In Supreme Court of India
160 Delhi Law Times 277
Government of NCT of Delhi and others
Date of Judgement
2 July 2009
Chief Justice Ajit Prakash Shah and S. Muralidhar
The case that we discuss today is a landmark case in the legal history of India. This case was Naz Foundation v. Government of NCT of Delhi and who issued a writ petition brought about by the Naz foundation, an NGO working with and for HIV/AIDS sufferers, which held that Section 377 of the Indian Penal Code was unconstitutional. Section 377 entitled “Of Unnatural Offences” has been on the statute books since 1861 and has effectively become a topic for discussion as many feel that it blatantly oppresses and withholds the freedom and choices of a certain minority and group. The Naz Foundation stated that Section 377 violated the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. It held its opinion the in public interest on the grounds that its work on tackling the spread of HIV/ AIDS was being thwarted by the discrimination faced by the LGBT community as a result of Section 377. This discrimination, the petitioners submitted, resulted in the refutation of some core and fundamental human rights, abuse, harassment and assault by the public authorities, henceforth driving the LGBTQ+ community underground and forced them to be a shell of their own identity. the legislative records show that the first records of sodomy was a crime in England under common law and was chronicled in the Fleta, 1920 and later in Britton, 1300. The Indian penal code was designed by Lord Macaulay and was introduced in 1861 in the colonized india. The main controversy and the biggest talking point here is that this law was clearly created by people who had utter and complete control over the minds of Indians and implicating such a law in the present times certifies their prowess on our laws in the present times too. This law remains archaic in the opinion of many and needs a revision so as to include the minorities too.
1. Section 377 of the Indian Penal Code, which was implied and introduced during the colonial rule in india, criminalizes “carnal intercourse against the order of nature”. This phrase was interpreted and to mean all variations and kinds of sexual activity except heterosexual penile-vaginal intercourse.
2. The movement to remove Section 377 was led by the Naz Foundation Trust, a non-governmental organization (NGO). They filed a lawsuit in the delhi High Court in 2001, looking for the legalisation of homosexual intercourse between two consentful adults
3. This was the second petition of its kind, the first one being filed in 1994 by AIDS Bhedbhav Virodhi Andolan.
4. In 2003, the Delhi High Court denied to consider a petition concerning the legality of the law, stating that the petitioners had no locus standi in this matter.
5. The Naz Foundation then turned to the Supreme Court of India against the decision of the High Court to dismiss and neglect their petition on technical grounds.
6. The Supreme Court decided and hereby stated that the Naz Foundation had the legality and the standing to file a public interest lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the basis of merits.
7. In 2006, the National AIDS Control Organisation also filed an affidavit saying that the enforcement and implication of Section 377 violates the rights of the LGBT community.
8. Simultaneously, there was a significant and important intervention in the case by a Delhi-based coalition of LGBT, womenand human rights activists called “Voices Against 377”, who supported the demand to “read down” and do away with section 377 to exclude adult consensual sex fromits perception.
1. The Naz Foundation stated that the harassment and discrimination of the gay and transgender minority in India resulting from the continued implication of Section 377 affected the rights of that community which were guaranteed under the Constitution, which included the right to equality, the right to non-discrimination, the right to privacy, the right to life and liberty, and the right to health.
2. They argued that the Constitution protected the right to privacyunder the right to life and liberty enunciated in Article 21.
3.They further arguedand submitted that the right to non-discrimination on the basis of sex in Article 15 should not be read restrictively and obstructively but should include “sexual orientation”.
4. They also held that the criminalisation of homosexual activity and actions by Section 377 was discriminatory on the basis of sexual orientation and was hence contraryto the Constitutional guarantee of non-discrimination under Article 15 of the Indian Constitution. This section aims at promoting safe sex practices.
5. Lastly, the Naz foundation enunciated that courts in other areas and jurisdictions have struck down and done away with comparable provisions regarding sexual orientation on the grounds that they violated the rights to privacy, dignity and equality. Further they stated that government cannot make private sexual behavior criminal when there is no overriding compelling state interest.
1. Both the Ministry of Home Affairs (MHA) and the Ministry of Health and Family Welfare submitted legal opinions in respect to the writ petition. But what came as a surprise was that the two ministries opposed each other in terms of the legal argument submitting two “completely contradictory affidavits”.
2. The MHA, argued for the retention of Section 377 on several grounds. First, that it provided for the prosecution of individuals for the sexual abuse of children. Second, that it filled a gap in the rape laws. Third, that if removed it would provide for “flood gates of delinquent behaviour” which would not be in the public interest. Finally, MHA submitted that Indian society does not morally condone such behaviour and law should reflect societal values such as these.
3. In contrast, the Ministry of Health and Family Welfare (with association from the National Aids Control Organisation) submitted evidence in support of the Naz Foundation’s plea– that the existence of section 377 is counter productive to the efforts of HIV/AIDS prevention and treatment for the same.
4. They argued for the removal of Section 377 saying that it makes a large stratum of people in high risk categories in relation to HIV/AIDS reluctant to come forward for treatment due hesitance or because of fear of law enforcement agencies, and that in driving homosexuality underground it increases promiscuous behaviour that is of unprotected sex.
Significance of the Judgement
1. In a decision that has been considered not only as a landmark win for equality and social justice but also in terms of its holistic legal reasoning the High Court of Delhi summed up that “Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”.
2. While many parts of the judgement will be far-reaching for LGBT rights in India, the High Court’s enunciation on the right to equality (Article 14 and 15 of the Indian Constitution) is particularly applaud worthy, for two reasons.
3. Firstly, the judgment should be praised for its cohesive stature on a holistic level. In undertaking a comprehensive and wholesome analysis of the law of India with respect to discrimination on the grounds of sexual orientation, the High Court has left little to or no margin for the decision to be overturned on the grounds of misinterpretation or promiscuous implication of the law.
4. Secondly the High Court’s reference and application of the highest international standards on equality to the Indian context set a positive and uplifting example which should inspire and motivate judicial decision-making in countries which currently criminalise same-sex conduct.
5.The High Court started its Article 14 analysis by laying out that any differnce or classification must be based on a justified differentia which has a logical relation to theaim sought and must not be unfair or unjust.
6. Section 377, the Court held, does not differentiate between public and private acts, or between consensual and non-consensual acts, therefore it does not take into account relevant factors such as age, consent and the nature of the act or absence of harm.
7. Therefore, such criminalisation in the absence of evidence of harm seemed archaic and unreasonable. Considering the legal principles laid out by Article 14 of the Constitution, the Court took into consideration the Equal Rights Trust’s Declaration of Principles on Equality as “the current international understanding of Principles on Equality”. Citing in full Principles 1 (right to equality), 2 (equal treatment) and 5 (definition of discrimination) of the Declaration, together with landmark jurisprudence from the Canadian, South African and United States courts, the High Court enunciated that there was an urgent need to include sexual orientation among protected grounds of discrimination and state indirect discrimination and harassment into any consideration for the right to equality.
8. Dealing with the argument that Section 377 was neutral, as submitted by the MHA, the High Court stated that although the provision on its face was neutral and targeted acts rather than persons, in its operation it unfairly targeted a particular community, having the result that all gay men were considered criminal and it therefore violated Article 14 of the Constitution.
9. Moreover to consider whether the reference to “sex” in Article 15 of the Constitution should be regarded as including sexual orientation on the grounds that discrimination on the stature of the latter is based on stereotypes of conduct on the basis of sex – as was contented by the Naz Foundation, the High Court referred to the Human Rights Committee’s decision in Toonen v. Australia, (No.488/1992, CCPR/C/50/D/488/1992, March 31, 1994) in which the criminalisation of sexual acts between men was considered a violation of Article 2 of the International Covenant on Civil and Political Rights, where a reference to “sex” was taken as including sexual orientation. On the basis of the analysis of Indian and international human rights jurisprudence the High Court declared that Section 377 was also unconstitutional on the basis of Article 15:
“We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.”
10. Summing up its judgment, the High Court stressed the importance of upholding the values of equality, tolerance and inclusiveness in Indian society by stating
“If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘Deviants’ or ‘different’ are not on that score excluded. For the time being, the decision of the High Court of Delhi has invalidated the criminalisation of consensual same-sex conduct between adults across the country. Since the writ petition involved a constitutional matter, the judgment will be implicated throughout India. However, the judgment is limited to adults. Hence, “Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”
11. The Central government has apparentlydecided not to contest the decision. At the same time, according to author Ratna Kapur, “at least nine other petitions have been filed in the Supreme Court, the most famous being that of Baba Ramdev, the brand ambassador for Ayurveda and Pranayama yoga. The challenges are based on arguments that range from assertions that homosexuality is an illness for which there is a cure to expressions of anxiety over the crisis of cultural identity produced by the decision. Most of the challenges allege that homosexuality is associated with rampant promiscuity of the West, which centres hedonism and pleasure that are not apparently a part of our genetic cultural make-up.”
12. It is assumed that it will be many years before a concrete decision is handed down by the Supreme Court, but it is significant to note that the level of criminal conviction over the longevity of Section 377 was low.
13. The biggest challenge to Section 377 was that it allowed and propagated the harassment, victimisation and persecution of LGBT people by law enforcement and other officials, to an extent where LGBT people have suffered extreme violations of their human rights and are unable to live their lives in equal dignity and at par with others in Indian society
14. Such harassment and discrimination will not automatically go away. LGBT people would still face harassment and discrimination from law enforcement officials and from a wider stratum of the society, albeit from now on these will be clearly in violation of the law.
15. Furthermore, it will take time for the judgment to “bed-in” or settle in the minds of the people and activists have already reported that the message that homosexuality is no longer a criminal offense has not reached some law enforcement agencies.
16. Simultaneously, there is an utmost need for awareness-raising among both LGBT people and law enforcement agencies and for reinforcing the effect of the decision and inform the LGBT community about their new legal rights.
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje