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Lawrence v/s. Texas - Naz Foundation v/s Govt. of NCT of Delhi Based on Right To Privacy

The cases of Lawrence v. Texas and Naz Foundation v. Govt. of NCT of Delhi are two major and important and very relevant case laws. The case of Lawrence v. Texas was the first case law which identified the rights of the LGBT community by striking down the Texas statute against sodomy and it also implicitly struck down similar laws against sodomy in 13 other states of America[1]. The case of Naz Foundation v. Govt. of NCT of Delhi is also the first case law which said that Sec. 377 of the Indian Penal Code is unconstitutional in nature as this section in a way discriminate the LGBT community of the country[2]. These two cases are so important and really significant as it been appreciated by human rights activists all over the world.

The laws against sodomy which existed in America prior to the case of Lawrence v. Texas and which still exist in India is a type of discriminating laws as it denies certain communities from enjoying certain rights. These laws were reported to be largely misused by police officials in the name of enforcement of law which resulted in a lot of exploitation of these communities. These judgments not only merely struck down the anti sodomy laws but also helped the people of same sex interest to come out to the real world.

Both these cases also in a way spoke about the right to privacy of the LGBT communities to have sex in private as it does not harm the right of any other individual in the society. The right to privacy which is a conditional right is one of the most important and emerging right the scope of this particular right increasing day by day. Through these case laws one will be able to learn and understand the scope and relevance of right to privacy.

Same sex loving man and women who are a small minority in most part of the world. America had anti sodomy laws till the case of Lawrence v. Texas which granted the rights to the LGBT community to be treated equally as the other section of the society. In India these people faces a huge discrimination at social and legal level.

The Delhi High Court said in the case of Naz Foundation that there is need for reading down section 377 of the Indian Penal Code (IPC) which basically talked about the anti sodomy laws as per the Indian Constitution[3].

As stated by Justice Blackman “the Constitution protects people as individuals and not as family unites”[4] this important and significant concept was been understood by both the U.S Supreme Court and the Delhi High Court through these two case laws.

Lawrence v. Texas

On September 17, 1998, John Lawrence a gay was hosting two of his gay acquaintances, Garner and Eubanks at his apartment in Houston. Garner and Eubanks were in a romantic relationship. Eubanks who was drinking heavily, left to purchase a soda. When he came back he saw Lawrence flirting with Garner, he called the police and said that a black person is going crazy with a gun at Lawrence apartments. The police came and entered the apartment with their weapons. The first police officer reported that he saw Lawrence and Garner having anal sex in the bedroom. The second officer reported that he saw them engaged in oral sex. Lawrence did not challenge this acquisition instead he challenged the police from entering into the home.

They were charged for engaging in deviate sexual intercourse with an individual of same sex. They were charged under the statute chapter 21, Sec. 21 of the Texas Penal Code. Both of them was been convicted by the Trial Court and Texas Criminal Court. They went on to an appeal in the Supreme Court of U.S were they argued to dismiss the charges against them according to the equal protection guaranteed to them under the Fourteenth Amendment Bill, by claiming that the law was unconstitutional as it prohibited sodomy between same sex couple but not between heterosexual couples. [5]

The fourteenth Amendment Bill also talked about the protection of private homes from searches without warrant based on a probable caused it also talked about the due process of law in states. On June 26th the Supreme Court struck down the Texas statute by saying that it violated the equal protection guaranteed under Fourteenth Amendment Bill[6]. Thus it also overruled the case of Bowers v. Hardwich were it was held that the anti sodomy laws are constitutionally valid as individuals only have the right to engage in procreative sexual activity[7].

Naz foundation v. Government of NCT of Delhi

Sec. 377 of the IPC which was been introduced during the British Period criminalized the carnal intercourse against the order of the nature. This was interpreted by the present system in such a way that it includes all forms of heterosexual sexual activities[8].

Naz Foundation a nongovernmental organization filled a suit in Delhi High Court in 2001, seeking for a legislation which permits the homosexual adults to have sex with consent. At first its suit was been rejected by the Delhi High Court which refused to consider the petition saying that the petitioner have no right to come before the court on this matter. However the Supreme Court by hearing the appeal from the Naz Foundation said that they have the right to file a Public Interest Litigation in this Case and sent it back to the Delhi High Court[9].

The judgment of this case was been delivered by a two judge bench of the Delhi High Court which said that criminalization of consensual sex between homosexual sex between adults is violation of Art.14 and Art.15 of the Indian Constitution which talks about the right to equality and right against discrimination respectively[10].

The court further noted that the right to life under Art.21 includes the right to health and found that Sec.377 hinder the prevention of HIV. However the court did not struck the Sec.377 as a whole it only said that criminalization of consensual sexual acts of adults in private is unconstitutional. It kept the provision intact as it can applied to non coessential sex and sexual intercourse with minors.

Lawrence v. Texas and Naz Foundation v. Govt. of NCT of Delhi: on right to privacy
The cases of Lawrence v. Texas and Naz Foundation V. Govt of NCT of Delhi raises some of the most relevant and important human rights issues like the right to privacy and right against discrimination. The judgments of these cases show the respect that at least few among the people of these two countries give to a minority community. Which can even been interpreted as a success of democracy in these countries[11]. In these days about 58% of the member states of United Nations have decriminalized the offence of same sex[12].

The laws against sodomy all over the world not only talk about the concept of anal sex alone, but it talks about all the homosexuals in general. Now these laws are used to equate homosexuality with rape and similar offences. These laws thus deal with the dignity of a minority community all over the world. Decriminalization of this offence will restore the dignity of these individuals and will allow them to come out of the shadow in which they are living now.[13]

Most of the anti sodomy laws that existed earlier and that even exist today like Sec.377 of the Indian Penal Code creates a large amount of fear among the LGBT communities in those respective countries. It also causes a clear infringement of their private right and thus these laws had destroyed the dignity and liberty of homosexuals.[14] The objective of all of the anti sodomy laws are not clear and these are unsubstantiated. These laws had its origin from the old testament of Bible followed by Christians, in the book of Leviticus chapter 20 verses 13 says to provide death penalty to gays and lesbians in the society. It also prescribes death penalty for several other things according to the knowledge that prevailed during that time[15]. Later these laws got adapted into various legal systems based on the presumption of shared public morality[16].

In the case of Noshirwan v. Emperor, by seeing two young men walking into the house of one of them, Solomon their neighbor peeped through the window and noticed that they were attempting to commit sodomy. He forcefully took them to the police station.[17] This case is the clear example which shows how the society does tries to interfere with the basic right of privacy of the LGBT community. In the case of Lawrence v. Texas there was a clear infringement of Fourteenth Amendment Act as it guaranteed the right against house search without any warrant based on proper reasons. This clearly denies them the basic rights of a citizen and the police and the authorities in these cases instead try to uphold the so called morals of the society. Even though they are the minorities in most of the countries they do have some of the basic rights to enjoy their life like other according to the constitution of their respective countries.

These laws of anti sodomy are not only used to arrest men who are actually caught in this act. But it is also used against those people who even have the appearance of being homosexual and therefore likely to commit this particular act[18]. This was one of the most important concern which was been raised by the Naz Foundation in the case of 2009. These laws are been used arbitrarily by the police authorities to harass and exploit these minorities[19].

Thus in most of the arrest based on the laws of anti sodomy there is a clear invasion into the bedroom of these LGBT people which cannot be justified in any sense. As a famous positivist school philosopher Hart says “right to undistributed performance of private consenting acts is more important than the immorality of that particular act. Before the cases of Lawrence v. Texas and Naz foundation v. Govt of NCT of Delhi both Indian and American courts where not in a position to recognize the right of these minority communities to enjoy a space of privacy however before these case laws the courts of both these countries have justified unnecessary and unjust police access to these peoples home in the name of enforcing these laws[20].

It should be made sure that there are reasonable grounds of suspicion that certain Homosexual activity is taking place at a particular place before entering into the houses of the people without any clear and justified reason[21]. It is a very usual practice followed by the courts all over the world to strike such unconstitutional and arbitrary discriminatory laws by looking into how people are affected on the operation of that particular. The classic cases of Bowers v. Hardwick and Lawrence v. Texas was the two major American case laws in which prosecution of coessential adult homosexual sex was been carried out. In both these cases we can see in the facts that a policeman breaks into the house of an individual looking for something else and find two men engaging in homosexual activity.[22]

There are also several Indian case laws in which the infringement of right to person or privacy was been clearly infringed. In July 2001, the police of city of Lucknow arrested four NGO activists for condom distribution under section 377 of the IPC. Eventhough there was no ground for sodomy their bail was been rejected on the ground that they are a curse to the society as they were encouraging homosexuality. It was only after a 45 days of protest the activists were freed of charges under Sec.377.

In the second incident on 2006 the Lucknow police arrested four men under Sec.377 for allegedly having sex in a public park. However according to the investigation conducted by several news agencies it was been found that the police have arrested these people from their homes, having learned that they were gay. Thus these are the laws created without any purpose and they are also been largely misused by the police and protectors of morality in the society. The initial principle which can be used to protect the right to privacy is to let someone to be alone[23]. If one is let alone ones right to privacy will be secure[24].

It was the lawyers in U.S that started and contributed for the development of political idea of right to privacy. Even though it is a conditional right the government could not pass any arbitrary laws which deny the right to privacy to a particular community as it is a form of discrimination.[25] Legislatures and the governments of most of the countries are not interested in discussing any of these laws; the first country to decriminalize this act was the United States of America[26]. Later large number of countries followed its path and it granted rights to the LGBT community in their respective places.

The individuals should have equal and sufficient capacity to make free and meaningful individual choices when an authority denies them this right it just shows that they are not considering or respecting these people as free individuals. By criminalizing acts like homosexuality it not only expresses the mere disapproval of the society but also creates a large group of criminals in the country. Thus it is antithetical to the principle of individual autonomy. [27] The banning of these laws will reduce the number of these people with criminal cases in a country to a large extend.

The countries which haven’t banned these laws must realize that these type of laws have no jurisprudential basis and is been abolished by International Convention on Civil and Political Rights and in many countries like that of Australia, South Africa and in many more countries[28]. Thus most of the world has now realized the need for the protection and realization of personal relationship that exist between two individuals. Being the members of civilized modern democratic world it’s our duty to protect the basic rights of minority communities like that of right to privacy of LGBT communities.

The anti sodomy laws all over the world does not have any jurisprudential basis, it denies the right to privacy and discriminate these minority communities by denying them some of the basic rights which are been enjoyed by majority section of the society in this world. These laws could not be any longer justified and it contradicts the basic principles of the democracy that is been accepted as the best form of government by the international society.

The right to privacy is very essential for the dignity and liberty of an individual. Until and unless an individual does not cause any harm to the society, he or she should not be denied any of the basic rights. The judgment of the case of Lawrence v. Texas and Naz Foundation case of 2009 are two major judgments which went beyond the four corners of law and interpreted the rights of LGBT community at a wider sense by placing an individual’s right to freedom over the principles of morality placed by a society. These case laws also recognized that the laws should not be used to discriminate any group either through denying any right or by imposing any punishment.

Both the American Supreme Court and Delhi High Court understood the very spirit of their respective constitution. Constitution of both these countries and major international treaties has recognized the very importance and value of right of privacy of LGBT communities. Thus these case laws remain and continue to inspire the other democratic countries all over the world to grant their citizens these rights and uplift the principles and value of democracy.

[1] Lawrence v. Texas, 539 U.S. 558(2003).
[2] Naz Foundation v. Govt. of NCT of Delhi, 160 DLT 277 (2009).
[3] Supra note 2
[4]Bowers v. Hardwick, 478 U.S 186(1986)
[5] Supra note 1
[6] Id at 5
[7] Supra note 4
[8] Robert Wintemute,Same-Sex Love and Indian Penal Code 377:An Important Human Rights Issue For India (Jun 25, 2014, 12:52 PM),
[9] Sheela Bhatt (Aug 26,2014, 11:02 AM), "Gay Rights is matter of Public Interest: SC"
[10] Supra note 2
[11] Supra note 8
[12] Id at 11
[13] ALOK GUPTA, Section 377 and the Dignity of Indian Homosexuals, (Aug 25, 2014, 1:00 PM),
[14] Id at 11
[15] Supra note 8
[16] Supra note 8
[17] Supra note 13
[18] Supra note 13
[19] Supra note 8
[20] Supra note 13
[21] Supra note 13
[22] Supra note 13
[23] H. J. McCloskey ,Privacy and the Right to Privacy, (Aug 25, 2014, 12:00PM),
[24] Id at 23
[25] Id at 23
[26] Supra note 8
[27] Supra note 13
[28] Supra note 23

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