Naz Foundation v/s
Govt of Delhi & Ors
- Regardless of whether Section 377 infringed fundamental rights ensured under the
Constitution of India.
On 02 July, 2009
High Court of Delhi
Equivalent citations: 160 Delhi Law Times 277
Bench: Chief Justice Ajit,
Prakash Shah (J),
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
Section 377 named "Of Unnatural Offenses" 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 imprisoned for either. Description for term
which may loosen up to ten years, and will moreover be liable to 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 it's 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.
The petitioner, the Naz Foundation, presented that the harassment and
discrimination of the gay and transgender community in India coming about
because of the proceeded with presence of Section 377 of the Indian Penal Code [IPC]
influenced the rights of that community ensured under the Constitution,
including the right to equality, the right to non-discrimination, the right to
privacy, right to life and liberty, and also the right to health.
that the Constitution secures the right to privacy (which isn't explicitly
referenced) under the right to life and liberty revered in Article 21. Besides,
they presented that the privilege to non-discrimination on the grounds of sex in
Article 15 ought not be peruse prohibitively however ought to incorporate
They likewise fought that the criminalisation of
homosexual activity by Section 377 segregated on the grounds of sexual
orientation and is accordingly in opposition to the Constitutional guarantee to
non-discrimination under Article 15. At last, the petitioner set forward that
courts in other jurisdictions have struck down comparable provisions identifying
with sexual orientation because they violate the rights to privacy, dignity and
Two Government offices reacted to the request, be that as it may, as expressed
by the High Court, they presented 'completely contradictory affidavits'
- Ministry Of Home Affairs (MHA)
The MHA argued in favour of retention of Section 377 on a few grounds. In the
first place, that it accommodated the arraignment of people for the sexual abuse
of children. Second, that it filled a hole in the rape laws. Third, that
whenever eliminated it would accommodate 'conduits of delinquent conduct' which
would not be in the public interest. At last MHA presented, that Indian culture
doesn't ethically excuse such conduct and law ought to reflect cultural
qualities like these.
For MHA, the Additional Solicitor General [ASG] submitted, because of cases of a
right to privacy, that such a right isn't supreme and can be limited where there
is a convincing state interest in doing as such, like public decency and
morality. Besides, he contended that Section 377 doesn't discriminate on the
grounds of sex since it is sex unbiased.
- National Aids Control Organization (Naco) And The Ministry Of
Health And Family Welfare
NACO responded for the Ministry of Health and presented proof on the
side of the petitioner's submission that the proceeded presence of
Section 377 is counter-gainful to the endeavours of HIV/AIDS
counteraction and treatment. NACO contended for the evacuation of
the part expressing that it makes an enormous number of individuals
in high danger classes comparable to HIV/AIDS hesitant to approach
because of a dread of law authorization organizations, and that in
driving homosexuality underground it increments dangerous conduct
like unprotected sex.
- 'Voices Against Section 377 IPC'
An alliance of 12 NGOs submitted proof additionally on the side of
the petitioner's arguments which show the high number of
infringements of human rights endured by the LGBT community in India
as a result of Section 377.
In this case, the court understood the true meaning of 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
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 homosexual
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
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 Section377 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
The High (Court) initially emphasized the test for any law which meddles in
close to personal liberty, as set out in Maneka Gandhi vs. Union of India (1978)
1 SCC 248: that
- There should be a procedure;
- that procedure should be tried against at least one of the fundamental rights presented under Article 19 which are applicable;
- it is additionally susceptible to be tested against Article 14, and should be right, just, reasonable and not discretionary.
Right To Privacy
The Court noticed that the Indian Constitution doesn't contain an unequivocal
arrangement corresponding to the right to privacy, anyway the Supreme Court has
interpreted a right based on Article 19 that the Court noticed that the Indian
Constitution doesn't contain an unequivocal arrangement corresponding to the
right to privacy protecting freedom of expression and movement, and Article 21
protecting the right to life and liberty.
The Court made broad reference to
United States law on the right to privacy as read into the Constitution,
including Roe v. Swim 41 US 113 (1973) and Planned Parenthood of South-eastern
Pa v. Casey 505 US 833 (1992). It at that point proceeded to consider the
improvement of this right in India including the case of Kharak Singh v. The
State of U.P.
(1964) 1 SCR 332, which followed the right to privacy in India to
right to 'life' in Article 21 of the Constitution.
Likewise, the Court alluded to specific rights of persons of various sexual
orientation in this regard by reference to the Yogyakarta Principles on the
Application of Human Rights Law in Relation to Sexual Orientation and Gender
Identity, which the Court noted states the rights to equivalent enjoyment of
rights of all persons paying little heed to their sexual orientation. Checking
out these arrangements, the Court inferred that Section 377 denies the dignity
of such individuals, condemns their character and abuses their entitlement to
security which is ensured inside the ambit of Article 21 of the Constitution.
making this discovering the Court excused the contentions of the MHA that the
decriminalization of homosexuality will prompt the expansion of HIV/AIDS on the
premise that there was no clinical proof to support this contention. The Court
likewise noticed that this case negated the contentions made by NACO and the
Ministry of Health and Family Welfare.
As for the public morality contentions set forward by the respondents the Court,
referring to the European Court of Human Rights jurisprudence of Dudgeon v. The
United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), and Norris v. Republic of
Ireland, 142 Eur. Ct. H.R. (ser. A) (1988), expressed that simple public
dissatisfaction or popular morality is certifiably not an adequate reason for
setting such limitations on the enjoyment of fundamental rights. The Court
stated that the only morality which matters is Constitutional morality.
The Court determined that the Constitution of India protects and promotes
diversity and guarantees an egalitarian society where freedom is no longer a
privilege. The Court decided that criminalisation of homosexuality contradicts
that Constitutional morality.
Article 14 And Equality
The Court repeated the test set by Article 14 that any qualification or order be
founded on a clear differentia which has a rational relation to the objective
sought and is not unfair or then again unjustifiable. Section 377, the Court
said, doesn't recognize between public and private acts, or among consensual and
non-consensual acts hence doesn't consider important factors like age, assent
and the nature of the act or absence of harm. The Court expressed that such
criminalisation without proof of mischief appeared to be self-assertive and
In considering the legal principles forced by Article 14 of the Constitution the
Court took into account the Declaration of Principles of Equality "as current
international understanding of Principles on Equality". Drawing on Principles 1
(right to equality), 2 (equivalent treatment) and 5 (definition of
discrimination) the Court underscored the need to incorporate sexual orientation
among secured grounds of discrimination and construct circuitous discrimination
and harassment into any consideration into right to equality.
Accordingly, managing the contention that Section 377 was neutral, as presented
by the MHA, the Court expressed that albeit the arrangement all over is unbiased
and targets acts as opposed to people, in its operation it unfairly targets a
particular community, having the outcome that all gay men are viewed as
criminal. This droves the Court to infer that Section 377 discriminated against
a specific community infringing upon Article 14 of the Constitution.
Article 15 was portrayed by the Court as a specific use of the general right to
equality under Article 14. The Court considered the petitioner's contention that
the reference to 'sex' in Article 15 ought to be deciphered as remembering
sexual orientation for the premise that discrimination on the grounds of the
latter depends on stereotypes of conduct based on sex. The Court itself alluded
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 Tasmanian Criminal Code which
criminalised sexual acts between men, was viewed as an infringement of Article 2
of the International Covenant on Civil and Political Rights, where a reference
to 'sex' was taken as counting sexual orientation.
On that premise the Court expressed that they hold that sexual orientation is a
ground analogous from sex and that discrimination on the basis of sexual
orientation isn't allowed by Article 15. Further, Article 15(2) fuses the
thought of level use of rights. As such, it even precludes discrimination of one
citizen by another in issue of admittance to public spaces. In our view,
discrimination on the ground of sexual orientation is not permitted even on the
horizontal application of the right revered under Article 15.
The Court thus found that Section 377 was unconstitutional based on Article 15
of the Constitution. In its decision, the Court alluded to the confidence in
comprehensiveness which is instilled in the Indian Constitution and clarified
that discrimination was the reverse of equality and that it is the
identification of equality which will further the dignity of every individual.
In the light of its discoveries on the infringement of Articles 21, 14 and 15,
the Court discovered it superfluous to manage the issue of infringement of
Article 19 of the Constitution. In aggregate, the Court proclaimed that Section
377 of the Indian Penal Code, to the extent that it condemns consensual sexual
acts of adults in private, violates Articles 21, 14 and 15 of the Constitution.
- Constitution Of India
- Article 14 (Equality before law);
- Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth);
- Article 19 (Protection of certain rights regarding freedom of speech, etc.);
- Article 21 (Protection of life and personal liberty).
- Indian Penal Code 1861
- Section 377.
- Case Law: Indian
- Maneka Gandhi v. Union of India (1978) 1 SCC 248;
- Kharak Singh v. The State of U.P. (1964) 1 SCR 332;
- State of Madras v. V.G.Row AIR 1952 SC 196.2
- Case Law: International
- Roe v. Wade 41 US 113 (1973);
- Planned Parenthood of South-eastern Pa v. Casey 505 US 833 (1992);
- Dudgeon v. The United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981);
- Norris v. Republic of Ireland, 142 Eur. Ct. H.R. (ser. A) (1988);
- Toonen v. Australia, (No.488/1992 CCPR/C/ 50/D/488/1992, March 31, 1994).
- Other International Standards
- Declaration of Principles of Equality;
- Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity.