Procedural Posture
The petitioner filed a writ petition in the Allahabad High Court, challenging the orders issued against him by Aligarh Muslim University on the grounds that they violated his constitutional rights.
Facts
The petitioner was a reader and chair of the Department of Modern Indian Languages of Aligarh Muslim University. He was living in campus accommodation and awaiting promotion to professor prior to his retirement. In February 2010, some members of the press broke into his residential quarters and filmed him having sex with a male partner. University personnel arrived on the scene and examined the video footage. The following day, the Vice Chancellor of the University placed the petitioner under suspension and ordered him to vacate his house.
The petitioner was served with notice for a hearing on a charge of misconduct. He was accused of indulging in “immoral sexual activity … in contravention of basic moral ethics” while living in University housing and of thereby undermining the “pious image” of the academic community. After the incident, the media also started publishing videotapes and clippings about the petitioner. The petitioner replied to the charge sheet but at the same time decided to file a writ petition against the measures adopted by the University.
Issue
Whether the petitioner’s suspension from his teaching position and his removal from his campus accommodation violated his rights to privacy and equality.
Domestic Law
Aligarh Muslim University Act 1920, Sections 13 and 36 B.
Constitution of India, Articles 14 (right to equality), 15 (non-discrimination), 16 (equality of opportunity in public employment), and 21 (protection of life and personal liberty).
Statutes of the Aligarh Muslim University, Section 40 (removal of members and employees).
Naz Foundation v. Government of NCT of Delhi and Others, High Court of Delhi at New Delhi, India, 2009 (finding Section 377 of the Indian Penal Code to violate constitutional guarantees of privacy, equality, non-discrimination, dignity and health).
Reasoning of the Court
The petitioner stated that no complaint of indecent behaviour or misconduct had been made against him at any time. In reply to the charges, he admitted being gay and said that he had never hidden his sexual orientation. According to him, his sexual orientation was not any person’s concern and the right to privacy and the right to equality under Articles 14, 15 and 21 of the Constitution of India protected what he did in the privacy of his home.
Furthermore, the petitioner maintained that both the media and university personnel had entered his flat without his consent and had therefore intruded into his privacy in violation of Article 21 of the Constitution. He also submitted that Article 14 and 16 of the Constitution guaranteed equality to all persons, regardless of their sexual orientation, and prohibited discrimination on such ground. Moreover, according to the petitioner, any act done in the privacy of a person’s home, which did not affect his employment, did not amount to misconduct subject to departmental inquiry and persecution.
The petitioner relied on Naz Foundation for the argument that he was entitled to the rights to privacy, dignity, equality and non-discrimination with respect to sexual orientation.
The defendant raised preliminary objections to the writ petition on the grounds that the suspension order was still subject to approval by the Executive Council. The petitioner still had administrative remedies available to him, since he could appeal to the Executive Council.
First, the Court held that the question of the applicability of Naz Foundation did not arise in the case because the allegations were not the basis of any criminal offence, charge or conviction involving “moral turpitude”. Second, it held that the possibility of appeal to the Executive Council was not a bar to entertaining the writ petition.
The Court further stated that the petitioner was justified in stating that an adult’s sexual preference may not amount to misconduct, especially given the circumstances in which the fact was discovery (in violation of the right to privacy). It affirmed that privacy was a fundamental right that needed protection and that, in any case, the allegations made against the petitioner would require a strict standard of proof if they were to fall within the definition of immorality and amount to misconduct.
As an interim measure (while the petitioner’s appeal to the Executive Council against the suspension order was pending), the Court ordered a stay of both the order and the petitioner’s removal from his campus accommodation. It also restrained the media from publishing any material on the incident.
SR Siras v. Aligarh Muslim University, High Court at Allahabad, India (full text of judgment, PDF)