Naz Foundation v. Govt. of NCT of Delhi
Encyclopedia
Naz Foundation v. Govt. of NCT of Delhi is a landmark Indian case decided by a two-judge bench of the Delhi High Court
, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights
protected by India's
Constitution
.
of the Indian Penal Code
, introduced during British rule of India, criminalizes "carnal intercourse against the order of nature". This phrase was interpreted to mean all forms of sexual activity other than heterosexual penile-vaginal intercourse.
The movement to repeal Section 377 was led by the Naz Foundation (India) Trust
, a non-governmental organization, which filed a lawsuit
in the Delhi High Court
in 2001, seeking legalisation of homosexual intercourse between consenting adults. 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 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 decided that Naz Foundation had the standing to file a public interest lawsuit in this case, and sent the case 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 LGBT
rights. 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.
and Justice S. Muralidhar, and the judgment was delivered on 2 Jul 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 animus 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 impediment to public health because it hinders 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.
Within hours, news of the judgment was being carried by international news sites. Lawrence Liang called it India's Roe
moment. Activists, commentators and organizations like UNAIDS
lauded the decision, while some religious leaders and politicians voiced displeasure over the judgment.
Some special leave petitions were filed in the Supreme Court requesting an interim stay of the judgment, pending an appeal. However, the Supreme Court rejected those requests.
Delhi High Court
The High Court of Delhi was established on 31 October 1966. The High Court of Delhi was established with four judges. They were Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. K. Kapur.-History:...
, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights
Fundamental Rights in India
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India...
protected by India's
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
Constitution
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
.
Background
Section 377Section 377 of the Indian Penal Code
Chapter XVI, Section 377 of the Indian Penal Code is a piece of legislation in India introduced during British rule of India that criminalises sexual activity "against the order of nature." The section was read down to decriminalise same-sex behaviour among consenting adults in a historic...
of the Indian Penal Code
Indian Penal Code
Indian Penal Code is the main criminal code of India. It is a comprehensive code, intended to cover all substantive aspects of criminal law. It was drafted in 1860 and came into force in colonial India during the British Raj in 1862...
, introduced during British rule of India, criminalizes "carnal intercourse against the order of nature". This phrase was interpreted to mean all forms of sexual activity other than heterosexual penile-vaginal intercourse.
The movement to repeal Section 377 was led by the Naz Foundation (India) Trust
Naz Foundation (India) Trust
The Naz Foundation Trust is a non-governmental organisation in that country that works on HIV/AIDS and sexual health. It is based in the Indian capital of New Delhi.-History:...
, a non-governmental organization, which filed a lawsuit
Public interest litigation
In Indian law, Public Interest Litigation OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party...
in the Delhi High Court
Delhi High Court
The High Court of Delhi was established on 31 October 1966. The High Court of Delhi was established with four judges. They were Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. K. Kapur.-History:...
in 2001, seeking legalisation of homosexual intercourse between consenting adults. 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 in the matter. Naz Foundation appealed to the Supreme Court of India
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a public interest lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the merits.
In 2006, the National AIDS Control Organisation
National AIDS Control Organisation
The National AIDS Control Organisation , established in 1992, is a division of India's Ministry of Health and Family Welfare that provides leadership to HIV/AIDS control programme in India through 35 HIV/AIDS Prevention and Control Societies, and is "the nodal organisation for formulation of policy...
filed an affidavit stating that the enforcement of Section 377 violates LGBT
LGBT
LGBT is an initialism that collectively refers to "lesbian, gay, bisexual, and transgender" people. In use since the 1990s, the term "LGBT" is an adaptation of the initialism "LGB", which itself started replacing the phrase "gay community" beginning in the mid-to-late 1980s, which many within the...
rights. 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.
Judgment
The case came up for hearing before a bench comprising Chief Justice Ajit Prakash ShahAjit Prakash Shah
Ajit Prakash Shah was the Chief Justice of the Delhi High Court from May 2008 till his retirement in February 2010...
and Justice S. Muralidhar, and the judgment was delivered on 2 Jul 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 animus 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 impediment to public health because it hinders HIV
HIV
Human immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
-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
Parliament of India
The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
chose to amend the law.
Reception
According to an eyewitness account, as the Chief Justice read out the conclusion, "an audible gasp went around the room. By the time the Chief Justice had finished reading the conclusion of the judgment, people were openly weeping and there were handshakes and hugs all around."Within hours, news of the judgment was being carried by international news sites. Lawrence Liang called it India's Roe
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
moment. Activists, commentators and organizations like UNAIDS
Joint United Nations Programme on HIV/AIDS
The Joint United Nations Programme on HIV and AIDS, or UNAIDS, is the main advocate for accelerated, comprehensive and coordinated global action on the HIV epidemic....
lauded the decision, while some religious leaders and politicians voiced displeasure over the judgment.
Some special leave petitions were filed in the Supreme Court requesting an interim stay of the judgment, pending an appeal. However, the Supreme Court rejected those requests.