Naz Foundation v. Government of NCT of Delhi, et al.

Overruled by Suresh Kumar Koushal and Anor. v. Naz Foundation and Ors.

Section 377 of the Indian Penal Code, 1860 (the Section) penalized voluntary “carnal intercourse against the order of nature with any man, woman or animal” and described them as “unnatural offences.” An offence under this Section was non-bailable and carried a maximum punishment of life imprisonment.

Naz Foundation, the Petitioner, was an NGO working in the field of HIV/AIDS intervention and prevention. It filed a public interest litigation under Article 226 of the Constitution of India (original writ jurisdiction of High Courts) in the Delhi High Court challenging the constitutional validity of the Section. It contended that HIV/AIDS prevention efforts were being impaired by discriminatory attitudes of state agencies towards the gay community under the cover of enforcement of the Section. The Petitioner also contended that as a result men who have sex with men (MSM) were unable to enjoy fundamental rights guaranteed in the Indian Constitution under Articles 14 (right to equality), 15 (right not to be discriminated on the basis of, amongst other things, sex), 19 (fundamental freedoms including freedom of expression) and 21 (right to life, including the right to dignity and the right to privacy).

Two contradictory responses were submitted on behalf of the Union of India. One of the Respondents, the Ministry of Home Affairs (MHA) primarily argued that the Section reflected public morality which was a reasonable restriction under Article 19 of the Constitution. It also contended that the Section informed a “compelling state interest” on grounds of public health as instances of HIV/AIDS infection were highest amongst the gay community.

The Ministry of Health, through the National AIDS Control Organization (NACO), submitted the second response. It stated that MSM engaged in high risk activities and were “particularly susceptible to attracting HIV/AIDS.” It contended that the Section needed to be repealed as fear of law enforcement agencies was driving members of the gay community underground. According to NACO such laws suffocated proper HIV/AIDS intervention and prevention efforts. The MHA, on the other hand, stressed that since MSM indulged in high risk activities criminalization of homosexuality would ensure prevention of spread of HIV.

The petition was originally rejected by the High Court on the ground that the public interest litigation was based purely on an academic question. On appeal, the Supreme Court sent it back to the High Court to consider whether or not the Section was constitutionally valid.

The Court held that Section 377 violated the right to privacy under Article 21 of the Constitution. The Court placed reliance on The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, ((CCT11/98) (1998) ZACC 15) and held that “if in expressing one’s sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy".

Regarding the right to dignity, the Court held that the State could not decide partners for individuals as it was in violation of an individual’s autonomy. It further held that sexual orientation was part of an individual’s identity. Criminalizing sexual identity impacted an individual’s self esteem and was a violation of the right to dignity under Article 21.

In determining whether morality could act as a reasonable restriction on fundamental rights, the Court held that only "constitutional morality" could constitute a compelling state interest. The Court declared that "public morality or public disapproval" was "not a valid justification for restriction of the fundamental rights under Article 21." It further held that criminalizing homosexuals solely on the basis of their sexual orientation was against constitutional morality.

On the issue of “compelling state interest” and public health, the Court rejected the Respondent’s (MHA) argument that decriminalizing homosexuality would increase the spread of HIV/AIDS and noted that there was no scientific study to support this claim. The Court, instead, agreed with NACO and the Petitioner that the state’s interest would lie in facilitating access to prevention strategies by decriminalizing homosexuality. It held that the right to health as per Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) was part of the right to life under Article 21 of the Constitution. Agreeing with the Petitioner and NACO, the Court held that due to the fear of being penalized, MSM did not reveal themselves thereby staying beyond the reach of HIV/AIDS intervention and prevention programs. It, therefore, held that the Section acted as an impediment to India’s obligations under Article 21 of the Constitution and Article 12 of the ICESR as elaborated in General Comment 14 of the Committee on Economic, Social and Cultural Rights. Based on scientific evidence, the Court held that “homosexuality is not a disease or mental illness that needs to be, or can be, ‘cured’ or ‘altered’, it is just another expression of human sexuality.”

The Court then went on to answer whether the Section violated Article 14 of the Constitution (right to equality). The Court applied the twin tests of (i) intelligible differentia and (ii) rational nexus of the classification with the object sought to be achieved, which itself had to be reasonable, fair and just. It held that criminalization of private sexual relations between consenting adults which did not cause any harm made the objective of the Section arbitrary and unreasonable. It affected the dignity of homosexuals and lacked any legitimate state interest. The Court placed reliance on Lawrence v. Texas, (539 U.S. 558 (2003)) (concurring opinion of Justice Connor) and held that effectively the Section treated homosexuals as a class which led to their discrimination.

Regarding the fundamental right to not be discriminated on the basis of sex (Article 15), the Court held that sexual orientation was analogous to sex. Placing reliance on Corbiere v. Canada, ((1999) 2 S.C.R. 203), the Court held that a common factor in the categories in Article 15 was that they served as a “basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic” which was immutable.

The Court held that any provision which results in disadvantaging a vulnerable community or a law which discriminates on grounds mentioned in Article 15 would be subject to the test of strict scrutiny. On a strict scrutiny test and applying the doctrine of severability, the Court declared that the Section “insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.”

“In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises 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.” Para. 48

“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 recognised scientific or medical body, or for that matter any other material, to show any causal connection existing between decriminalisation of homosexuality and the spread of HIV/AIDS.” Para. 72

“Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention.” Para. 73

“[P]opular 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.” Para. 79

“The impugned provision in Section 377 IPC criminalises the acts of sexual minorities particularly men who have sex with men and gay men. It disproportionately impacts them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. Section 377 IPC in its application to sexual acts of consenting adults in privacy …discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited ground of sex. A provision of law branding one section of people as criminal based wholly on the State's moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review.” Para. 113