Naz Foundation Case Study

The Naz Foundation India, a non-governmental organization committed to HIV/AIDS intervention and prevention, filed a public interest litigation in the Delhi High Court challenging the constitutionality of Section 377 of the India Penal Code, which makes it illegal to engage in any "unnatural" sexual act, defined as sex other than heterosexual intercourse. The Delhi High Court dismissed the original writ of petition in 2004 for lack of a cause of action. However, on civil appeal the Supreme Court of India set aside the dismissal and ordered the Delhi High Court to hear the petition on the merits. The petitioner argued that Section 377 encouraged discriminatory attitudes, abuse, and harassment of the gay community, and significantly impaired HIV/AIDS prevention efforts and access to treatment. The National AIDS Control Organization (NACO) under the Ministry of Health supported the petitioners in their response.  

The Court found in favour of the petitioner and held that Section 377 was unconstitutional. First, the Court found it violated the right to dignity and privacy by citing the Universal Declaration of Human Rights and European Court of Human Rights as well as the case of Francis Coralie Mullin[1] in which the Indian Constitutional Court defined dignity as requiring adequate shelter, nutrition, clothing as well as the ability to freely socialize. Next, the Court held that under Article 12 of the ICESCR and Article 21 of the Indian Constitution, the state must fulfil "everyone's right to access the highest attainable standard of health" as part of the right to life. The Court agreed that criminalization of homosexual conduct pushes homosexuals into isolation and impedes access to adequate information for prevention of HIV/AIDS.

The Court also cited General Comment 14 to the ICESCR in defining the right to adequate health as including the right to control one's health and body, including sexual reproductive freedom, the right to be free from interference, and most importantly non-discrimination and equal treatment with regards to accessing healthcare. Finally, the Court cited numerous other international treaties and agreements to which India is a party that specifically declare a commitment on the part of India to address the needs and rights of groups with a high-risk of contracting HIV/AIDS.  After engaging in an analysis of the purpose of the law and the interests of state as weighed against the rights of the petitioners, the Court found no legitimate state interest in upholding the statute and found the classification of homosexuals to be in violation of the Constitution.  Further, in light of the evolution of domestic and international law regarding privacy, dignity, and the right to health as well as changing social attitudes and understandings of sexual orientation, the Court found section 377 to be an unconstitutional infringement on fundamental rights. 

Keywords: Naz Foundation v. Government of NCT of New Delhi and Others, WP(C) No. 7455/2001, HIV/AIDS

[1] Francis Coralie Mullin v. Administrator, Union of Dehli and Others, (1981) 2 SCR 516.

The Naz Foundation (India) Trust, the original petitioner in the constitutional challenge to Section 377, IPC, has filed a petition seeking review of the judgment of the Hon'ble Supreme Court in Suresh Kumar Koushal v. Naz Foundation (India) Trust (Civil Appeal No. 10972 of 2013). On 11th December, 2013, the Hon'ble Supreme Court, in a regressive decision, has upheld the validity of Section 377, IPC that criminalises all penile non-vaginal sexual acts between consenting adults and has set aside the judgment of Delhi High Court of 2009 that had decriminalized adult consensual sexual acts in private.
Represented by Lawyers Collective, the Petition argues that there are a number of grave and manifest errors of law and wrong application of law in the impugned judgment that need to be corrected under review by this Hon'ble Court. The judgment is contrary to the grain of Hon'ble Supreme Court's own jurisprudence on advancement of fundamental rights and freedoms of all persons, especially those who face marginalisation in society. It completely dismisses the foreign jurisprudence from all over the world and international human rights law on sexual orientation and gender identity. Reliance on the principles of judicial restraint and Parliament's prerogative to change laws is misplaced, when the law has been challenged for violation of fundamental rights of individuals, as is being done in the present case.
Seeking an interim stay on the operation of the judgment, the petition notes that it has caused immense prejudice to all adult persons who engage in consensual sex, particularly those from the Lesbian, Gay, Bisexual and Transgender community, who suddenly have been put at risk of prosecution under criminal law. In the last four years, many persons from the LGBT community have become open about their sexual identity and disclosed their intimate relationships on the basis of the High Court judgment decriminalising the same.
The Petition further states that since it raises significant issues of constitutional import of substantial public interest and far reaching public importance, an oral hearing ought to be given by the Hon'ble Supreme Court.

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