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Naz Foundation (India) Trust

Naz Foundation (India) Trust v. Govt. of N.C.T. Delhi & Ors.

Facts – grounds of challenge

The Petitioner, Naz Foundation (India) Trust, is a Non-Governmental Organization involved in HIV/AIDS prevention. During its interventions with MSM (men who have sex with men) and gay communities, the Petitioner came to appreciate the damaging effects of Section 377 of the Indian Penal Code (IPC) upon HIV/AIDS prevention efforts and the private lives of individuals within these communities. It has been the Petitioner’s experience that public authorities commonly employ Section 377 for constant extortion from and harassment of MSM and sexuality minorities (including gay men, lesbian women and transgender individuals), activities which constitute a blatant abuse of the individuals’ fundamental rights. The Petitioner had filed the petition for a declaration that Section 377 is violative of Articles 14, 15, 19 (1) (a-d) and 21 of the Constitution of India to the extent that it penalizes private sexual acts between consenting adults.

The Petitioner has prayed for a permanent injunction, restraining the Respondents by themselves, or through their officers, agents and/or servants from, in any manner enforcing the provisions of Section 377 upon consenting adults.

Legal proceedings

On 2nd September 2004, the Delhi High Court dismissed the Public Interest Litigation (PIL) on the ground of standing. The Petitioner filed a Review Petition in the Delhi High Court which too was dismissed.

Aggrieved by the order of the High Court, the Petitioner filed a Special Leave Petition (SLP) in the Supreme Court against the dismissal of the matter by the High Court. On 3rd April 2006, the matter was remanded back to the High Court by the order of the Supreme Court to hear the matter on merits. Justice Vijendra Jain of the Delhi High Court issued notice to the Respondents.

The Petitioner moved an early hearing application urging the Delhi High Court to list the matter at the earliest. On 7th April 2008, the early hearing application was listed before Judges A.K. Sikri and J.M. Malik. The Petitioner urged the Judges to post the matter for final arguments as soon as possible as hundreds of people faced harassment owing to the application of this law on an everyday basis. The Judges expressed their desire to hear the matter expeditiously and posted the matter for final arguments on 19th May 2008.
The bench comprising Justices A.K. Sikri and J.M. Malik commenced hearing the final arguments on the matter. However, the courts closed for summer vacation post which, the High Court’s roster was revised and the matter was then placed before the Hon’ble Chief Justice A.P. Shah and Justice Murlidharan.
The final arguments resumed on 18th September 2008 and came to a conclusion on 7th November 2008 after detailed arguments were put forth from both sides. The matter was reserved for judgment.

Main arguments of the Petitioner - Naz Foundation (India) Trust

• Section 377 violates the fundamental right to privacy of MSM and is therefore violative of Article 21 of the Constitution.
• Section 377 violates the fundamental right to health and life of MSM and is therefore violative of Article 21 of the Constitution.

• Section 377 violates the fundamental right to dignity of MSM and is therefore violative of Article 21 of the Constitution.

• Section 377 disproportionately impacts MSM and is violative of the fundamental Right to equality and equal protection of the law under Article 14 of the Constitution

• The classification created by Section 377, which makes no distinction between consensual and non-consensual sex, is invalid and therefore violative of Article 14 of the Constitution.

• Section 377 violates Article 15(1) of the Constitution, as prohibition of discrimination on the ground of ‘sex’ inherently includes prohibition of discrimination on the ground of ‘sexual orientation’.

• Section 377 violates freedom of speech and expression of MSM under Article 19(1) (a) and also the freedoms of assembly, association and movement of MSM under Articles 19 (1) (b) – (d) of the Constitution of India.

Main arguments of the Government – a house divided

• On the question of Public health, Department for AIDS Control (NACO), a department within the Ministry of Health deposed by affidavit that Section 377 does impede HIV prevention and care interventions with MSM and pushes HIV underground.
• The Home Ministry however maintained that homosexuality spreads HIV. Therefore, in order to prevent HIV from spreading it is important to retain Section 377 as it acts as a deterrent to commit the crime of homosexual sex.
• There can be no privacy to commit a crime and further the right to privacy can be infringed to preserve health, decency and morality.
• Section 377 applies to all people and is not discriminatory against MSM and therefore not violative of Article 14. .
• Section 377 does not infringe freedoms of speech and expression or assembly, association and movement under Article 19(1)
• Section 377 does not violate the equality clause under Article 15(1) as the prohibited ground of discrimination ‘sex’ does not include ‘sexual orientation.’

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