| CITATION | 160 Delhi Law Times 277 Legal services |
| DATE OF JUDGMENT | 02-July-2009 |
| PLAINTIFF | Naz Foundation |
| RESPONDENT | Government of Delhi & Ors |
| STATUTES REFERRED IN THIS CASE | Code of Criminal Procedure |
| BENCH | Chief Justice Ajit , Prakash Shah(j) , S.Murlidhar |
INTRODUCTION
Naz Foundation vs. Govt. of NCT of Delhi is a landmark case. In this case a writ petition was filed by Naz Foundation, an NGO working in the public health field, to challenge the constitutionality of Section 377 of the Indian Penal Code, which criminalised as “unnatural offences” consensual oral and anal sex between adults in private. In 2004, the Delhi High Court dismissed the writ petition on the ground that it could not hear an academic challenge to the constitutionality of the legislation. Naz Foundation appealed to the Supreme Court, which held that the matter should be heard and remanded it for consideration. Voices Against 377, a coalition of associations representing the human rights of children, women and LGBT people, intervened in support of the petitioner. The respondent, Union of India, was represented by the Ministry of Home Affairs and the Ministry of Health & Family Welfare. However, the government position split, and the Ministry of Health & Family Welfare argued in favour of the petitioner.
FACTS OF THE CASE
This case concerned a writ appeal (a public interest action taken under the watchful eye of the court) brought by an Indian NGO working with HIV/AIDS victims which contended that Section 377 of the Indian Penal Code was unlawful and illegal.
Section 377, named “Of Unnatural Offences”, has satisfactorily been unravelled as denouncing consensual sexual acts between individuals of a comparative sex. Section 377 states: “Whoever intentionally has carnal intercourse against the order of nature with any man, woman or animal will be rebuffed with [imprisonment for life] or with imprisonment for either. Description for a term which may loosen up to ten years and will, moreover, be liable to a fine.” The Naz Foundation and others presented that this understanding of Section 377 abused the fundamental rights ensured under Articles 14, 15, 19 and 21 of the Constitution of India.
The Foundation brought the action in the public interest in light of the fact that its work on battling the spread of HIV/AIDS was being hampered by discrimination against the gay community. This discrimination, the petitioners submitted, resulted in the denial of fundamental human rights, misuse, provocation and attack by public authorities, accordingly driving the gay community underground and exposing them to more prominent weakness, disregarding their fundamental rights.
ISSUE RAISED
The major issues that emerged before the Court for its attention and consideration involved the violation of fundamental rights under Articles 14, 15 and 21 of the Constitution of India.
1. Whether Section 377 violates any of the provisions of Part III of the Constitution of India and therefore whether it is constitutionally valid or not?
2. Whether Section 377, in so far as it criminalises consensual sexual activity of two adults of the same sex in private, is violating Article 21 (Right to Life and Personal Liberty) guaranteed by the Constitution of India?
JUDGEMENT
In this case the NAZ Foundation, a non-governmental organisation working in the field of HIV/AIDS prevention, particularly amongst men who have sex with men (MSM), argued that its work was severely impaired by discriminatory attitudes exhibited by state authorities towards sexual minorities, MSM, lesbians and transgender individuals and that discriminatory laws such as Section 377 (Unnatural Offences) of the Indian Penal Code should be repealed. The petitioners stated that Section 377, to the extent it is applicable to and penalises sexual acts in private between consenting adults, is violative of Articles 14 (equality before the law), 15 (non-discrimination), 19(1)(a)-(d) (freedoms of expression, assembly and association) and 21 (right to life) of the Constitution.
This was a landmark decision by the Delhi High Court, ending over a century of discriminatory legislation by declaring parts of Section 377 unconstitutional. The court declared ‘that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.’
Considering Article 14 of the Constitution, the court held that whilst on its face Section 377 is neutral, in its operation it unfairly targets a particular community; ‘the fact is these sexual acts which are criminalised are associated more closely with one class of persons, namely, the homosexuals as a class’ and is in violation of Article 14.
When considering the question of whether ‘sex’ under Article 15 of the Constitution should be interpreted as including sexual orientation, the court held ‘that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15.’ Consequently, Section 377 of the Indian Penal Code also violated Article 15.
The court concluded by stating that ‘it cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
REASONING
In this case, the court understood the true meaning of the right to life and liberty, which included the right to dignity and privacy under the fundamental Right to Freedom charter of the Constitution, and so the court decided that the criminalisation of consensual gay sex violated these rights.
The court also reasoned with the fact that Section 377 disturbs the guarantee of equality ensured in Article 14 of the Constitution because it targets homosexuals as a different class. Public disgust towards a particular class is not a reasonable ground for classification under Article 14. Article 15 of the Constitution discourages discrimination on the basis of certain characteristics like “sex”.
The court also reasoned that the word “sex” does not only include biological sex but sexual orientation too, and that is why discrimination on the basis of sexual orientation is not allowed under Article 15. The court also decided that the right to life under Article 21 also involves the right to health and inferred that Section 377 is an obstacle to public health because it obstructs HIV-prevention efforts.
The Court did not scrape down Section 377 altogether. It is just that now Section 377 is not applicable to consensual homosexual sex between two adults in private.
CONCLUSION
Regardless of such a landmark judgement by the Indian judiciary. India’s sexual minorities still face discrimination in the medical sphere and in getting individual rights.
This makes them incongruent with the nation’s living, liberal and comprehensive constitution.
It divests them of their rights and hinders their social growth. Justice Anthony Kennedy the judge of US Supreme Court said in Obergefell v. Hodges (2015) that we cannot compromise on the basic human rights of marriage and cannot deny them to same-SEX People
The LGBTQ community needs an anti-discrimination law that empowers them to build productive lives and relationships. Irrespective of gender identity or sexual orientation, place the duty to change on state and society, not the individuals.
Article 15 of the constitution states that there should be no discrimination based in sex and gender
If we aim to truly eradicate gender discrimination from society, we would have to extend the scope of Article 15 and add grounds of non-discrimination, including sexual orientation and gender identity.
Thus, consensual sexual activities between two adults of the same sex should not be regulated by a law, as it violates their fundamental rights, and a person’s choice of sexual accomplice is no business of the state to regulate. Section 377 is abused to brutalise the persons belonging to the gay community. Popular morality, as distinct from constitutional morality as derived from constitutional values, is based on shifting notions of right and wrong, and as of today, a large chunk of the elite population is in favour of LGBT rights, and hence, this shows that the state is not even going by the popular morality but by its own morality, and if there is any type of morality that can pass the test of compelling state interest, it should be constitutional morality.
REFERENCES
1. https://indiankanoon.org/doc/100472805/
3. https://supremoamicus.org/wp-content/uploads/2022/09/Nandini-Arora-and-A
This article is written by Trisha Jaisawal, a student of United University and an intern under Legal Vidhiya.
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