|NAME OF THE CASE
|Naz Foundation v/s Government of NCT of Delhi & Ors.
|The High Court Of Delhi at New Delhi
|160 Delhi Law Times 277
|DATE OF THE CASE
|2nd July 2009
|Government of NCT of Delhi
|Chief Justice Ajit Prakash Shah and S.Muralidhar
|The Indian Penal Code,1860 and The Constitution of India
|Section 377 of IPC and Articles 14,15,19&21 of the Indian Constitution
The Naz Foundation is a non-governmental organisation which works on HIV or AIDS and venereal education and health since 1994. In 2001, the corporation had filed a writ petition in the Delhi High Court, which challenged the constitutional validity of Section 377 of the IPC and claimed that the disputed law is violative of Articles 14, 15, 19 and 21 of The Indian Constitution. A bench containing Chief Justice B.C. Patel and Justice Badar Durrez Ahmed expelled the petition in 2004, which resulted in which the petitioners approached the Supreme Court. The Supreme Court ordered the High Court to re-examine the issue as it deemed worthy consideration. Consequently, the Delhi High Court had to consider the petition. On 2 July 2009, the Delhi High Court ended the discriminatory treatment against people because of their sexual orientation which was in continuity for over a century by declaring the application of remarkable elements of Section 377 of the India Penal Code (IPC) unconstitutional.
Section 377 of the Indian Penal Code is a relic of the British legal system which in effect criminalises same-sex conduct. Naz Foundation v. Govt. of NCT of Delhi is one of the landmark Indian cases which was decided by a two-judge bench of the Delhi High Court and which held that treating consensual homosexual sex between 2 adults as a crime is violative of the fundamental rights protected by the Indian Constitution. The judgement resulted in the decriminalization of homosexual acts which involves consenting adults throughout India. However, this decision was later overturned by the Supreme Court of India in Suresh Kumar Koushal vs. Naz Foundation, in which Section 377 of the Indian Penal Code was reinstated by a 2 judge bench. However, even that was also revoked by a 5 judge bench in Navtej Singh Johar v. Union of India in 2018, which decriminalizes homosexuality once again. In this case note, I will be setting out the facts of the case, examine the judicial reasoning behind the judgment and will be commenting on some of the implications of the decision.
The writ petition was filed by Naz Foundation which was a Non-Governmental Organisation, as a Public Interest Litigation (PIL). It challenged the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), which criminally penalizes what’s described as “unnatural offences”, to the extent that the said provision criminalises consensual sexual acts between adults privately. The challenge is filed on the plea that Section 377 of the IPC, on account of it covering sexual acts between consenting adults privately violates the fundamental rights of the citizens of India guaranteed under Articles 14, 15, 19& 21 of the Constitution of India. To limit their plea, the petitioners submitted that Section 377 of the IPC should only be applied to non-consensual penile, non-vaginal sex and penile non-vaginal sex which involves minors.
In 2003, the Delhi High Court refused to consider a petition regarding the legitimacy of the law. It said that the petitioners do not have locus standi in the concerned issue. But the Naz Foundation was not satisfied with the decision and filed an appeal in the Supreme Court of India against the verdict of the High Court which dismissed the petition on technical grounds. The Supreme Court gave its decision in the favour of the Naz Foundation. It stated that the 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 virtues.
The National AIDS Control Organisation, in 2006, had filed an affidavit which states that the enforcement of Section 377 violates LGBT rights. Following this, there were a remarkable intervention in the case by a Delhi-based alliance of LGBT, women’s and human rights activists called “Voices Against 377”, which was in support of the demand to remove section 377 to exclude adult consensual sex from within its purview.
BACKGROUND OF THE CASE
This particular year, we woke up to June which was a pride month, gazing at the Google Doodle of Dr. Frank Kemeny(1925-2011). He was an American astronomer, gay rights activist and veteran. Kemeny, remarkably challenged the American Psychiatric Association’s categorization of homosexuality as a mental disorder, in the early 1970s. The global LGBTQ+ community finds its way after the 1970s. But in India, the strange community is still a stigmatised and invisible minority, a fact which is alarmingly incompatible with the country’s living, liberal and inclusive Constitution. The Constitution was conceived by India’s founding fathers as a beacon of Fundamental Rights which leads once enslaved Indians to the promised land of life and freedom. The Indian state and the law have been abusing and given many marginalised segments of the citizenry such as the freaky community of India despite the liberating constitution.
Section 377 of the Indian Penal Code, which is just a fabrication of colonial creation, has criminalised “unnatural sexual acts” since its application as law in 1862. Homosexuality definitely falls within the category of such acts and may attract disciplinary measures. In the past century, legislatures and judiciaries around the whole world have upheld laws that criminalizes homosexuality and transgender behaviour and justified them on grounds of public decency and morality.
With the advent of the contemporary era, the movement against the repressive and oppressive nature of Section 377 had grown exponentially and reached its culmination in Naz Foundation v. Government of NCT of Delhi, wherein the Delhi High Court acknowledged the anachronism associated with Section 377 of the IPC and gave an interpretation to exclude sexual acts between consenting adults and thus decriminalising homosexuality. Although the ramifications are limited and may be subdued by an ordinary act of the Parliament, the judgment became a landmark in civil liberties litigation and in future might be regarded as one of the stepping stones to the liberation of the sexual minorities in India from oppressiveness and coercion at the hands of the law.
Since time immemorial Section 377 has been extensively used by the law enforcers to harass and exploit homosexuals and transgender persons. Various incidents have come to light in the recent past which can prove it. Among many such cases, one is Jayalakshmi v. State of Tamil Nadu. In this case, Pandian, a transgender, was arrested by the police on charges of theft. He was sexually abused within the police custody which ultimately led him to sacrifice his life on the premises of the police station. Homosexuals have also been at the oppressed end of financial extraction by the police so that their identity remains a secret in society.
A peculiar use of Section 377 of the IPC was seen in Lucknow when workers of Bharosa, an NGO which aimed at spreading awareness about AIDS, were arrested as they were distributing some pamphlets which were providing tips on safe sex to homosexuals. Section 377 of the IPC has been grossly misused is evident from the various instances of abuse and violence against homosexuals and transgenders. It is equally obvious that a judicial move to address this concern was essential in the face of a law enforcement framework so hostile that exploitation at the hands of the alleged protectors became an ordinary affair for sexual minorities in India.
FACTS OF THE CASE
The Naz Foundation India, a non-governmental organization which was committed to HIV or AIDS intervention and prevention had filed a PIL in the Delhi High Court which challenged the constitutional validity of Section 377 of the India Penal Code, which makes it illegal to engage in any “unnatural” sexual act, defined as a sex other than heterosexual intercourse. Initially, the Delhi High Court expelled the original writ petition in 2004 for lack of cause of action. However, on civil appeal, the Supreme Court of India cast aside the dismissal and ordered the Delhi High Court to hear the petition on the virtues.
The petitioner i.e. the Naz Foundation argued that Section 377 of the IPC encourages discriminatory attitudes, abuse, and harassment towards the gay community, and symbolically impaired HIV/AIDS prevention efforts and access to treatment. The National AIDS Control Organization (NACO) which comes under the Ministry of Health supported the petitioners in their response. Simultaneously a Delhi-based alliance of LGBT, women and human rights activists called “Voices Against 377”, also intervened in the case and supported the demand to “read down” and do away with section 377 to exclude adult consensual sex from its perception. This was not the first petition of this kind. The first one was filed in 1994 by AIDS Bhedbhav Virodhi Andolan.
ISSUES RAISED BEFORE THE COURT
In 2001, a writ petition has been filed in the Delhi High Court by the Naz Foundation (the petitioner) which is a Non-Governmental Organisation, working in the public health field. The petition challenged the constitutionality of Section 377 of the IPC, which criminalises consensual oral and anal sex between adults in personal as “Unnatural Offences”. The writ petition raised the issue of whether Section 377 of the IPC infringes the fundamental rights (Article 14,15,19 and 21) guaranteed to the citizens by the Constitution of India.
- The Petitioner i.e. The Naz Foundation which is a non-governmental organisation stated that the harassment and discrimination of the gay and transgender minority in India resulting from the continued implication of Section 377 affected the rights of that community which were guaranteed under the Constitution of India, which included the right to equality, the right to non-discrimination, the right to privacy, the right to life and liberty, and the right to health.
- They argued that the Constitution of India protected the right to privacy under the right to life and liberty enunciated under Article 21 of the Indian Constitution.
- They further argued and submitted that the right to non-discrimination on the basis of sex in Article 15 of the Indian Constitution should not be read restrictedly and obstructively but should include “sexual orientation”.
- They also held that the criminalisation of homosexual activity and actions by Section 377 of the IPC was prejudicial on the basis of sexual orientation and was hence contrary to the Constitutional guarantee of non-discrimination under Article 15 of the Indian Constitution. The aim of this section is to promote safe sex practices.
- Lastly, the Naz foundation articulated that courts in other areas and jurisdictions have struck down and done away with comparable provisions regarding sexual orientation on the grounds that they violated the rights to privacy, dignity and equality. Further they depicted that government cannot make private sexual behaviour criminal when there is no overriding compelling state interest.
- 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. But surprisingly the two ministries opposed each other in terms of the permissible arguments submitting two completely contrasting affidavits.
- On one hand, the MHA, argued for the retention of Section 377 of the IPC on various grounds. Firstly, it provided for the prosecution of individuals for the sexual abuse of children. Secondly, it filled a gap in the rape laws. Thirdly, if it is removed, it would provide for “flood gates of criminal behaviour” which would definitely not be in the public interest. Finally, MHA submitted that the Indian society does not morally condone such behaviour and law should rather reflect societal values such as these.
- On the other hand, the Ministry of Health and Family Welfare which was in association from the National Aids Control Organisation, submitted evidence in support of the Naz Foundation’s plea and stated that the existence of section 377 of the IPC is counter productive to the efforts of HIV/AIDS prevention and treatment for the same.
- They argued for the dismissal of Section 377 of the IPC stating that it makes a large flake of people in high risk categories in relation to HIV/AIDS reluctant. They do not come forward for treatment due to hesitance or because of fear of law enforcement agencies. And in driving homosexuality underground it increases promiscuous behaviour that is of unprotected sex.
- Section 377 of the IPC: Section 377 of the Indian Penal Code was introduced in 1861 during the British rule of India. It was modelled on the Buggery Act of 1533 and it makes venereal activities “against the order of nature” illegal. On 6 September 2018, finally the Supreme Court of India ruled that the appliance of Section 377 to consensual homosexual sex between adults was unconstitutional, “irrational, indefensible and manifestly arbitrary”, but still the Section 377 remains in effect regarding sex with minors, non-consensual sexual acts, and bestiality.
According to Section 377 of the Indian Penal Code,1860, “ 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.” Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
- Article 14 of the Indian Constitution: Article 14 of the constitution of India guarantees its citizens equality before law further as equal protection of the law to all or any people within the territory of India. This includes the equal subjugation of every individual to the authority of law, yet as equal treatment of people in similar situations. The latter authorises the State to classify persons for legal purposes, provided there should be a reasonable basis for the same, which means that the classification should be non-arbitrary and may be supported by a technique of intelligible differentiation among people who sought to be classified, moreover who have a rational relevancy to the object sought to be achieved by the classification.
- Article 15 of the Indian Constitution: Article 15 of the constitution of India strictly prohibits discrimination on the grounds of faith, race, caste, sex, place of birth, etc.. This right can always be enforced against the State moreover as private individuals, with respect to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds.However, this article doesn’t preclude the State from making any special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. This exception has been provided since the categories of people mentioned above are considered deprived of and in need of special protection.
- Article 19 of the Indian Constitution: Article 19 of the constitution of India guarantees six freedoms within the nature of civil rights only to the citizens of India. The six freedom includes the liberty of speech and expression, freedom of assembly without arms, freedom of association, freedom of movement throughout the territory of our country, freedom to reside and settle in any a part of the country of India and therefore the freedom to practice any profession. All the above mentioned freedoms are subject to reasonable restrictions that may be imposed by the State, listed under Article 19 itself. The grounds for imposing these restrictions may vary according to the freedom sought to be restricted and include national security, public order, decency and morality, contempt of court, incitement to offences and defamation. The State is additionally empowered, within the interests of the overall public to nationalize any trade, industry or service to the exclusion of the citizens.
- Article 21 of the Indian Constitution: Article 21 of the constitution of India is regarded as the heart and soul of the fundamental rights. According to Article 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Right to life is elemental to our very existence without which we cannot live as a human being and which has all those aspects of life which contribute to make a man’s life meaningful, complete, and worth living. It’s the sole article within the Constitution of our country that has received the widest possible interpretation. Article 21 gives shelter, growth and nourishment to too many rights.
The judgment of the Delhi High Court brought with the aid of using the bench of Chief Justice Ajit Prakash Shah and Justice S.Muralidhar is one of the most prolific ones as it addressed various concerns associated with the existence of Section 377 of the IPC. The Court now no longer handiest evaluated the constitutional validity of the impugned regulation however additionally tested its compatibility with Articles 14, 15, 19 and 21 of the constitution of India.
The court held that Section 377 constituted a direct infringement of the aforementioned right and as a consequence, it violates the substance of Article 21 as well as it was also held that sexual preferences fall within the right to dignity and privacy of the individual. The courtroom docket carried out the exams laid down with the aid of using the Supreme Court for the reason that selection in State of West Bengal v. Anwar Ali Sarkar simply to reply the query of violation of Article 14. The court stated in its decision that the impugned law begot an erratic differentia and there was no rational connection between preventing child sexual abuse or ameliorating public health and the criminalisation of consensual venereal interrelations between adults.
The courtroom docket then moved ahead to interpret the term “intercourse” in Article 15 to now no longer handiest to indicate gender however to have a much wider circumference along with “sexual orientation”. Further moving on this perception only, the court ruled that Section 377 is prima facie discriminatory towards the sexual minorities and is therefore being violative of Article 15 as well. With the disputed law contravening Article 21 and Article 14, the court found it redundant to entertain the question of violation of Article 19.
The Delhi High court, in conclusion, applied the doctrine of severability so to read down the impugned law only to the extent of decriminalising consensual sex between adults. Though the instant reaction to the judgment was of extreme glee from the sexual minorities across the nation, religious leaders condemned it with equal passion. If the judgment is viewed inclusive of its social impact, it is not merely a proclamation of a court in a technical language but it represents the path to disenthrallment for the sexual minorities which was earlier condemned and discriminated against. It is also important due to its inclusion of the sexual rights of the individual in the boundaries of fundamental rights enshrined within Part III of the constitution of India.
The Court also accepted that sexual conduct was not only about identity but also about privacy. Relying on diverse sources, along with the Yogyakarta Principles, the Court referred to that “the experience of gender and sexual orientation of the character is so embedded in the person that the character consists of this component of his or her identification any place she or he goes”. The Court concluded with the aid of using including that Section 377 dismisses a character’s self-recognized and criminalises his or her primary identification completely because of his or her sexuality. This criminalisation of identification denies a transgender character a proper to complete personhood that is inferred withinside the perception of existence beneath Article 21.
The Court was also concerned about the stigmatising effects of Section 377 even when it was not enforced. After referring to the evidence that showed Section 377 was used to brutalise and harass an individual, the Court compared the criminalisation of identity to the Criminal Tribes Act 1871. The Court didn’t strike down Section 377 as an entire however the phase turned declared unconstitutional as quickly because it criminalises consensual sexual acts of adults in private. The verdict maintains intact the availability as quickly as it’s far carried out to non-consensual, non-vaginal sex and sex with minors. In the give up the courtroom docket said that the judgement might keep till Parliament selected to amend the regulation.
I really trust the petitioner’s i.e. the Naz Foundations’s arguments to supply some counter-arguments to the respondent’s side, I’d prefer to add that marriage is just a legal contract. People of the LGBTQ+ network having the freedom to travel into their relationships does now not intervene with the sanctity of marriage in any manner. Those who’re in heterosexual relationships can unite while not having to reduce the rights of the LGBT network. It isn’t always a binary concept, wherein we’ve one or the various.
The non-secular organizations sincerely bear in mind the factor that marriage is an essential proper in India. Therefore, I trust that LGBTQ+ and non-binary people have to additionally have the right to a marital union. Right to privacy as long as it does harm others isn’t always a problem. AIDS/HIV does now no longer simplest unfold through sexual contact, however through any physical fluid.
De-stigmatising the sickness need to be carried out through contraceptives and different strategies through fitness professionals. It does now no longer imply we need to now no longer permit consenting adults of the same intercourse to explicit their intimacy from one another. Homosexuality isn’t always fabricated from Western culture; it existed freely among our non-secular scriptures withinside the pre-colonialism era. The motive why Section 377 has been partially struck down due to that bestiality remains taken into consideration unnatural.
This is genuinely due to the fact animals cannot provide consent. Some students argue that putting down sodomy is risky to folks that don’t consent to it. My rebuttal to this is that sodomy without consent is vaguely protected withinside the IPC beneath rape, however, this simplest applies to women. This is why we want gender-impartial legal guidelines with regards to non-consensual and non-penetrative intercourse. Right to freedom of expression and sexual autonomy need to be offered to non-transgender human beings while not having to warfare in my opinion. Judiciary need to now no longer overturn this judgment withinside the future. In my opinion, we’ve got a protracted manner to go, and we haven’t even scratched the floor of the deep-seated inequality and protectionist nature of our legal guidelines.
The judgment of the Delhi High Court displays an experience of a sense of right and wrong and empathy toward the sexual minorities, feelings that have been hitherto unknown. Section 377, in its criminalisation of homosexual activity, was a repressive measure on the elemental rights of the LGBT community. The repression of anti-homosexuality laws has been recognized by various legal systems in the world. On a more abstract level, the judgment attempts to answer the question of collective societal morality against the individual‟s liberty. The Court has prioritized individual liberty over the thought of collective social morality and thus, has laid the trail for an individualistic approach in judicial decisions. In thus far as its implications are concerned, the judgment could also be overridden by a legislative measure, but it shall stand together of the cornerstone judgments within the history of individual rights and constitutional governance in India.