Vaishnavi Annasaheb Nirmal | Manikchand Pahade Law College, Aurangabad | 8th February 2020
Naz Foundation v. Govt. of NCT of Delhi & Others(WRIT PETITION (CIVIL) NO. 7455 OF 2001)
Facts:
The movement to repeal Section 377 was led by the Naz Foundation (India) Trust, a non-governmental organization, which filed a Public Interest Litigation in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults. This was the second such petition, the first filed in 1994 by AIDS Bhedbhav Virodhi Andolan. In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners had no locus standi (right to stand before the court) in the matter.
Naz Foundation appealed to the Supreme Court of India against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court observed that Naz Foundation had the standing to file a Public Interest litigation in this case and the case not of such a nature which could have been dismissed on the aforesaid ground. The case was sent back to the Delhi High Court to reconsider it on the merits.
In 2006, the National AIDS Control Organisation filed an affidavit stating that the enforcement of Section 377 violates rights of lesbian, gay, bisexual and transgender (LGBT community). Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, Women’s and Human Rights activists called “Voices Against 377”, which supported the demand to “read down” section 377 to exclude adult consensual sex from within its purview.
Issues Raised:
Section 377 IPC, on account of it covering sexual acts between consenting adults in private infringes the fundamental rights guaranteed under Articles 14, 15, 19 & 21 of the Constitution of India.
Judgement:
The case came up for hearing before a bench comprising Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, and the judgment was delivered on 2 July 2009. The Court located the rights to dignity and privacy within the right to life and liberty guaranteed by Article 21 of the Constitution, and held that criminalization of consensual gay sex violated these rights.
The Court also held that Section 377 offends the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class. Public attitude and disgust towards a particular social group or vulnerable minority, it held, is not a valid ground for classification under Article 14. Article 15 of the Constitution forbids discrimination based on certain characteristics, including sex. The Court held that the word “sex” includes not only biological sex but also sexual orientation, and therefore discrimination on the ground of sexual orientation is not permissible under Article 15. The Court also noted that the right to life under Article 21 includes the right to health, and concluded that Section 377 is an disablement to public health because it obstructs HIV-prevention efforts.
The Court did not strike down Section 377 as a whole. The section was declared unconstitutional insofar it criminalises consensual sexual acts of adults in private. The judgement keeps intact the provision insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors. The court stated that the judgement would hold until Parliament chose to amend the law.
The verdict resulted in the decriminalization of homosexual acts involving consenting adults throughout India. This was later overturned by the Supreme Court of India in Suresh Kumar Koushal vs. Naz Foundation, in which a 2 judge bench reinstated Section 377 of the Indian Penal Code. However, even that was overturned by a 5 judge bench in Navtej Singh Johar v. Union of India in 2018, decriminalizing homosexuality once again.
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