Naz Foundation v. Government of NCT of Delhi and Others, The High Court of Delhi at New Delhi, India (2 July 2009)
In 2001 a writ petition was filed by Naz Foundation, an NGO working in the public health field, to challenge the constitutionality of Section 377 of the Indian Penal Code, which criminalised as “unnatural offences” consensual oral and anal sex between adults in private. In 2004, the Delhi High Court dismissed the writ petition on the ground that it could not hear an academic challenge to the constitutionality of the legislation. Naz Foundation appealed to the Supreme Court, which held that the matter should be heard and remanded it for consideration. Voices Against 377, a coalition of associations representing the human rights of children, women and LGBT people, intervened in support of the petitioner. The respondent, Union of India, was represented by the Ministry of Home Affairs and the Ministry of Health & Family Welfare. However, the government position split and the Ministry of Health & Family Welfare argued in favour of the petitioner.
Whether Section 377 infringed fundamental rights guaranteed under the Constitution of India.
Constitution of India, Articles 14 (equality and equal protection), 15 (non-discrimination), and 21 (right to life and liberty).
Bowers v. Hardwick, United States Supreme Court, 1986 (upholding constitutionality of State law criminalising sodomy; Justice Blackmun dissenting).
Corbiere v. Canada, Supreme Court of Canada, 1999 (noting that recognition of analogous ground involves considering whether differential treatment of persons defined by a characteristic or combination of traits has the potential to violate human dignity in the sense underlying s. 15(1) of the Canadian Charter of Rights and Freedoms).
Egan v. Canada, Supreme Court of Canada, 1995 (establishing that sexual orientation constituted a prohibited ground of discrimination under Section 15 of the Canadian Charter of Rights and Freedoms).
Eisenstadt v. Baird, United States Supreme Court, 1972.
Griswold v. Connecticut, United States Supreme Court, 1965.
In re Blue Diamond Society, Supreme Court of Nepal, 2008 (finding that laws and practices which discriminated against sexual minorities and third gender people were unconstitutional).
Lawrence v. Texas, United States Supreme Court, 2003 (affirming that same-sex sexual conduct between consenting adults was part of the liberty protected by the substantive due process clause of the 14th Amendment to the federal Constitution and striking down Texas’ sodomy law).
Leung v. Secretary for Justice, High Court of the Hong Kong Special Administrative Region, Court of Appeal, 2006 (finding differential age of consent for same-sex sexual conduct to be unconstitutional).
McCkoskar and Nadan v. State, High Court of Fiji, 2005 (finding sodomy laws to be unconstitutional in violation of rights to privacy and equality).
National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, 1998 (finding unconstitutional statutory and common law offences of sodomy).
Olmstead v. United States, United States Supreme Court, 1928 (dissent of Justice Brandeis).
Planned Parenthood of Southeastern Pa v. Casey, United States Supreme Court, 1992.
Roe v. Wade, United States Supreme Court, 1973.
Romer v. Evans, United States Supreme Court, 1996 (finding unconstitutional a State constitutional amendment that withdrew a specific class of people – gays and lesbians – from the protection of the law without a legitimate States purpose, in violation of the equal protection clause of the federal Constitution).
Vriend v. Alberta, Supreme Court of Canada, 1998 (holding that sexual orientation was a ground analogous to those listed in section 15(1) of the Canadian Charter of Rights and Freedoms).
Dudgeon v. United Kingdom, ECtHR, 1981 (finding that the sodomy laws of Northern Ireland violated the right to privacy under the European Convention).
Modinos v. Cyprus, ECtHR, 1993 (finding that the sodomy laws of Cyprus violated the right to privacy under the European Convention).
Norris v. Ireland, ECtHR, 1988 (finding that the sodomy laws of Ireland violated the right to privacy under the European Convention).
Toonen v. Australia, United Nations Human Rights Committee, 1994 (finding that the sodomy laws of Tasmania violated the rights to privacy and non-discrimination under the ICCPR).
Reasoning of the Court
Naz Foundation presented evidence that Section 377, which had been interpreted by Indian courts to cover both oral and anal sex regardless of the sex of the partners, caused discrimination and stigma against gay, transgendered, and “men who have sex with men” (MSM) communities. As a result of Section 377, individuals were subjected to police abuse and violence. Section 377 impeded Naz Foundation’s public health efforts, particularly in the field of HIV/AIDS prevention. Naz Foundation argued that the right to privacy was implicit in Article 21’s guarantee of the right to life and liberty and that private consensual sexual conduct was included within this right to privacy. The petitioner further maintained that Section 377 violated Article 14 (equal protection) because it failed the rational nexus test and created an arbitrary distinction between procreative and non-procreative sexual acts. Finally, the petitioner argued that Section 377 discriminated on the basis of sexual orientation and thus violated Article 15.
Voices Against 377 submitted evidence of the extreme ostracism of the gay community and used affidavits, media reports, and court cases to document exploitation, mistreatment, and violence at the hands of both State and non-State actors. Voices Against 377 also introduced into evidence a variety of law review articles and public statements by Indian officials. Many of these exhibits were quoted or referred to throughout the judgment.
The Ministry of Home Affairs justified retention of Section 377 on the grounds of protection of health and morals. It also asserted that Section 377 was mostly invoked in cases of child sexual abuse, not adult consensual sex, and submitted that removing the provision would “open flood gates of delinquent behavior” and could be “misconstrued as providing unfettered license for homosexuality”. With respect to morality, the Ministry of Home Affairs argued that “the legal conception of crime depends upon political as well as moral considerations” and that law could not run separately from society. It claimed that India was a more conservative society than other countries that had decriminalised homosexual conduct and that Indian society had yet to demonstrate “readiness or willingness to show greater tolerance”.
The Court first discussed the protection of dignity, autonomy, and privacy. It found that although there was no specific privacy provision in the Constitution, the right had been read into Article 21. It reviewed American jurisprudence on privacy, beginning with Griswold v. State of Connecticut and continuing through Lawrence v. Texas. Quoting Justice Ackermann in National Coalition for Gay and Lesbian Equality v. Minister of Justice, the Court observed that expressing one’s sexuality and forming sexual relationships was “at the core of this area of private intimacy”.
The Court accepted that sexual conduct was about identity as well as privacy. Relying on a variety of sources, including the Yogyakarta Principles, the Court noted that “the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes”. The Court concluded that Section 377 “denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality”. This criminalisation of identity denied “a gay person a right to full personhood which is implicit” in the notion of life under Article 21.
The Court was concerned with the stigmatising effects of Section 377 even when it was not enforced. Referring to evidence that showed Section 377 was used to brutalise and harass, the Court compared the criminalisation of identity to the Criminal Tribes Act 1871. “These communities and tribes were deemed criminal by their identity, and mere belonging to one of those communities rendered the individual criminal.”
To respond to Ministry of Home Affairs’ protection of public health argument, the Court relied on statements by UNAIDS and the United Nations General Assembly Special Session on HIV/AIDS, and the affidavit submitted by the Ministry of Health & Family Welfare through its agency the National AIDS Control Organisation (NACO). It found that the submissions made by the Ministry of Home Affairs were not supported by the record. In contrast, the affidavit of NACO stated that “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 … NGOS working in the field of HIV/AIDS prevention and health care [are] being targeted and their staff arrested”. Since the Ministry of Home Affairs argued that Section 377 was not often enforced against consensual adult sexual conduct, the Court, citing Toonen v. Australia, concluded that it could not be deemed essential for the protection of morals or public health and thus failed the reasonableness test.
When a provision infringes a fundamental right, it must satisfy the compelling State interest test. The Court held that the enforcement of public morality did not amount to a compelling State interest that justified invading the privacy of adults engaged in consensual sex in private who had no intention to cause harm. In so holding, it relied on O’Connor’s concurrence in Lawrence, the European Court cases, the Wolfenden Committee Report, and India’s Constitutional Assembly Debates. “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, the Court recalled, recognised, protected, and celebrated diversity. “To stigmatise or to criminalize homosexuals only on account of their sexual orientation would be against the constitutional morality.”
The Court next found that Section 377 violated the guarantee of equality under Article 14 and the guarantee of non-discrimination under Article 15. For a legislative classification to be constitutional, it must be “founded on an intelligible differentia” and have a rational relation to the objective sought. The Court held that the law failed this test because its objective (enforcement of public morality) was irrational, unjust, and unfair. Under Article 15, the Court concluded that “sexual orientation” was analogous to the protected ground of “sex”. Because Article 15 prohibited private acts of discrimination, the Court held that discrimination on the ground of sexual orientation was impermissible “even on the horizontal application of the right”.
Naz Foundation v. Government of NCT of Delhi and Others, The High Court of Delhi at New Delhi, India (full text of judgment, PDF)