The fundamental rights of every citizen of India form an integral part of the basic structure of the Indian Constitution. The transgender individuals of India, though equal to the rest of the citizens in every regard, were oppressed for almost a century, both legally and socially. However, the honourable Delhi High Court’s judgment in 2009 followed by the legislation on the subject, has significantly changed their standing in the society by holding Section 377 against the provisions of the Constitution i.e. infringement of Articles 14, 15, and 21 which provides for the basic fundamental rights of a citizen. This article is an effort to trace this journey of the Third Gender Rights evolution through a landmark judgement.
In the High Court of Delhi
|Name of the Case||NAZ Foundation v. Government of NCT of Delhi and Others|
|Citation||160 Delhi Law Times 277|
|Year of the Case||July 2, 2009|
|Respondent||Government of NCT of Delhi and Others|
|Bench/Judges||Chief Justice Ajit Prakash Shah and S. Muralidhar|
|Acts Involved||Constitution of India and Indian Penal Code 1861|
|Important Sections||Articles 14, 15, 19, 21 of COI and Section 377 of IPC|
LGBTQ stands for Lesbian, Gay, Bi-sexual, Transgender, and Queer. Section 377 of the Indian Penal Code 1860, earlier stated that having unnatural intercourse with a man, woman, an animal is a criminal act. The word unnatural meant: people of the same sex having intercourse with one another.
Naz Foundation (India) Trust contested before the Delhi High Court, the constitutionality of Article 377 under Articles 14, 15, 19, and 21. In 2009, the Delhi High Court ruled that Section 377 could not be used to punish intercourse amongst two consensual adults – this infringed the right to privacy and personal liberty under Article 21 of the Constitution. The Court ruled that the classification and persecution of homosexuals abuse the assurance of equal rights provided for in Article 14 of the Constitution. Thus, Article 377 contravened human dignity, which is integral to the Constitution of India.
The historical documents indicate that sodomy in England was a common-law offence and was chronicled in Fleta in 1920 and Britton in 1300, then in British Columbia. Lord Macaulay established the Indian penal code which was implemented in colonized India in 1861. The biggest issue and point at which this law was spoken most is that it was founded by men who had absolute power and complete influence over Indians’ minds and who still have such a law testify to their demonstrated ability to live up to our rules. In many’s opinions, this legislation remains outdated and needs to be revised so that minorities too are included.
A landmark case of India’s legal history. In this case, a writ petition was filed in 2001 by the petitioners i.e. Naz Foundation, which is an NGO functioning in the public health field for HIV/AIDS sufferers, calling into question the constitutionality of Section 377 of the Indian Penal Code, entitled of criminalizing “unnatural crimes” (Consensual oral and anal intercourse in privacy amongst adults) and has been in the books of the Statute since 1861. It has essentially been a topic for debate because many believe it is overtly oppressing and depriving a minority and a community of freedom and choice. The Naz Foundation argued that Section 377 violated the fundamental rights guaranteed by Articles 14, 15, 19, and 21 of the Indian Constitution. The Commission kept its stance based on its attempts to combat HIV / AIDS spread by opposing the prejudice against the LGBTQ+ community under Section 377. The Council decided in the public interest. The petitioners described this discrimination which has resulted in the violation of some essential and basic human rights, public officials exploited, threatened, and aggressively attacked and subsequently taken the LGBTQ+ community underground and forced to shape the core of their own identity.
In 2004, the High Court of Delhi rejected the petition because of the failure to consider an academic appeal to the substantive existence of the legislation. The Naz Foundation asked the Supreme Court to consider the matter and to remit it to review. The Supreme Court Voices against S.377, the plaintiff was sponsored by an alliance of human rights associations representing minors, females, and LGBTQ+ groups. Representing the respondent, the Indian Union, was the Ministry of Internal Affairs and the Ministry of Family and Welfare. Nevertheless, the stance of the government divided and the Ministry of Health and National AIDS Control Organization (NACO) defended the petitioner.
Section 377 of IPC was proposed and enforced in India during the Colonial rule. It prohibits and criminalizes the ‘carnal sex against the order of nature’. This phrase has been interpreted and refers to all sexual variations and types except the heterosexual penile-vaginal relations.
The movement to dismantle Section 377 was spurred by an NGO, the Naz Foundation Trust. In 2001, they brought a lawsuit before the Delhi High Court seeking to legalize homosexual intercourse among two consensual adults. The petition filed by Naz Foundation is the second one concerning this matter. AIDS Bhed Bhav Virodhi Andolan filed the first petition in 1994.
A petition concerning the legality of the law was refused by the High Court of Delhi in 2003 stating that petitioners has no locus standi i.e. right to bring the matter before the court.
The Foundation then appealed the decision of the High Court to deny and ignore their petition for legal reasons to the Supreme Court of India. The Supreme Court determined and herewith recognized the rule and the right to file a public lawsuit in this case by the Naz Foundation, which returned the matter to the Delhi High Court to review it on grounds.
In 2006, the National AIDS Control Organization also submitted an affidavit detailing the violation of the rights of the LGBT community in compliance and implication of Section 377.
At the same time, there was a powerful and significant intervention by the LGBT, women’s, and human rights activist alliance based in Delhi, called “Voices against 377” that endorsed the proposal to “read” Section 377 and to delete it from the definition of adult consensual sex.
This reading of Article 377, the Naz Structure and others, was based on the infringement of the fundamental rights enshrined in Articles 14, 15, 19, and 21 of the Indian Constitution. The Foundation took this initiative to the general public as its attempts to prevent the spread of HIV / AIDS are thwarted by gay community discrimination. The petitioners submitted that prejudice led to basic human rights being violated and public officials being insulted, threatened, and attacked and that the gay community was put under and exposed to a greater infringement of their constitutional rights.
- Whether Section 377 violated fundamental rights enshrined in the Indian Constitution?
- Whether the impugned provision should be interpreted to decriminalize penile non-vaginal sex between consenting adults?
Constitution of India
- Articles 14- Equality before law.
- Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
- Article 19- Protection of certain rights regarding freedom of speech, etc.
- Article 21- Protection of life and personal liberty.
Indian Penal Code 1861
- Section 377.
Indian Case Laws:
- Maneka Gandhi v. Union of India
- Kharak Singh v. The State of U.P.
- State of Madras v. V.G.Row
International Case Laws:
- Roe v. Wade
- Planned Parenthood of South-eastern Pa v. Casey
- Dudgeon v. The United Kingdom, 45 Eur. Ct. H.R.
- Norris v. Republic of Ireland
- Toonen v. Australia
The High Court judgment in Delhi is a comprehensive speech in that it raises many questions relevant to the validity of Section 377. In reviewing its conformity with Articles 14, 15, 19, and 21, the Court examined the constitutional validity of the challenged statute. Having held that the rights to dignity and the privacy of the person are part of sexual orientation, the Court concluded that Section 377 is a clear contravention of the above-mentioned rights and therefore contradicts the essence of Article 21. In order to answer the question of infringement of Article 14, the Court has applied the tests laid down by the Supreme Court in the decision of State of West Bengal v. Anwar Ali Sarkar. The Court ruled that unreasonable distinction was reflected between the disputed law and the criminalisation of consensual sexual interactions between adults and the prevention of sexually exploited children or enhanced public health. The court subsequently interpreted the word “sex” in Article 15 not only to imply sex but also to have a broader scope, like “sexual orientation.” In this regard, the Court ruled that Article 377 is prima facie discriminatory against sexual minorities, thereby breaching Article 15. The Court found it superfluous to discuss the issue in Article 19 since the challenged legislation contravened Article 21 and Article 14.
The court, in a final concession, applied the doctrine of severability only to the point of decriminalizing consensual intercourse between adults, in order to read down the impugned statute. The immediate outcome was an exceptionally enthusiastic response from the sexual minority across the nation but was denounced by religious leaders. In the light of its social effect, the decision is not simply a declaration in dry legal language but is a pathway to the liberation of the homosexual people, a long denounced group of discriminated against. It is also relevant because it includes people’s sexual rights in the basic law.
Stated that Section 377 violates Article 14, 15, and 21. The Delhi High Court in this 105 pages judgment decriminalized the consensual sexual acts of the same gender and held penal provision as “illegal”. Section 377 was not struck down as a whole instead the court decriminalized a portion of Section 377 or an interpretation of the said Section. The High Court held, “We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, violates Articles 21, 14 and 15 of the Constitution.”
The Delhi High Court opined that social morality must succumb to the concept of constitutional morality. The Court further held, “The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.” But many religious groups and individuals were not happy with the judgment and hence challenged the decriminalization of Section 377 and moved to Supreme Court to seek action against the verdict. Between 2009 to 2012, fifteen special leave petitions were filled in the Supreme Court out of which seven petitions were intervention applications. Five petitions were in support of decriminalization of Section 377 while two were against it.