71

Naz Foundation v. Government of NCT

of Delhi and Others

ERT Case Note

On 2 July 2009, the High Court of Delhi ended The Naz Foundation submitted that Section
over a century of discriminatory treatment 377 violated the fundamental rights guaran-
against people because of their sexual ori- teed under Articles 14, 15, 19 and 21 of the
entation by declaring the application of sig- Constitution of India. It brought the action
nificant elements of Section 377 of the India in the public interest on the grounds that
Penal Code (IPC) unconstitutional. Section its work on combating the spread of HIV/
377 is a relic of the British legal system and AIDS was being hampered by discrimination
in effect it criminalised same-sex conduct. experienced by the gay community as a re-
This case note sets out the facts of the case, sult of Section 377. This discrimination, the
examines the judicial reasoning behind the petitioners submitted, resulted in the denial
judgment and comments on some of the im- of fundamental human rights, abuse, harass-
plications of the decision. ment and assault by public authorities, thus
driving the gay community underground and
Facts subjecting them to greater vulnerability in
violation of their fundamental rights.
Naz Foundation v. Government of NCT of Delhi
and Others WP(C) No.7455/2001 concerned The Legal Arguments Submitted
a writ petition (a public interest action taken
before the court) brought by the Naz foun- The Naz Foundation
dation, an NGO working with HIV/AIDS suf-
ferers, which argued that Section 377 of the The Naz Foundation submitted that the ha-
Indian Penal Code was unconstitutional. Sec- rassment and discrimination of the gay and
tion 377 entitled “Of Unnatural Offences” has transgender community in India resulting
been on the statute books since 1861 and has from the continued existence of Section 377
effectively been interpreted as criminalising affected the rights of that community which
consensual sexual acts between persons of were guaranteed under the Constitution, in-
the same sex. Section 377 states: cluding the right to equality, the right to non-
discrimination, the right to privacy, the right
“Whoever voluntarily has carnal intercourse to life and liberty, and the right to health.
against the order of nature with any man,
woman or animal, shall be punished with They argued that the Constitution protects
[imprisonment for life], or with imprison- the right to privacy (which is not expressly
ment of either description for term which mentioned) under the right to life and liberty
may extend to ten years, and shall also be li- enshrined in Article 21. Furthermore, they
able to fine.” submitted that the right to non-discrimina-

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tion on the ground of sex in Article 15 should ment. They argued for the removal of Sec-
not be read restrictively but should include tion 377 stating that it makes a large number
“sexual orientation”. They also contended of people in high risk categories in relation
that the criminalisation of homosexual ac- to HIV/AIDS reluctant to come forward for
tivity by Section 377 discriminated on the treatment due to a fear of law enforcement
grounds of sexual orientation and was there- agencies, and that in driving homosexuality
fore contrary to the Constitutional guarantee underground it increases risky behaviour
of non-discrimination under Article 15. such as unprotected sex.

Finally, the Naz foundation stressed that The Judgment

courts in other jurisdictions have struck
down comparable provisions relating to In a decision that has been applauded not
sexual orientation on the grounds that they only as a landmark victory for equality and
violated the rights to privacy, dignity and social justice but also in terms of its robust
equality. legal reasoning the High Court of Delhi con-
cluded that “Section 377 IPC, insofar as it
The Government of India criminalizes consensual sexual acts of adults
in private, is violative of Articles 21, 14 and
Both the Ministry of Home Affairs (MHA) 15 of the Constitution”.
and the Ministry of Health and Family Wel-
fare submitted legal opinions in respect to While many elements of the decision will
the writ petition. Interestingly, however, the be far-reaching for LGBT rights in India, the
two ministries came down on opposite sides High Court’s emphasis on the right to equal-
of the legal argument offering “completely ity (Article 14 and 15 of the Indian Constitu-
contradictory affidavits”. The MHA, on one tion) is particularly praiseworthy, for at least
hand, argued for the retention of Section 377 two reasons. First, the judgment must be
on several grounds. First, that it provided for praised for its completeness. In undertaking
the prosecution of individuals for the sexual a comprehensive and detailed analysis of the
abuse of children. Second, that it filled a gap law of India in respect to discrimination on
in the rape laws. Third, that if removed it the grounds of sexual orientation, the High
would provide for “flood gates of delinquent Court has left little margin for the decision
behaviour” which would not be in the public to be overturned on the basis of misinterpre-
interest. Finally, MHA submitted that Indian tation or misapplication of the law. Second,
society does not morally condone such be- the High Court’s reference to and application
haviour and law should reflect societal val- of the highest international standards on
ues such as these. equality to the Indian context set a positive
example which should inspire judicial deci-
By contrast, the Ministry of Health and Fam- sion-making in countries which presently
ily Welfare (in conjunction with the National criminalise same-sex conduct.
Aids Control Organisation) presented evi-
dence in support of the Naz Foundation’s The High Court began its Article 14 analysis
submission – that the continued existence by setting out that any distinction or classi-
of Section 377 is counter-productive to the fication must be based on an intelligible dif-
efforts of HIV/AIDS prevention and treat- ferentia which has a rational relation to the

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objective sought and must not be unfair or Court referred to the Human Rights Com-
unjust. Section 377, the Court said, does not mittee’s decision in Toonen v. Australia,
distinguish between public and private acts, (No.488/1992, CCPR/C/50/D/488/1992,
or between consensual and non-consensual March 31, 1994) in which the criminalisation
acts, therefore does not take into account rel- of sexual acts between men was considered
evant factors such as age, consent and the na- a violation of Article 2 of the International
ture of the act or absence of harm. Thus, such Covenant on Civil and Political Rights, where
criminalisation in the absence of evidence of a reference to "sex" was taken as including
harm seemed arbitrary and unreasonable. sexual orientation. On the basis of the analy-
sis of Indian and international human rights
In considering the legal principles imposed jurisprudence the High Court declared that
by Article 14 of the Constitution, the Court Section 377 was also unconstitutional on the
took into account the Equal Rights Trust’s basis of Article 15:
Declaration of Principles on Equality as “the
current international understanding of Prin- “We hold that sexual orientation is
ciples on Equality”. Citing in full Principles 1 a ground analogous to sex and that discrimi-
(right to equality), 2 (equal treatment) and 5 nation on the basis of sexual orientation is
(definition of discrimination) of the Declara- not permitted by Article 15. Further, Article
tion, together with landmark jurisprudence 15(2) incorporates the notion of horizontal
from the Canadian, South African and United application of rights. In other words, it even
States courts, the High Court emphasised prohibits discrimination of one citizen by an-
that there was a need to include sexual orien- other in matters of access to public spaces.
tation among protected grounds of discrimi- In our view, discrimination on the ground of
nation and build indirect discrimination and sexual orientation is impermissible even on
harassment into any consideration of the the horizontal application of the right en-
right to equality. shrined under Article 15.”

Thus, dealing with the argument that Section Summing up its judgment, the High Court
377 was neutral, as submitted by the MHA, stressed the importance of upholding the
the High Court stated that although the pro- values of equality, tolerance and inclusive-
vision on its face was neutral and targeted ness in Indian society by stating:
acts rather than persons, in its operation it
unfairly targeted a particular community, “If there is one constitutional tenet
having the result that all gay men were con- that can be said to be underlying theme of
sidered criminal and it therefore violated Ar- the Indian Constitution, it is that of 'inclusive-
ticle 14 of the Constitution. ness'. This Court believes that Indian Consti-
tution reflects this value deeply ingrained in
Moving on to consider whether the refer- Indian society, nurtured over several genera-
ence to “sex” in Article 15 of the Constitution tions. The inclusiveness that Indian society
should be interpreted as including sexual traditionally displayed, literally in every as-
orientation on the basis that discrimination pect of life, is manifest in recognising a role
on the grounds of the latter is based on ste- in society for everyone. Those perceived by
reotypes of conduct on the basis of sex – as the majority as 'deviants' or 'different' are
was argued by the Naz Foundation, the High not on that score excluded or ostracised.”

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74

Some Implications It is expected that it will be many years be-

fore the decision is handed down by the Su-
For the moment, the decision of the High preme Court. Yet it is noteworthy that the
Court of Delhi has invalidated the criminali- level of criminal conviction over the lifespan
sation of consensual same-sex conduct be- of Section 377 was low. In practice the true
tween adults across all of India. As the writ danger of Section 377 was that it permitted
petition involved a constitutional matter, the and promoted the harassment, victimisation
judgment applies throughout India. How- and persecution of LGBT people by law en-
ever, the judgment is restricted to adults. forcement and other officials, to the extent
Therefore, “Section 377 (…) will continue to that LGBT people have suffered extreme vio-
govern non-consensual penile non-vaginal lations of their human rights and have been
sex and penile non-vaginal sex involving mi- unable to live their lives in equal dignity with
nors.” others in Indian society. Such harassment
and discrimination will not automatically go
The Central government has reportedly de- away. LGBT people will still face harassment
cided not to contest the decision. At the same and discrimination from law enforcement of-
time, according to author Ratna Kapur, ficials and wider society, albeit from now on
these will be clearly in violation of the law.
“at least nine other petitions have Furthermore, it will take time for the judg-
been filed in the Supreme Court, the most fa- ment to “bed-in” and activists have already
mous being that of Baba Ramdev, the brand reported that the message that homosexu-
ambassador for Ayurveda and Pranayama ality is no longer a criminal offense has not
yoga. The challenges are based on arguments reached some law enforcement agencies.
that range from assertions that homosexual- Consequently, there is an urgent need for
ity is an illness for which there is a cure to awareness-raising among both LGBT people
expressions of anxiety over the crisis of cul- and law enforcement agencies, to reinforce
tural identity produced by the decision. Most the impact of the decision and inform LGBT
of the challenges allege that homosexuality is people about their new legal rights and pub-
associated with rampant promiscuity of the lic officials about their concurrent obliga-
West, which centres hedonism and pleasure tions.
that are not apparently a part of our genetic
cultural make-up."1 Case note prepared by Jarlath Clifford

1
Kapur, R., "Out of the Colonial Closet, but Still Thinking ‘Inside the Box’: Regulating ‘Perversion’ and the Role of
Tolerance in De-radicalising the Rights Claims of Sexual Subalterns”, NUJS Law Review, Vol. II, No. 3, July-September
2009, p. 382.

The Equal Rights Review, Vol. Four (2009)