Bench:

• Ajit Prakash Shah
• S. Muralidhar

Facts:

v  Section 377 of the Indian Penal Code, which was implied and introduced during the colonial rule in india, criminalizes “carnal intercourse against the order of nature”. This phrase was interpreted and to mean all variations and kinds of sexual activity except heterosexual penile-vaginal intercourse.

v  The movement to remove Section 377 was led by the Naz Foundation Trust, a non-governmental organization (NGO). They filed a lawsuit in the delhi High Court in 2001, looking for the legalisation of homosexual intercourse between two consentful adults

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v  This was the second petition of its kind, the first one being filed in 1994 by AIDS Bhedbhav Virodhi Andolan.

v  In 2003, the Delhi High Court denied to consider a petition concerning the legality of the law, stating that the petitioners had no locus standi in this matter.

v  The Naz Foundation then turned to the Supreme Court of India against the decision of the High Court to dismiss and neglect their petition on technical grounds.

v  The Supreme Court decided and hereby stated that the Naz Foundation had the legality and 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 basis of merits.

v  In 2006, the National AIDS Control Organisation also filed an affidavit saying that the enforcement and implication of Section 377 violates the rights of the LGBT community.

v  Simultaneously, there was a significant and important intervention in the case by a Delhi-based coalition of LGBT, womenand human rights activists called “Voices Against 377”, who supported the demand to “read down” and do away with section 377 to exclude adult consensual sex fromits perception.

Petitioner's Contention:

v  The Naz Foundation 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, 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.

v  They further arguedand submitted that the right to non-discrimination on the basis of sex in Article 15 should not be read restrictively and obstructively but should include “sexual orientation”.

v  They argued that the Constitution protected the right to privacyunder the right to life and liberty enunciated in Article 21.

v  They also held that the criminalisation of homosexual activity and actions by Section 377 was discriminatory on the basis of sexual orientation and was hence contraryto the Constitutional guarantee of non-discrimination under Article 15 of the Indian Constitution. This section aims at promoting safe sex practices.

v  Lastly, the Naz foundation enunciated 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 stated that government cannot make private sexual behavior criminal when there is no overriding compelling state interest.

Respondent's Contention:

v  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 what came as a surprise was that the two ministries opposed each other in terms of the legal argument submitting two “completely contradictory affidavits”.

v  The MHA, argued for the retention of Section 377 on several grounds. First, that it provided for the prosecution of individuals for the sexual abuse of children. Second, that it filled a gap in the rape laws. Third, that if removed it would provide for “flood gates of delinquent behaviour” which would not be in the public interest. Finally, MHA submitted that Indian society does not morally condone such behaviour and law should reflect societal values such as these.

v  In contrast, the Ministry of Health and Family Welfare (with association from the National Aids Control Organisation) submitted evidence in support of the Naz Foundation’s plea– that the existence of section 377 is counterproductive to the efforts of HIV/AIDS prevention and treatment for the same.

v  They argued for the removal of Section 377 saying that it makes a large stratum of people in high risk categories in relation to HIV/AIDS reluctant to come forward for treatment due hesitance or because of fear of law enforcement agencies, and that in driving homosexuality underground it increases promiscuous behaviour that is of unprotected sex.

Judgement:

The case came up for hearing before a bench comprising Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, and the judgment was delivered on 2 July 2009. The Court located the rights to dignity and privacy within the right to life and liberty guaranteed by Article 21 (under the fundamental Right to Freedom charter) 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 (under the fundamental Right to Equality charter) 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.

Relevant Paragraph:

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.