Issue:

• Regardless of whether Section 377 infringed fundamental rights ensured under the Constitution of India.

Naz Foundation v/s Govt of Delhi & Ors
On 02 July, 2009
High Court of Delhi
Equivalent citations: 160 Delhi Law Times 277
Bench: Chief Justice Ajit, Prakash Shah (J), S.Muralidhar

Facts
This case concerned a writ appeal (a public interest action taken under the watchful eye of the court) brought by an Indian NGO working with HIV/AIDS victims which contended that Section 377 of the Indian Penal Code was unlawful and illegal.

Section 377 named "Of Unnatural Offenses" has satisfactorily been unravelled as denouncing consensual sexual acts between individuals of a comparative sex. Section 377 states: "Whoever intentionally has carnal intercourse against the order of nature with any man, woman or animal, will be rebuffed with [imprisonment for life], or with imprisoned for either. Description for term which may loosen up to ten years, and will moreover be liable to fine." The Naz Foundation and others presented that this understanding of Section 377 abused the fundamental rights ensured under Articles 14, 15, 19 and 21 of the Constitution of India.

The Foundation brought the action in the public interest in light of the fact that it's work on battling the spread of HIV/AIDS was being hampered by discrimination against the gay community. This discrimination, the petitioners submitted, resulted in the denial of fundamental human rights, misuse, provocation and attack by public authorities, accordingly driving the gay community underground and exposing them to more prominent weakness disregarding their fundamental rights.

Legal Arguments
Petitioner
The petitioner, the Naz Foundation, presented that the harassment and discrimination of the gay and transgender community in India coming about because of the proceeded with presence of Section 377 of the Indian Penal Code [IPC] influenced the rights of that community ensured under the Constitution, including the right to equality, the right to non-discrimination, the right to privacy, right to life and liberty, and also the right to health.

They contended that the Constitution secures the right to privacy (which isn't explicitly referenced) under the right to life and liberty revered in Article 21. Besides, they presented that the privilege to non-discrimination on the grounds of sex in Article 15 ought not be peruse prohibitively however ought to incorporate 'sexual orientation'.

They likewise fought that the criminalisation of homosexual activity by Section 377 segregated on the grounds of sexual orientation and is accordingly in opposition to the Constitutional guarantee to non-discrimination under Article 15. At last, the petitioner set forward that courts in other jurisdictions have struck down comparable provisions identifying with sexual orientation because they violate the rights to privacy, dignity and equality.

Respondents
Two Government offices reacted to the request, be that as it may, as expressed by the High Court, they presented 'completely contradictory affidavits' (submissions).

• Ministry Of Home Affairs (MHA)
  The MHA argued in favour of retention of Section 377 on a few grounds. In the first place, that it accommodated the arraignment of people for the sexual abuse of children. Second, that it filled a hole in the rape laws. Third, that whenever eliminated it would accommodate 'conduits of delinquent conduct' which would not be in the public interest. At last MHA presented, that Indian culture doesn't ethically excuse such conduct and law ought to reflect cultural qualities like these.
  
  For MHA, the Additional Solicitor General [ASG] submitted, because of cases of a right to privacy, that such a right isn't supreme and can be limited where there is a convincing state interest in doing as such, like public decency and morality. Besides, he contended that Section 377 doesn't discriminate on the grounds of sex since it is sex unbiased.

Interveners

• National Aids Control Organization (Naco) And The Ministry Of Health And Family Welfare
  NACO responded for the Ministry of Health and presented proof on the side of the petitioner's submission that the proceeded presence of Section 377 is counter-gainful to the endeavours of HIV/AIDS counteraction and treatment. NACO contended for the evacuation of the part expressing that it makes an enormous number of individuals in high danger classes comparable to HIV/AIDS hesitant to approach because of a dread of law authorization organizations, and that in driving homosexuality underground it increments dangerous conduct like unprotected sex.
   
• 'Voices Against Section 377 IPC'
  An alliance of 12 NGOs submitted proof additionally on the side of the petitioner's arguments which show the high number of infringements of human rights endured by the LGBT community in India as a result of Section 377.

Reasoning
In this case, the court understood the true meaning of right to life and liberty which included the right to dignity and privacy under the fundamental Right to Freedom charter of the Constitution, and so the court decided that criminalisation of consensual gay sex violated these rights.

The court also reasoned with the fact that Section 377 disturbs the guarantee of equality ensured in Article 14 of the Constitution because it targets homosexual as a different class. Public disgust towards a particular class is not a reasonable ground for classification under Article 14. Article 15 of the Constitution discourages discrimination on the basis of certain characteristics like "sex".

The court also reasoned that the word "sex" does not only include biological sex but sexual orientation too and that is why discrimination on the basis of sexual orientation is not allowed under Article 15. The court also decided that the right to life under Article 21 also involves the right to health and inferred that Section377 is an obstacle to public health because it obstructs HIV- prevention efforts.

The Court did not scrape down Section 377 altogether. It is just that now Section 377 is not applicable to consensual homosexual sex between two adults in private.

Decision
The High (Court) initially emphasized the test for any law which meddles in close to personal liberty, as set out in Maneka Gandhi vs. Union of India (1978) 1 SCC 248: that

1. There should be a procedure;
2. that procedure should be tried against at least one of the fundamental rights presented under Article 19 which are applicable;
3. it is additionally susceptible to be tested against Article 14, and should be right, just, reasonable and not discretionary.

Right To Privacy

The Court noticed that the Indian Constitution doesn't contain an unequivocal arrangement corresponding to the right to privacy, anyway the Supreme Court has interpreted a right based on Article 19 that the Court noticed that the Indian Constitution doesn't contain an unequivocal arrangement corresponding to the right to privacy protecting freedom of expression and movement, and Article 21 protecting the right to life and liberty.

The Court made broad reference to United States law on the right to privacy as read into the Constitution, including Roe v. Swim 41 US 113 (1973) and Planned Parenthood of South-eastern Pa v. Casey 505 US 833 (1992). It at that point proceeded to consider the improvement of this right in India including the case of Kharak Singh v. The State of U.P. (1964) 1 SCR 332, which followed the right to privacy in India to right to 'life' in Article 21 of the Constitution.

Likewise, the Court alluded to specific rights of persons of various sexual orientation in this regard by reference to the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity, which the Court noted states the rights to equivalent enjoyment of rights of all persons paying little heed to their sexual orientation. Checking out these arrangements, the Court inferred that Section 377 denies the dignity of such individuals, condemns their character and abuses their entitlement to security which is ensured inside the ambit of Article 21 of the Constitution.

In making this discovering the Court excused the contentions of the MHA that the decriminalization of homosexuality will prompt the expansion of HIV/AIDS on the premise that there was no clinical proof to support this contention. The Court likewise noticed that this case negated the contentions made by NACO and the Ministry of Health and Family Welfare.

As for the public morality contentions set forward by the respondents the Court, referring to the European Court of Human Rights jurisprudence of Dudgeon v. The United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), and Norris v. Republic of Ireland, 142 Eur. Ct. H.R. (ser. A) (1988), expressed that simple public dissatisfaction or popular morality is certifiably not an adequate reason for setting such limitations on the enjoyment of fundamental rights. The Court stated that the only morality which matters is Constitutional morality.

The Court determined that the Constitution of India protects and promotes diversity and guarantees an egalitarian society where freedom is no longer a privilege. The Court decided that criminalisation of homosexuality contradicts that Constitutional morality.

Article 14 And Equality

The Court repeated the test set by Article 14 that any qualification or order be founded on a clear differentia which has a rational relation to the objective sought and is not unfair or then again unjustifiable. Section 377, the Court said, doesn't recognize between public and private acts, or among consensual and non-consensual acts hence doesn't consider important factors like age, assent and the nature of the act or absence of harm. The Court expressed that such criminalisation without proof of mischief appeared to be self-assertive and absurd.

In considering the legal principles forced by Article 14 of the Constitution the Court took into account the Declaration of Principles of Equality "as current international understanding of Principles on Equality". Drawing on Principles 1 (right to equality), 2 (equivalent treatment) and 5 (definition of discrimination) the Court underscored the need to incorporate sexual orientation among secured grounds of discrimination and construct circuitous discrimination and harassment into any consideration into right to equality.

Accordingly, managing the contention that Section 377 was neutral, as presented by the MHA, the Court expressed that albeit the arrangement all over is unbiased and targets acts as opposed to people, in its operation it unfairly targets a particular community, having the outcome that all gay men are viewed as criminal. This droves the Court to infer that Section 377 discriminated against a specific community infringing upon Article 14 of the Constitution.

Article 15

Article 15 was portrayed by the Court as a specific use of the general right to equality under Article 14. The Court considered the petitioner's contention that the reference to 'sex' in Article 15 ought to be deciphered as remembering sexual orientation for the premise that discrimination on the grounds of the latter depends on stereotypes of conduct based on sex. The Court itself alluded 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 Tasmanian Criminal Code which criminalised sexual acts between men, was viewed as an infringement of Article 2 of the International Covenant on Civil and Political Rights, where a reference to 'sex' was taken as counting sexual orientation.

On that premise the Court expressed that they hold that sexual orientation is a ground analogous from sex and that discrimination on the basis of sexual orientation isn't allowed by Article 15. Further, Article 15(2) fuses the thought of level use of rights. As such, it even precludes discrimination of one citizen by another in issue of admittance to public spaces. In our view, discrimination on the ground of sexual orientation is not permitted even on the horizontal application of the right revered under Article 15.

The Court thus found that Section 377 was unconstitutional based on Article 15 of the Constitution. In its decision, the Court alluded to the confidence in comprehensiveness which is instilled in the Indian Constitution and clarified that discrimination was the reverse of equality and that it is the identification of equality which will further the dignity of every individual. In the light of its discoveries on the infringement of Articles 21, 14 and 15, the Court discovered it superfluous to manage the issue of infringement of Article 19 of the Constitution. In aggregate, the Court proclaimed that Section 377 of the Indian Penal Code, to the extent that it condemns consensual sexual acts of adults in private, violates Articles 21, 14 and 15 of the Constitution.

Law
Legislation 

• Constitution Of India
  1. Article 14 (Equality before law);
  2. Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth);
  3. Article 19 (Protection of certain rights regarding freedom of speech, etc.);
  4. Article 21 (Protection of life and personal liberty).
• Indian Penal Code 1861
  1. Section 377.
• Case Law: Indian
  1. Maneka Gandhi v. Union of India (1978) 1 SCC 248;
  2. Kharak Singh v. The State of U.P. (1964) 1 SCR 332;
  3. State of Madras v. V.G.Row AIR 1952 SC 196.2
• Case Law: International
  1. Roe v. Wade 41 US 113 (1973);
  2. Planned Parenthood of South-eastern Pa v. Casey 505 US 833 (1992);
  3. Dudgeon v. The United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981);
  4. Norris v. Republic of Ireland, 142 Eur. Ct. H.R. (ser. A) (1988);
  5. Toonen v. Australia, (No.488/1992 CCPR/C/ 50/D/488/1992, March 31, 1994).
• Other International Standards
  1. Declaration of Principles of Equality;
  2. Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity.