Naz Foundation v. Govt. of NCT of Delhi

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Naz Foundation v. Govt. of NCT of Delhi
Emblem of India.svg
Court Delhi High Court
Decided2 July 2009
Citation(s)160 Delhi Law Times 277
Court membership
Judge(s) sittingChief Justice Ajit Prakash Shah
Justice S. Muralidhar
Laws applied
Overruled by
Suresh Kumar Koushal v. Naz Foundation by Supreme Court of India
Keywords
Criminalization of Homosexuality

Naz Foundation v. Govt. of NCT of Delhi (2009) [1] is a landmark Indian case decided by a two-judge bench of the Delhi High Court, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India's Constitution. The verdict resulted in the decriminalization of homosexual acts involving consenting adults throughout India. This was later overturned by the Supreme Court of India in Suresh Kumar Koushal vs. Naz Foundation, in which a 2 judge bench reinstated Section 377 of the Indian Penal Code. However, even that was overturned by a 5 judge bench in Navtej Singh Johar v. Union of India in 2018, decriminalizing homosexuality once again. [2]

Contents

Facts

Section 377 of the Indian Penal Code, introduced during British rule of India, criminalizes "carnal intercourse against the order of nature". This phrase was interpreted to mean all forms of sexual activity other than heterosexual penile-vaginal intercourse. [3]

The movement to repeal Section 377 was led by the Naz Foundation (India) Trust, a non-governmental organization, which filed a lawsuit in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults. [4] This was the second such petition, the first filed in 1994 by AIDS Bhedbhav Virodhi Andolan. [5] 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. [6]

In 2006, the National AIDS Control Organisation filed an affidavit stating that the enforcement of Section 377 violates LGBT rights. [7] Subsequently, 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. [8]

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. [9] 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. [10]

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. [11] 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. [12] 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. [13]

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. [14]

Significance

According to an eyewitness account, as the Chief Justice read out the conclusion, "an audible gasp went around the room. By the time the Chief Justice had finished reading the conclusion of the judgment, people were openly weeping and there were handshakes and hugs all around." [15] Within hours, news of the judgment was being carried by international news sites. Lawrence Liang called it India's Roe moment. [16] Activists, [17] commentators and organizations like UNAIDS [18] lauded the decision, while some religious leaders [19] and politicians [20] voiced displeasure over the judgment.

Some special leave petitions were filed in the Supreme Court requesting an interim stay of the judgment, pending an appeal. However, the Supreme Court rejected those requests. [21] A batch of appeals were filed with the Supreme Court, challenging the Delhi High Court judgment. On 27 March 2012, the Supreme Court reserved verdict on these. [22] After initially opposing the judgment, the Attorney General G. E. Vahanvati decided not to file any appeal against the Delhi High Court's verdict, stating, "insofar as [Section 377 of the Indian Penal Code] criminalises consensual sexual acts of adults in private [before it was struck down by the High Court] was imposed upon Indian society due to the moral views of the British rulers." [22]

On 11 December 2013, the Supreme Court's two member bench (Justices G. S. Singhvi and S. J. Mukhopadhaya) overturned the decision of the Delhi High Court. It said that the 2009 order of the High Court is "constitutionally unsustainable as only Parliament can change a law, not courts". [23]

But, on 6 September 2018, a five judge constitutional bench of the Supreme Court of India, in a landmark judgement, decriminalized homosexuality and banned discrimination based on sexual orientation. [24]

2 July has been celebrated as the Indian Coming Out Day to mark the date of this judgement. [25] [26]

See also


Similar landmark decisions

Related Research Articles

Section 377A was a Singaporean law that criminalised sex between consenting adult males. It was introduced under British colonial rule in 1938 when it was added to the Penal Code by the colonial government. It remained a part of the Singapore body of law after the Penal Code review of 2007 which removed most of the other provisions in Section 377. It was subsequently repealed in its entirety in 2023.

Section 377 of the British colonial penal code criminalized all sexual acts "against the order of nature". The law was used to prosecute people engaging in oral and anal sex along with homosexual activity. As per Supreme Court Judgement since 2018, Indian Penal Code Section 377 is used to convict non-consensual sexual activities among homosexuals with a minimum of ten years imprisonment extended to life imprisonment. It has been used to criminalize third gender people, such as the apwint in Myanmar. In 2018, then British Prime Minister Theresa May acknowledged how the legacies of British colonial anti-sodomy laws continue to persist today in the form of discrimination, violence, and death.

Homosexuality in India is legally permitted and tolerated by the most of the traditional native philosophies of the nation, and legal rights continue to be advanced in mainstream politics and regional politics. Homosexual cohabitation is also legally permitted and comes with some legal protections and rights.

<span class="mw-page-title-main">LGBT rights in India</span>

Lesbian, gay, bisexual, and transgender (LGBT) rights in India have expanded in the 21st century, though much of India's advancements on LGBT rights have come from the judiciary and not the legislature. Indian LGBT citizens still face social and legal difficulties not experienced by non-LGBT people.

<i>National Coalition for Gay and Lesbian Equality v Minister of Justice</i> South African legal case

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution – and in particular its explicit prohibition of discrimination based on sexual orientation – the court unanimously ruled that the crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.

<span class="mw-page-title-main">Sodomy law</span> Laws criminalising certain sexual acts

A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood and defined by many courts and jurisdictions to include any or all forms of sexual acts that are deemed to be "illegal", "illicit", "unlawful", "unnatural" and/or "immoral". Sodomy typically includes anal sex, oral sex, manual sex, and bestiality. In practice, sodomy laws have rarely been enforced to target against sexual activities between individuals of the opposite sex, and have mostly been used to target against sexual activities between individuals of the same sex.

The Naz Foundation (India) Trust is a non-governmental organisation (NGO) in that country that works on HIV/AIDS and sexual health. It is based in the Indian capital of New Delhi.

<span class="mw-page-title-main">LGBT history in India</span>

LGBTQ people are well documented in various artworks and literary works of Ancient India, with evidence that homosexuality and transsexuality were accepted by the major dharmic religions. Hinduism and the various religions derived from it were not homophobic and evidence suggests that homosexuality thrived in ancient India until the medieval period. Hinduism describes a third gender that is equal to other genders and documentation of the third gender are found in ancient Hindu and Buddhist medical texts. The term "third gender" is sometimes viewed as a specifically South Asian term, and this third gender is also found throughout South Asia and East Asia.

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G.S. Singhvi is a retired judge of the Supreme Court of India. He retired on 11 December 2013.

Sudhansu Jyoti Mukhopadhaya is a former justice of the Supreme Court of India. He was also chair of the National Company Law Appellate Tribunal from 1 June 2016 to 14 March 2020. He previously served as Chief Justice of Gujarat High Court and also served as acting Chief Justice at the Jharkhand High Court and the Madras High Court.

<span class="mw-page-title-main">LGBT rights in Kerala</span>

Lesbian, gay, bisexual and transgender (LGBT) people in Kerala face legal and social difficulties not experienced by non-LGBT persons. However, Kerala has been at the forefront of LGBT issues in India after Tamil Nadu. It became one of the first states in India to establish a welfare policy for the transgender community and in 2016, proposed implementing free gender affirmation surgery through government hospitals. Same-sex sexual activity has been legal since 2018, following the Supreme Court ruling in Navtej Singh Johar v. Union of India. In addition, numerous LGBT-related events have been held across Kerala, including in Kochi and Thiruvananthapuram. However, there is also increasing opposition to LGBT rights recently as evidenced by the anti-LGBT campaigns spearheaded by meninist groups and Muslim organisations like Indian Union Muslim League, Samastha and Jamaat-e-Islami.

<i>Suresh Kumar Koushal v. Naz Foundation</i> Indian LGBT Rights Case

Suresh Kumar Koushal &Anr. v. NAZ Foundation &Ors.(2013) is a case in which a 2 judge Supreme Court bench consisting of G. S. Singhvi and S. J. Mukhopadhaya overturned the Delhi High Court case Naz Foundation v. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code. The Supreme Court of India decided to revisit this judgement after several curative petitions were filed against it, in 2017. Thereby in 2018, Navtej Singh Johar v. Union of India, a 5 judge bench of the Supreme Court overturned this judgement, decriminalizing homosexuality. Portions of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain in force.

Tamil sexual minorities are Tamil people who do not conform to heterosexual gender norms. They may identify as LGBTQIA. It has been estimated that India has a population of 2.5 million homosexuals, though not all of them are Tamil, and not all Tamils live in India.

The following list is a partially completed compilation of events considered to have a profound effect on the welfare or image of Tamil sexual minorities. The use of bold typeface indicates that the event is widely considered to be landmark:

<i>Navtej Singh Johar v. Union of India</i> Indian LGBT Rights Case Law

Navtej Singh Johar &Ors. v. Union of India thr. Secretary Ministry of Law and Justice (2018) is a landmark decision of the Supreme Court of India that decriminalised all consensual sex among adults, including homosexual sex.

Arundhati Katju is a lawyer qualified to practice in India and New York. She has litigated many notable cases at the Supreme Court of India and the Delhi High Court, including the Section 377 case, the case of a trans man being illegally confined by his parents, the Augusta Westland bribery case, the 2G spectrum corruption case and the Jessica Lal murder case. Her law practice encompasses white-collar defence, general civil litigation, and public interest cases.

<span class="mw-page-title-main">Indradhanu</span> A queer social club in India

Indradhanu is the official LGBTQIA+ collective of Indian Institute of Technology Delhi. The student-driven collective aims to create a safe space for LGBT+ persons in the institute's campus. Members from Indradhanu have also been petitioners in the decriminalisation of homosexuality in India. In December 2021, it was accorded official recognition by the college administration. It now holds a nominated position in the Student Affairs Council of IIT Delhi and works with the office of Diversity and Inclusion, IIT Delhi.

Saurabh Kirpal is an Indian lawyer, author and a senior advocate at the Delhi High Court. He is also an LGBTQ rights activist.

References

  1. ↑ Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277 (Delhi High Court 2009) Archived 26 August 2009 at the Wayback Machine
  2. ↑ Safi, Michael (6 September 2018). "Campaigners celebrate as India decriminalises homosexuality". the Guardian. Retrieved 7 September 2018.
  3. ↑ Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277, p. 2 Archived 29 October 2009 at the Wayback Machine (Delhi High Court 2009)
  4. ↑ "Chronology: 8-year-long legal battle for gay rights". CNN-IBN. Archived from the original on 5 July 2009. Retrieved 2 July 2009.
  5. ↑ Fernandez, Bina, ed. (1999). Humjinsi: A Resource Book on Lesbian, Gay and Bisexual Rights in India. Mumbai: India Centre for Human Rights and Law. p. 35.
  6. ↑ Sheela Bhatt (3 February 2006). "Gay Rights is matter of Public Interest: SC". Rediff News. Retrieved 7 July 2009.
  7. ↑ "Govt's AIDS cell pushes to legalise homosexuality". The Times of India . 20 July 2006. Archived from the original on 25 October 2012. Retrieved 27 November 2009.
  8. ↑ Shibu Thomas (20 May 2008). "Delhi HC to take up PIL on LGBT rights". The Times of India . Archived from the original on 25 October 2012. Retrieved 7 July 2009.
  9. ↑ "Delhi High Court legalises consensual gay sex". CNN-IBN. Archived from the original on 5 July 2009. Retrieved 2 July 2009.
  10. ↑ Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277, p. 48 Archived 29 October 2009 at the Wayback Machine (Delhi High Court 2009)
  11. ↑ Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277, p. 91 Archived 29 October 2009 at the Wayback Machine (Delhi High Court 2009)
  12. ↑ Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277, p. 104 Archived 29 October 2009 at the Wayback Machine (Delhi High Court 2009)
  13. ↑ Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277, p. 72 Archived 29 October 2009 at the Wayback Machine (Delhi High Court 2009)
  14. ↑ Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277, p. 132 Archived 29 October 2009 at the Wayback Machine (Delhi High Court 2009)
  15. ↑ Bhardwaj, Kajal (7 May 2009). "Reforming Macaulay". Deccan Chronicle. Retrieved 27 November 2009.
  16. ↑ Raghavan, Vikram. "Navigating the Noteworthy and Nebulous in Naz Foundation" . Retrieved 27 November 2009.
  17. ↑ "Gay sex judgment greeted with delight and jubilation". The Hindu . Chennai, India. 4 July 2009. Archived from the original on 7 July 2009. Retrieved 27 November 2009.
  18. ↑ Aarti, Dhar (3 July 2009). "Judgment on Section 377 welcomed". The Hindu . Chennai, India. Archived from the original on 6 July 2009. Retrieved 27 November 2009.
  19. ↑ Khan, Atiq (3 July 2009). "Muslim clerics feel family system will be destroyed". The Hindu . Chennai, India. Archived from the original on 6 July 2009. Retrieved 27 November 2009.
  20. ↑ Hunasavadi, Srikanth (7 August 2009). "Decriminalising homosexuality will send wrong signals". DNA . Retrieved 27 November 2009.
  21. ↑ "SC declines to stay HC verdict on homosexuality". The Indian Express . 20 July 2009. Retrieved 27 November 2009.
  22. 1 2 "Verdict reserved on appeals in gay sex case". The Hindu. New Delhi, India. 27 March 2012. Retrieved 3 October 2012.
  23. ↑ "Supreme Court says gay sex is a criminal offence, activists to seek review". 11 December 2013.
  24. ↑ Safi, Michael (6 September 2018). "Campaigners celebrate as India decriminalises homosexuality". the Guardian. Retrieved 7 September 2018.
  25. ↑ "Chennai's LGBTQIA+ community is coming out in order to take down Section 377". Edex Live. Retrieved 3 July 2023.
  26. ↑ "Indian Coming Out Day". DNA India. Retrieved 3 July 2023.
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