Naz Foundation v. Government of NCT of Delhi (2009 Del HC)

By Saumya Sudarshini

Introduction

Nowadays, discussions surrounding homosexuality and homosexual relationships have become more normalized. However, for same-sex lovers, who remain a small minority in most parts of the world, criticism and discrimination at the hands of society have not come to an end. Equality for members of the LGBTQ+ community is still seen as a challenging issue. Gay, lesbian, and transgender persons, among others, are yet to receive equal treatment as other members of society. These people are trying hard to obtain the same legal rights in society. Significant effort is being put in to find a solution to this problem, ranging from social movements to judicial pronouncements.

For the first time, a writ petition was filed by the Naz Foundation (a Delhi-based NGO founded in 1994) as a Public Interest Litigation (PIL) to challenge the constitutional validity of Section 377 of the Indian Penal Code,1860 (IPC). The relevant provision talked about the criminalization of and punishment for unnatural sexual activities, including consensual sexual acts between adults of the same sex.

The challenge was based on the argument that Section 377 of the IPC is in violation of Articles 14, 15, 19, and 21 of the Indian Constitution. The Constitution guarantees some basic fundamental rights like the Right to life and personal liberty, the Right to live freely according to one’s will, etc., to each and every citizen of the country. It was pointed out that Section 377 of the IPC criminalizes private sexual acts between consenting adults. To narrow down their argument, the petitioners have proposed that Section 377 should exclusively pertain to instances of non-consensual penile non-vaginal sex and cases involving minors engaged in penile non-vaginal sex.

Facts of the Case

In this case, an Indian non-governmental organization (NGO) working on HIV/AIDS issues, Naz Foundation, initiated a writ petition in a matter of public interest, asserting the unconstitutionality of Section 377 of the Indian Penal Code. This section, titled “Unnatural Offences,” has been effectively interpreted as making consensual sexual activities between individuals of the same gender a criminal offence. Section 377 reads as follows:

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The Naz Foundation and others contended that this interpretation of Section 377 violated the fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Indian Constitution. The Foundation brought this legal action in the public interest, arguing that its efforts to combat the spread of HIV/AIDS were hindered by widespread discrimination against the LGBTQ+ community. According to the petitioners, this discrimination resulted in the denial of essential human rights, as well as instances of abuse, harassment, and assault by public authorities. Consequently, it forced the members of LGBTQ+ community to live in secrecy and made them increasingly vulnerable, all of which constituted violations of their fundamental rights.

Issues Raised before the Court

1. Should the contested provision be construed in a manner that removes the criminalization of consensual non-vaginal sexual activity among adults?
2. Are the fundamental rights of equality, life, liberty, privacy, and dignity, as outlined in Articles 14, 15, and 21 of the Constitution, infringed upon by Section 377 of the Indian Penal Code?
3. Does the decriminalization of the challenged provision in regard to consensual sexual relationships conflict with societal attitudes and public moral standards?

Arguments

Petitioner

• The Naz Foundation, a non-governmental organization that filed the petition, argued that the continued implementation of Section 377 has resulted in harassment and prejudice against members of the gay and transgender community in India. This has had a detrimental effect on the rights of members of that community, although these rights were guaranteed to them by the Indian Constitution. This includes the rights to equality, non-discrimination, privacy, life and liberty, and health.
• They argued that the Constitution of India protects the personal rights of the citizens, provided under Right to life and personal liberty under Article 21 of the Indian Constitution.
• They further put forth the argument that “sexual orientation” should be included as part of the Indian Constitution’s Article 15’s prohibition against discrimination based on sex, rather than being interpreted narrowly and substantially.
• They also argued that the criminalization of homosexual behavior under Section 377 of the IPC violated the promise under Article 15 of the Indian Constitution regarding protection against discrimination because it was discriminatory on the basis of sexual orientation.
• Lastly, the Naz Foundation stated that similar restrictions targeting sexual orientation have been overturned and removed by courts in other regions and jurisdictions on the grounds that they infringed the rights to privacy, dignity, and equality. Additionally, they demonstrated that when there is no overriding compelling state interest, the government cannot make private sexual behavior illegal.

Respondent

• The Respondent argued that both the Ministry of Home Affairs (MHA) and the Ministry of Health and Family Welfare had submitted their juristic opinions in respect to the writ petition. However, surprisingly, the two ministries opposed each other in terms of the permissible arguments, submitting two completely contrasting affidavits.
• On one hand, the MHA made many arguments in favor of retaining Section 377 of the IPC. Firstly, it argued that the provision allowed for criminal prosecution of those who sexually abuse minors. It also plugged a hole in the rape legislation. Secondly, eliminating it would open the “floodgates of criminal conduct,” which is obviously not in the optimal interest of the general public. Finally, the MHA argued that such behavior is not morally acceptable in Indian culture and that the legislation should instead reflect the accepted cultural norms.
• On the other hand, the Naz Foundation argued that the existence of section 377 of the IPC is unfavorable to efforts to prevent and treat HIV/AIDS, and the Ministry of Health and Family Welfare, which was associated with the National Aids Control Organization, submitted evidence in support of that statement.
• They maintained that Section 377 of the IPC should be invalidated since it discourages many persons who fall into high-risk categories for HIV/AIDS. They hesitate to seek treatment or are afraid of law enforcement, which prevents them from doing so. Furthermore, pushing homosexuality underground, encourages more promiscuous behavior involving unprotected sex.

Judgment

In a revolutionary verdict, the Delhi High Court declared that Section 377 violates the Constitution precisely because it makes adult consenting to sexual activities privately illegal.

1. The Court did not invalidate Section 377 in a whole. The section was determined to be illegal as it violates Articles 14, 15, and 21 and criminalizes adults who engage in consensual sexual conduct in public. Insofar as it involves non-consensual non-vaginal sex and sex with minors, the court upholds the provision. According to the court, the ruling would remain in effect until Parliament decided to change the statute.
2. The High court observed that any distinction or classification must be based on an understandable differentia that has a rational relationship to the purpose sought and must not be unfair or unjust.
3. The Court argued that because Section 377 does not distinguish between private and public activities or between consensual and non-consensual acts, it ignores important considerations, like age, consent, the nature of the conduct, and the presence or absence of injury. Therefore, this prosecution seemed arbitrary and irrational in the absence of proof of harm.
4. The High Court said that the Human Rights Committee found that the criminalization of sexual acts between men violated Article 2 of the International Covenant on Civil and Political Rights in Toonen v. Australia. In that case, the term “sex” was interpreted to include sexual orientation. The High Court ruled that Section 377 was also unconstitutional on the basis of Article 15 after analyzing Indian and international human rights law: “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. Furthermore, the idea of rights being applied horizontally is included in Article 15(2).
5. The High Court observed that the right amount of privacy permits people to form connections without intervention from the outside world or the government. A person can achieve fulfillment, increase self-esteem, create the relationships they want, and achieve any righteous aims they may have by exercising their autonomy. The right to privacy and the right to a dignified life are both acknowledged as elements of Article 21 in the Indian Constitution. Section 377 IPC breaches Article 21 of the Constitution by denying a person’s dignity and criminalizing their fundamental identity based simply on their sexual orientation. As it is, Section 377 IPC denies a gay person an implicit right to full personhood, which is implicit in the Article 21 of the constitution.
6. The High Court observed that access to HIV/AIDS prevention resources or healthcare services for MSM is restricted by Section 377 IPC. Gays and MSM are forced into underground communities by Section 377 IPC, making them exposed to police harassment and preventing them from accessing resources for HIV/AIDS prevention and care.
7. The High Court further pointed out that “the submission of ASG that Section 377 IPC helps in putting a brake on the spread of AIDS and that if consensual same-sex acts between adults were to be decriminalized, it would erode the effect of public health services by fostering the spread of AIDS is completely unfounded since it is based on incorrect and wrong notions” is completely unfounded because it is based on false and incorrect assumptions. One of several causes of HIV transmission is sexual activity, and both homosexual and heterosexual behavior can spread the disease. No recognized scientific or medical organization, nor any other source of information, has produced any evidence demonstrating a causal link between the decriminalization of homosexuality and the spread of HIV/AIDS.
8. In regard to the case’s last argument, the Court observed that popular morality or general condemnation of particular actions are insufficient justifications for restricting the fundamental rights provided under Article 21. Popular morality is based on moving and evolving ideas of right and evil, as opposed to a constitutional morality formed from constitutional values. It must be “constitutional” morality and not popular morality if any kind of “morality” can stand up to the test of compelling state interest. Diversity is acknowledged, safeguarded, and celebrated by the Indian Constitution. It would be morally wrong to stigmatize or criminalize homosexuals only because of their sexual orientation.

Concepts used in the Case

• Sec 377 of IPC: It declares “against the order of nature” venereal activities illegal. The implementation of Section 377 to consensual homosexual activities between adults was finally ruled to be unconstitutional, “irrational, indefensible, and manifestly arbitrary” by the Supreme Court of India on September 6, 2018, but Section 377 still remains in effect regarding sex with minors, non-consensual sexual acts, and bestiality.
• Article 14 of the Indian Constitution: Article 14 of the Indian Constitution assures all citizens equal protection under the law and equality before the law. This means treating persons in comparable situations equally while also submitting everyone to the authority of the law. The latter permits the State to categorize people for legal purposes, but only if there is a justifiable basis for doing so. That implies that the classification should not be arbitrary and may be supported by a method of understandable differentiation among those who sought to be classified, in addition to those who have a rational relevance to the goal of the classification.
• Article 15 of the Indian Constitution: The Indian Constitution’s Article 15 prohibits discrimination on the basis of race, gender, caste, religion, or place of birth, among other things. Regarding free admission to public entertainment venues or destinations that are partially or entirely supported by public funds, this right can always be enforced both against the State and against private parties. The Scheduled Castes and Scheduled Tribes, as well as other socially and educationally deprived groups of citizens, are not prohibited from receiving special government assistance under this article. Since the aforementioned groups of persons are thought to be underserved and in need of particular protection, an exception has been provided.
• Article 19 of the Indian Constitution: Six freedoms that are included within the category of civil rights are merely guaranteed to Indian citizens under Article 19 of the country’s constitution. The six autonomies include the right to free speech and expression, the right to peaceful assembly without the use of force, the right to association, the right to move freely within the country’s boundaries, the right to live and establish one’s self in any location within India, and the right to engage in any occupation. The State may place reasonable restrictions on any of the aforementioned liberties, which are outlined in Article 19 itself. These restrictions may be imposed for a variety of reasons, including national security, public order, decency and morality, contempt of court, incitement to commit crimes and defamation, depending on the freedom that is being restricted. Additionally, the State has the authority to nationalize any business, industry, or service without the consent of the people in order to advance the interests of the general populace.
• Article 21 of the Indian constitution: The fundamental rights are seen to be represented in article 21 of the Indian Constitution. According to Article 21, “No person shall be deprived of his life or personal liberty except in accordance with the procedure stipulated by law.” Our right to life, which includes all the elements of life that help make a man’s life meaningful, full, and worthwhile, is fundamental to our own existence and without which we cannot survive as humans. It is the only article in our nation’s Constitution that has been interpreted as broadly as possible. Too many rights are protected, encouraged, and nourished under Article 21.

Conclusion

Despite such Landmark Judgments of the Indian Judiciary, sexual minorities in India still face discrimination in obtaining employment, occupational therapy, and personal rights. It makes them inconsistent with the vibrant liberal and comprehensive constitution of the nation, it deprives them of their rights, and hinders their social development.

The sole need of the LGBTQ community is an anti-discrimination law that empower them to lead productive lives and relationship regardless of gender identity and sexual orientation and the duty of change is on the state and the society and not on the Individual.

The Constitution has been portrayed as an extravagant of fundamental rights in contemporary society. Yet the LGBTQ Community continues to be a long way from clearing their goal in this marathon. The power and obligation to recognize the LGBTQ community’s rights and to accept them as they are should not be left solely in the hands of government officials if we are to mainstream the LGBTQ society and its members.