Naz Foundation v. Govt. of NCT and Ors.

Name of the Court:Delhi High Court  
Case Name:Naz Foundation v. Government of NCT of Delhi and Others.  
Case Number:WP(C) No.7455/2001  
Petitioner:                                                                Naz Foundation.   
Respondent:Government of NCT of Delhi and others.  
Date of Judgement:2nd July, 2009.  
Bench: Shah, A.P (CJ) and Muralidhar, S.  
Provisions of law:1) Section 377, IPC. 2) Articles 14, 15 and 21 of the Constitution of India.  

Facts of the Case

Naz Foundation (India) Trust, a non-governmental organization led the movement for repealing Section 377 by filling a lawsuit in the Delhi High Court in 2001, seeking legalization of voluntary homosexual intercourse between consenting adults and contended that Section 377 of the Indian Penal Code was unconstitutional. 

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 Organization (NACO) filed an affidavit stating that the enforcement of Section 377 violates LGBT rights. Simultaneously, 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

  • Whether the impugned provision should be interpreted to decriminalize penile non-vaginal sex between consenting adults?
  • Whether the fundamental rights of equality, life, liberty, privacy, dignity enshrined under Articles 14, 15, and 21 of the Constitution are violated by Section 377, IPC?
  • Whether the decriminalization of the impugned provision to the extent of consensual sexual relationship is opposed to societal views and public morality?

Contentions of Petitioner

  1. As a result of Section 377 IPC, basic fundamental human rights of such individuals/groups (in minority) stood denied and they were subjected to abuse, harassment, and assault from public and public authorities.
  2. According to the petitioner, Section 377 IPC is based upon traditional Judeo-Christian moral and ethics, which conceive sex purely for the purpose of procreation only. Thus legislation criminalizing consensual oral and anal sex is outdated and has no place in modern society.
  3. By criminalizing private, consensual same-sex conduct, Section 377 IPC serves as the weapon for police abuse; harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities. Section 377 IPC thus creates a class of vulnerable people that is continually victimized and directly affected by the provision.
  4. They further argued and submitted that the right to non-discrimination on the basis of sex in Article 15 should not be read restrictively and obstructively but it should include “sexual orientation”.
  5. They argued that the Constitution protects the right to privacy (which is not expressly mentioned) under the right to life and liberty enshrined in Article 21. It is averred that no aspect of one’s life may be said to be more private or intimate than that of consentual sexual relations. The petitioner argues that the fundamental right to privacy under Article 21 can be abridged only for a compelling state interest.

Contentions of Respondent

  1. Both the Ministry of Home Affairs (MHA) and the Ministry of Health and Family Welfare submitted legal opinions in respect to the writ petition. But it was a surprise that completely contradictory affidavits have been filed by two wings of the Union of India. The Ministry of Home Affairs (MHA) sought to justify the retention of Section 377 IPC, whereas the Ministry of Health & Family Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts.
  2. The MHA, argued for the retention of Section 377 on several grounds. Firstly, that it is provided for the prosecution of individuals for the sexual abuse of children. Secondly, that it filled a gap in the rape laws. Third, that if removed it would provide for “flood gates of delinquent behavior and can possibly be misconstrued as providing unfettered license for homosexuality which would not be in the public interest.
  3. In contrast, the Ministry of Health and Family Welfare (with association from the National Aids Control Organization) submitted evidence in support of the Naz Foundation’s plea– that the existence of section 377 is damaging to the efforts of HIV/AIDS prevention and treatment for the same.


The Delhi High Court delivered a path breaking judgment and declared that Section 377 is ultra vires to the Constitution insofar it criminalizes consensual sexual acts of adults in private.

Reasoning and Findings of Supreme Court

  1. The Court did not strike down Section 377 as a whole. The section was declared unconstitutional insofar it criminalizes consensual sexual acts of adults in private as it is violative of Article 14, 15 and 21. The judgment keeps intact the provision insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors. The court stated that the judgment would hold until Parliament chose to amend the law.
  2. The High Court observed that any distinction or classification must be based on an intelligible differentia which has a rational relation to the objective sought and must not be unfair or unjust. Section 377, the Court said, does not distinguish between public and private acts, or between consensual and non-consensual acts, therefore does not take into account relevant factors such as age, consent and the nature of the act or absence of harm. Thus, such criminalization in the absence of evidence of harm seemed arbitrary and unreasonable.
  3. The High Court referred to the Human Rights Committee’s decision in Toonen v. Australia, (No.488/1992, CCPR/C/50/D/488/1992, March 31, 1994) in which the criminalization of sexual acts between men was considered a violation of Article 2 of the International Covenant on Civil and Political Rights, where a reference to “sex” was taken as including sexual orientation. On the basis of the analysis of Indian and international human rights jurisprudence the High Court declared that Section 377 was also unconstitutional on the basis of Article 15: “We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.
  4. High Court observed, the appropriate sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfillment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalizes his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.
  5. High Court observed that, Section 377 IPC come in the way of MSM accessing HIV/AIDS prevention material or health care intervention. Section 377 IPC pushes gays and MSM underground, leaves them vulnerable to police harassment and renders them unable to access HIV/AIDS prevention material and treatment.
  6. High court also observed that “the submission of ASG that Section 377 IPC helps in putting a brake in the spread of AIDS and if consensual same-sex acts between adults were to be decriminalized, it would erode the effect of public health services by fostering the spread of AIDS is completely unfounded since it is based on incorrect and wrong notions. Sexual transmission is only one of the several factors for the spread of HIV and the disease spreads through both homosexual as well as heterosexual conduct. There is no scientific study or research work by any recognized scientific or medical body, or for that matter any other material, to show any causal connection existing between decriminalization of homosexuality and the spread of HIV/AIDS.”
  7. Addressing the last issue of the case, the Court observed that, popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality. The Constitution of India recognizes, protects and celebrates diversity. To stigmatize or to criminalize homosexuals only on account of their sexual orientation would be against the constitutional morality.

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