy and criminalisation seems apparently lacking. The majority and the concurring judgments, with the exception of Chandrachud J. have a visible hesitation to emphatically hold that there is a fundamental right to consensual sex outside marriage. However, no other principle can satisfactorily explain the constraint on the state to criminalise a conduct.
As David A. J. Richards argues, a person’s autonomy is the centre of the human rights approach. On individual autonomy, there is an enriched jurisprudence developed by the constitutional courts in India. The right to autonomy was consistently held to be an inalienable part of right to life under Article 21 . In Navtej Singh Johar, the Supreme Court recognised that sexual autonomy is protected by our Constitution. Interestingly, several of the references (Paras. 25-41) on privacy in Joseph Shine pertain to the right to dignity of the individual, which is quite different from an independent right to sexual autonomy and choice.
Hence, even when the greater part of the judgment elaborately focused on the right to dignity, it failed to explore the violation of right to one’s sexual autonomy as part of right to dignity. Therefore, the Court could have developed a sophisticated theory of sexual privacy, taking cue from Navtej Singh Johar and a well-established foreign jurisprudence . This absence of a detailed exploration on the right to privacy remains a fatal shortfall of the judgment.
Various methods are adopted for testing the constitutionality of criminal laws across different jurisdictions . The test adopted by the Constitution Court of South Korea is instructive in this regard. When the criminal law on adultery was challenged as violative of the constitutional rights of privacy and self-determination, the Court successfully examined the impugned statute in terms of appropriateness, effectiveness and side effects of the criminal law. It also considered the nature and excessiveness of the criminal punishment. The Court evolved questions on how the State can enter into the private realm of an individual’s life, what is the outer limit of the right to privacy, and to what State intrusion is permissible. Further, the adverse impact of criminal penalty on matrimonial homes was also considered. Such a systematic evaluation is absent in Joseph Shine. A great part of the judgment failed to employ an independent evaluation methodology – a proportionality type test – to examine the impugned statutory provisions.
However, as highlighted in the previous post, there still are reasons to celebrate the judgment. In the emerging liberty jurisprudence, Joseph Shine will remain unquestionably prominent. It asserts that the State cannot impose moralistic notions of right and wrong on individuals. It clearly bifurcates subjective popular morality from constitutional morality. It resonates with Dale Carpenter’s comment on Lawrence v. Texas 539 U.S. 558 (2003), where sexual autonomy was constitutionally recognized, “the deeper answer is that Lawrence, in all its emotional, social, and legal complexity, is a reflection of life itself. People do indeed lead complex lives. They fall in love, cheat, lie, drink. None of this makes them any less entitled, as Justice Kennedy put it, to “respect for their private lives.” If it were otherwise, there would be very few people – gay or straight – entitled to liberty.” 
(The authors are lawyers who appeared in the Supreme Court on behalf of the Petitioner along with Adv. Kaleeswaram Raj in Joseph Shine v. Union of India)
 See K.S Puttaswamy v. Union of India, (2017) 10 SCC 1, Ram Jethmalani v. Union of India, (2011) 8 SCC 1, R. Rajagopal alias R.R. Gopal and another v. State of Tamil Nadu, (1994) 6 SCC 632, PUCL v. Union of India, (1997) 1 SCC 301, Gobind v. State of M.P. ,(1975)2 SCC 148.
 Martin J. Siegel, For Better or for. Worse: Adultery, Crime & the Constitution, 1991 30 J. FAM. L. 45, 71.
 Gobind v. State of M.P., (1975)2 SCC 148, Selvi v. State of Karnataka, (2010) 7 SCC 263, Common Cause v. Union of India, (2018) 5 SCC 1, Khushboo v. Kanniammal and another, (2010) 5 SCC 600, K.S. Puttaswamy v. Union of India and Others, (2017) 10 SCC 1, Shakti Vahini v. Union of India, (2018) 7 SCC 192, Shafin Jahan v. Ashokan K.M. and others, 2018 SCC OnLine SC 343.
 Relating to marriage, Loving v. Virginia, 388 U. S. 1, 388 U. S. 12 (967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 316 U. S. 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 405 U. S. 453-454; id. at 405 U. S. 460, 405 U. S. 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925); Meyer v. Nebraska, [262 U.S. 390, 262 U. S. 399 (1923)” as per Carey v. Population Services International, 431 U.S. 678 (1977).
 See Benjamin L. Berger, Constitutional Principles in Substantive Criminal Law, (2014), Forthcoming in The Oxford Handbook of Criminal Law, Osgoode Legal Studies Research Paper Series, 54 http://digitalcommons.osgoode.yorku.ca/olsrps/54.
 See Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas at 281 W. W. Norton Company, 2012, as cited by H. Hunter Bruton, The Questionable Constitutionality of Curtailing Cuckolding: Alienation-Of-Affection and Criminal-Conversation Torts, 65 Duke Law Journal 755 (2016).