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Naz Foundation v. Govt.

of NCT of Delhi

[ WP (C)7455/2001]

- Vishakha Rajgarhia1

FACTS :-
1. The Naz Foundation, an NGO in India, filed a writ petition in the Delhi High Court
challenging the constitutional validity of Section 377 of the Indian Penal Code (IPC), 1860.
This section penalised crimes amounting to unnatural offences, which had the effect of
criminalising consensual sexual intercourse between adults, even when conducted in private.

2. The petitioner argued that Section 377 infringed upon Articles 14, 15, 19 and 21
respectively of the Constitution of India. They also argued that the impugned provision
should only criminalise non-consensual penile, non-vaginal sex and penile, non-vaginal sex,
involving minors.

3. In a landmark judgment delivered on July 2, 2009, the Delhi High Court ruled that Section
377 of the Indian Penal Code, 1860 violated a number of fundamental rights, including the
right to privacy and right to dignity under the fundamental right to life and liberty (Article
21), the right to equality (Article 14), and prohibition of discrimination on grounds of sex
(Article 15). The said decision has been appealed against before the Supreme Court of India.

ISSUES :-

The major issues that arose before the Court for its consideration in the present case dealt
with the violation of the Fundamental Rights enshrined under Articles 14, 15 and 21
respectively of the Constitution of India. The courts decision revolved around the following
issues:-

1. Whether there has been any violation of any of the Articles 21, 14 and 15 of the
Constitution of India?

1 1st semester B.A.(Hons) LL.B.(Hons); NUSRL, Ranchi; Roll No.- 417 ; Section- A
2. Whether the term, unnatural sexual acts holds any rational nexus to the classification
created between procreative and non-procreative sexual acts?

Arguments on behalf of Petitioner :-

The petitioner claims to have been impelled to bring this litigation in public interest
on the ground that HIV/AIDS prevention efforts were found to be severely impaired
by discriminatory attitudes exhibited by state agencies towards gay community, MSM
or trans gendered individuals, under the cover of enforcement of Section 377 IPC, as a
result of which basic fundamental human rights of such individuals/groups stood
denied and they were subjected to abuse, harassment, assault from public and public
authorities.
According to the petitioner, Section 377 IPC is based upon traditional Judeo-Christian
moral and ethical standards, which conceive of sex in purely functional terms, i.e., for
the purpose of procreation only. Any non-procreative sexual activity is thus viewed as
being "against the order of nature".
The petitioner argues that fundamental right to privacy under Article 21 can be
abridged only for a compelling state interest which, in its submission, is amiss here.
Also based on the fundamental right to life under Article 21 is the further submission
that Section 377 IPC has a damaging impact upon the lives of homosexuals.
Further, it has been submitted on behalf of the petitioner that Section 377 IPC's
legislative objective of penalizing "unnatural sexual acts" has no rational nexus to the
classification created between procreative and non procreative sexual acts, and is thus
violative of Article 14 of the Constitution of India.

Arguments on behalf of Respondent :-

Respondent submits that 'Voices against Section 377 IPC' is a coalition of 12


organisations that represent child rights, women's rights, human rights, health
concerns as well as the rights of same sex desiring people including those who
identify as Lesbian, Gay, Bisexual, Transgenders, Hijra and Kothi persons (which are
referred to in the affidavit as "LGBT").
It has been submitted on behalf of the respondent that rights involved in diverse areas
of public and social importance and that in the course of their work they have
repeatedly come across gross violation of basic human rights of "LGBT" persons,
both as a direct and indirect consequence of the enforcement of Section 377 IPC.
Respondent supports the cause espoused by the petitioner in this PIL and avers that
Section 377 IPC, which criminalises 'carnal intercourse against the order of the
nature', is an unconstitutional and arbitrary law based on archaic moral and religious
notions of sex only for procreation. It asserts that criminalisation of adult consensual
sex under Section 377 IPC does not serve any beneficial public purpose or legitimate
state interest.
To illustrate the magnitude and range of exploitation and harsh and cruel treatment
experienced as a direct consequence of Section 377 IPC, respondent No.8 has placed
on record material in the form of affidavits, FIRs, judgments and orders with
objectively documented instances of exploitation, violence, rape and torture suffered
by LGBT persons.

ANALYSIS :-

Section 377 of the IPC is based on traditional Judeo Christian moral and ethical standards,
where sex is believed to serve only one purpose, i.e., procreation. Thus, any sexual activity
that does not lead to procreation is considered to be against the order of nature.
Therefore, the legislation that criminalises consensual non procreative sexual activities is
superannuated for the society today.

In Planned Parenthood of South eastern Pa v. Casey, 505 US 833 (1992), the Court again
confirmed the constitutional protection to personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing and education. In explaining
the respect the Constitution demands for the autonomy of the person in making these choices,
the Court stated as follows:
"These matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy.
Section 377 of IPC is relevant for cases of paedophilia and tyke sexual abuse and assault, but
it turns out to be a bane for consensual same-sex conduct and thus, this section becomes a
weapon of police abuse. This is because, detaining and questioning, extortion, harassment,
forced sex and payment of hush money perpetuates negative and discriminatory beliefs
towards same-sex relations and sexual minorities; which consequently drive the activities of
gay men and MSM, as well as sexual minorities underground thereby crippling HIV/AIDS
prevention efforts.

A very important question arises regarding the violation of the Fundamental Rights enshrined
under Part III of the Constitution of India by Section 377 of the IPC, 1860. Article 14 of the
Constitution of India talks about equality in two broader aspects viz., equality before law and
equal protection of law. In the instant case, this right is violated because a certain section of
the society is being treated differently under the law.

Before, getting into the details of the discrimination, let us know first that we all are human
beings and we have our own credentials. Our choices, must never become a basis of
discrimination unless they pose a threat to the nations security in any possible manner. In this
case, once choices are about ones sexual orientation and the method of achieving sexual
gratification. On the basis of something this, personal individuals are being treated
differently under the eyes of law. The petitioners in this case brought up a very rational
argument that brings ones sexual orientation under the ambit of Article 15. They indicated
that in the dynamic society, the law must be interpreted in a progressive manner. Article 15
does mention that there would be no discrimination amongst people based on sex. The word
sex must be considered inclusive of ones sexual orientation as well and not just ones gender
differences.

Therefore it is evident hereof that the people have been discriminated against on the basis of
their choice of partner. State has made such laws and therefore it clearly violates the
Fundamental Rights of the people belonging to a particular community which is in question.
Article 21 of the Constitution gives us the right to life and protection of personal liberty.
Section 377 of the IPC is a clear violation of this right since it denies personal liberty to the
people by giving way to discriminatory practices.
Personal liberty here strictly confines to the activities of sexual nature between two
consenting adults. Article 14 of the Constitution of India clearly mentions that there would be
no denying of equality before law and equal protection of the law to the people by the State.
In this case the state has been trying to justify this discrimination based on ones sexual
orientation and preference by terming it to be unnatural. The distinguishing factor is mainly
the act of procreation. Therefore, a sexual activity that leads to procreation is considered
natural while on the contrary an activity of sexual nature which does not lead to procreation is
unnatural.

CONCLUSION :-

From the arguments and contentions raised and on the basis of the inference drawn from the
observations Supreme Court declared that Section 377 IPC, insofar it criminalises
consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the
Constitution. Hence, petition is allowed.