The Supreme Court of India, in landmark decisions such as National Legal Services Authority (NALSA) v. Union of India (2014) and Navtej Singh Johar v. Union of India (2018), charted a profound course toward a rights-respecting republic. The decriminalisation of Section 377 was a juridical triumph, affirming that sexual autonomy and dignity are inseparable from the fundamental right to life. The judiciary instructed the State to recede from the intimate lives of its citizens. Yet, as the locus of human existence has shifted decisively into the digital realm, a subsequent legislative failure has allowed the State, by architecture of omission, to stand sentinel at the door, perpetually observing and jeopardising the very lives the Constitution sought to liberate.[1]
The core argument herein is that while the internet functions as a crucial emancipatory space, enabling the move from invisibility to constitutional life for India’s gender and sexual minorities, the Digital Personal Data Protection Act (DPDPA), 2023, represents a fundamental betrayal. By deliberately excluding ‘sexual orientation’ and ‘gender identity’ from categories of enhanced protection, the DPDPA has enshrined a structural digital precarity, fundamentally undermining the promise of dignity and non-discrimination guaranteed by the apex court. [2]
I. The Emancipatory Code: Rewriting Norms through Digital Selfhood
The unprecedented spread of digital technology, especially social media and Over-the-Top (OTT), has provided a drastic point of departure to the long-term battle against heteronormative patriarchy in India. To the LGBTQI+ community, which has always been deliberately made unseen, the digital realm helps to make a critical change from invisibility to visibility. It is an important infrastructural component that offers community, solidarity and facilitates circumventing the old gatekeepers of the conversation.[3]
This computer emancipation is intersectional in nature. We observe its power in the mobilisation of feminist awareness, such as the #PinjraTod movement that also successfully used social media as a means of defying the gender constraints on women’s movement and also challenged the policing of women’s bodies in both the social and institutional space. Equally, the emergence of regional OTT is creating complicated queer narratives in local languages, thus decolonising the formerly English-centred queer discourse and securing the presence of any number of identities within the region.[4]
Moreover, the internet plays a value-added role in the construction of personal identities, which gives freedom of expression and anonymity required in reality. This exploring, connecting, and online activism directly translates into political action, so the community is able to challenge the archaic systems and break the draconian social boundaries.[5]
II. Digital Precarity: The Cost of Performative Visibility
However, the emancipatory nature of the digital space is critically constrained by two dialectically opposed forces: performativity and violence. Digital selfhood, particularly for gender and sexual minorities, is defined by a precarious tension. The demand for constant visibility necessitates strategic self-curation—the maintenance of a carefully constructed digital persona—which often leads to a dissonance between the public online self and the private, authentic self.[6]
This performative reliance on visibility renders queer individuals exceptionally vulnerable to severe, targeted digital violence. Research meticulously documents that dating platforms, while crucial for community building, are also documented sites for gay dating platform-enabled crimes, including image-based sexual abuse, romance fraud, and particularly sexual extortion. Intimate personal details, such as sexual preferences and identity markers, are weaponised for doxxing, outing, and targeted harassment, often with impunity. The offline consequences of these digital attacks are severe, underscoring the risk associated with asserting a non-heteronormative digital self. [7]
Moreover, the digital sphere is not power-neutral. Marginal queer and trans users are particularly susceptible to surveillance and censorship stemming from the political economy and governance logics of digital platforms. This corporate-state nexus of monitoring risks compromises the privacy that underpins the constitutional right to sexual autonomy, confirming that visibility is celebrated only until it conflicts with dominant moral or political expectations. The necessary reliance on “quotidian playful resilience” to navigate these persistent risks highlights the profound structural insecurity embedded in India’s digital experience. [8]
III. The Regulatory Retraction: A Horizontal Equality Deficit
The greatest legislative failure that crippled the gains made by the judiciary is the Digital Personal Data Protection Act (DPDPA), 2023. The legislation, which embodies the data protection architecture of close to a billion users, is a critical missed chance to enhance the right to privacy among the vulnerable group. [9]
Crucially, the DPDPA deliberately fails to differentiate between ordinary personal data and highly sensitive personal data. Unlike its 2019 draft, the final Act excluded explicit categories such as “sex life,” “sexual orientation,” and “transgender or intersex status” from enhanced protection. This omission is a policy choice that renders data generated on dating apps and identity-specific platforms—data directly linked to an individual’s risk of physical harm and discrimination—as equivalent to non-sensitive commercial data.[10]
The ramification of this exclusion is profound: it lowers the regulatory compliance burden for powerful “Data Fiduciaries” (Big Tech platforms) while actively elevating the risk of violence and discrimination for the user. Instead, the law does not offer the necessary level of data protection relative to the level of harm that may be caused, which is clearly against the constitutional requirement of dignity in the case of Puttaswamy. [11]
This disparity contributes to the shortcomings of horizontal equality in India. Although the constitutional rights assure non-discrimination by the State, it is not yet achievable against the actors in the private sector. That the DPDPA did not create greater protection against discrimination by the private sector implies that casualties of the platform-facilitating doxxing or identity-related data breaches have extremely little legal recourse against the highly influential entities of the private sector. The extensive exemptions of government and national interest in the law are further causes of suspicion that state surveillance would be directed against such digitally conspicuous identities. [12]
IV. Conclusion: A Mandate for Data Justice
The internet is not just a utility, but the new canvas that the citizens of India use to express and assert their basic rights. The constitutional undertaking of securing dignity and autonomy concerning gender and sexual minorities will not be completed before the regulatory code articulates the judicial compassion that the vast majority of gender minorities face, the intense gendered and rural digital divide, as only 25 of the rural women have internet connection as opposed to 49 per cent of the men. The rights of digital selfhood become pegged to a division of classes in the technology.
India must rectify the teleological failure of the DPDPA 2023 by urgently amending the Act to recognise Sexual Orientation and Gender Identity as data categories warranting enhanced, non-negotiable protection. Data justice for marginalised communities requires proactive state intervention, not legislative indifference. We must ensure that the visibility granted by technology is secured by law, transforming the digital sphere from a domain of precarity into a realm of substantive equality and genuine digital selfhood. The time has come to secure the privacy required to fulfil the promise of freedom.
[1] Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India)
[2] Digital Personal Data Protection Bill, 2023 (as introduced in Lok Sabha Aug. 3, 2023), available at https://prsindia.org/files/bills_acts/bills_parliament/2023/Digital%20Personal%20Data%20Protection%20Bill%2C%202023.pdf
[3] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).
[4] Digital Personal Data Protection Bill, 2023 (pdf) (duplicate of item 2), available at https://prsindia.org/files/bills_acts/bills_parliament/2023/Digital%20Personal%20Data%20Protection%20Bill%2C%202023.pdf
[5] Internet Freedom Foundation (Prateek Waghre & Tanmay Singh), Internet Freedom Foundation Statement on the Digital Personal Data Protection Bill, 2023 (3 Aug. 2023), available at https://internetfreedom.in/statement-dpdpb-2023/
[6] International Institute for Population Sciences (IIPS), Mumbai & ICF/The DHS Program, National Family Health Survey (NFHS-5), 2019–21: India: Volume I (2022), available at https://dhsprogram.com/pubs/pdf/FR375/FR375.pdf
[7] Ministry of Electronics & Information Technology (statement laid by Shri Ashwini Vaishnaw), Statement referred to in reply to Rajya Sabha Starred Question No. 22 for 03.02.2023 regarding Female Internet Users in India, Rajya Sabha (3 Feb. 2023), available at https://sansad.in/getFile/annex/259/AS22.pdf
[8] Alana Ray & Nicola Henry, Sextortion: A Scoping Review, Trauma, Violence, & Abuse (first published online Sept. 25, 2024), available at https://pmc.ncbi.nlm.nih.gov/articles/PMC11558931/ (DOI: 10.1177/15248380241277271).
[9] Himel Mondal, Manas Ranjan Sahoo & Shaikat Mondal, Characteristics of Cyber Sextortion in India: Content Analysis of Online Newspapers Published in 2019–2021, J. Psychosexual Health (2022), https://doi.org/10.1177/26318318221096755.
[10] PRS Legislative Research, The Digital Personal Data Protection Bill, 2023, BillTrack (Aug. 2023), available at https://prsindia.org/billtrack/digital-personal-data-protection-bill-2023
[11] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India).
[12] Digital Personal Data Protection Bill, 2023 (as introduced in Lok Sabha Aug. 3, 2023), available at https://prsindia.org/files/bills_acts/bills_parliament/2023/Digital%20Personal%20Data%20Protection%20Bill%2C%202023.pdf
One reply on “The Dialectic of Digital Visibility: Queerness, Law, and the Teleological Failure of India’s Data Regime”
The article offers a compelling critique of the assumption that increased digital visibility necessarily translates into empowerment for queer communities. The idea of “teleological failure” is particularly striking, as it challenges the linear narrative embedded in India’s data governance framework.
However, one might also argue that complete invisibility is not a viable alternative, especially for securing welfare entitlements and policy recognition. The real issue perhaps lies not in visibility per se, but in the absence of robust data protection safeguards and context-sensitive frameworks.
A more nuanced approach balancing informational self-determination with protective anonymity could better address the concerns raised.