NAZ FOUNDATION VS GOVT.

OF NCT OF DELHI

Facts of the Case

The Delhi High Court delivered its verdict on the matter 2 July 2009 and held that
section 377 IPC was unconstitutional in so far as it criminalises consensual acts
of a carnal nature among adults, and clarified that all past transactions on the
matter will remain closed and that decisions that were handed down will continue
to remain in force. It said -

This judgment of the Delhi High Court was then appealed in the Supreme Court
by Suresh Kumar Koushal and Naz foundation was made the first respondent on
which the Supreme Court then pronounced its judgment 11 December 2013.


History of the Case

Naz foundation is an NGO working in the field of HIV/AIDS intervention and
prevention. Its work focuses on targeting men who have sex with men (MSM)
or homosexuals or gays to integrate them into society. It alleged that its efforts
have been hurt by the discriminatory policies of the State towards sexual
minorities, MSM, lesbians and transgender individuals, Naz Foundation filed a
suit before the Delhi High Court and sought the grant of a declaration, declaring
Section 377 IPC to the extent it is applicable to and penalises sexual acts in
private between consenting adults as being violative of Articles 14, 15, 19(1)(a)-
(d) and 21 of the Constitution.

It prayed for this before the High Court arguing that the core of Section 377 IPC
is to penalise carnal acts which are against the order of nature and that this
provision is based on a Judeo-Christian moral and ethical standard and is being
used to discriminate against sexual minorities further it argued that Section 377
IPC does not enjoy justification in contemporary Indian society it further argued
that Section 377 is detrimental to peoples lives and serves as an impediment to
public health due to its direct impact on the lives of homosexuals and that the
section serves as a weapon for the police to abuse the community by detention,
questioning, extortion, harassment, forced sex, payment of hush money.

It also argued that the section perpetuates negative and discriminatory beliefs
towards same sex relations and sexual minorities and that as a result of that it
drives gay men and MSM and sexual minorities underground which harms
HIV/AIDS prevention methods. According to respondent No.1, Section 377 is
used predominantly against homosexuals as it criminalises the activity practiced
more often by men or women who are homosexually active. It stated that there
was evidence to refute the assumption that non- procreative sexual acts were
unnatural and such evidence included socio-scientific and anthropological
studies and also the natural presence of homosexuality in nature.


Arguments presented

Appellants

Argued the writ petition filed by NAZ foundation had not placed any tangible
material before the High Court to show that Section 377 had been used for
prosecution of homosexuals as a class.
It was wrong on the part of the High Court to declare that Section 377 IPC
obstructed the personality development of homosexuals or affected their
self-esteem and was violative of Articles 14 and 15 of the Constitution to
support these arguments he referred to the verdict of the Court in.
That Section 377 IPC was gender neutral and covered all voluntary acts of
carnal intercourse against the order of nature irrespective of the gender of
the persons committing such acts. Further he said that anal intercourse
between two homosexuals was a high-risk activity, which exposed both
the participating homosexuals to the risk of HIV/AIDS.
Article 21 provided that the right to life and liberty was subject to procedure
prescribed by law and the procedure to try the carnal act was in this
matter was in fact prescribed by law.
That no class was targeted by Section 377 IPC and no classification had been
made and, therefore, the finding of the High Court that this law offended
Article 14 as it targets a particular community known as homosexuals or
gays is without any basis.
That every organ in the human body has a designated function assigned by
nature. If such function was to be abused, it goes against nature. The
code of nature was inviolable. Sex and food were regulated in society.
What is pre-ordained by nature had to be protected, and man had an
obligation to nature. It was also argued that if the declaration made by the
High Court is approved, then Indias social structure and the institution of
marriage will be detrimentally affected and young persons will be tempted
towards homosexual activities.
It was also submitted by the appellants that the right to sexual orientation can
always be restricted on the principles of morality and health.
High percentage of AIDS amongst homosexuals shows that the act in question
covered under Section 377 IPC is a social evil and,therefore, the
restriction on it is reasonable.


Respondents

Section 377 criminalises acts covered by the words carnal intercourse against
the order of nature between consenting adults in private. The phrase
generally implies penile non-vaginal sex. Though facially neutral, these
acts are identified and perceived by society to be indulged in by
homosexual men and thus by criminalising these acts which are an
expression of the core sexual personality of homosexual men, Section 377
turns them into criminals with harsh consequences thus violating their
human dignity violating the rights guaranteed to them under Article 21 of
the Constitution.
Criminalisation of their way of life impairs health services for gay men and thus
violates their right to health under Article 21.
It was further argued by the respondents that Section 377 was vague and
sought to introduce a classification which was not based on rational
criteria. The expression carnal intercourse against the order of nature
has not been defined in the statute. In the absence of legislative guidance,
courts are left to decide what acts constitute a violation of section 377 and
the cases show that application has become inconsistent and highly
varied. From excluding oral sex to now including oral sex, anal sex and
penetration into artificial orifices such as folded palms or between thighs
by terming them as acts of sexual perversity.
They also went into the historical aspects of this dispute and said that Section
377 introduced by the British was based on Judeo-Christian moral and
ethical standards which conceive of sex on purely functional terms, that is,
for procreation. Thus especially targeting homosexual men by virtue of
their association with the acts laid out in the section. Even when such a
law no longer exists on the Statute books on England.
It was also said that the criminalisation of Section 377 impacts homosexual
men at a deep level and restricts their right to dignity, personhood and
identity, privacy, equality and right to health by criminalising all forms of
sexual intercourse that homosexual men can indulge in as the penetrative
sexual acts they indulge in are necessarily penile non vaginal. It impacts
them disproportionately as a class especially because it restricts only
certain forms of sexual intercourse that heterosexual persons can indulge
in and therefore section 377 ends up criminalising identity and not mere
acts as it is usually homosexual or transgender persons who are
associated with the sexual practices laid out under Section 377. Thus
violating the right guaranteed to them under Article 15 of the Constitution.
The respondents also argued on grounds of humanism and said that
Criminalisation creates a culture of silence and breeds intolerance in
society and ends up perpetuating stigma and discrimination against the
homosexuals. Homosexual persons are thus reluctant to reveal their
orientation to their family because they feel that they will be faced with
shock, denial and rejection or worse even pressured through abuse and
marriage to cure themselves.
It was also argued that Section 377 creates an unintelligible classification of
sexual acts against the order of nature and not against the order of
nature which is arbitrary and not scientific. Due to an absence of
legislative guidance it is left to the Court to decide what constitutes against
the order of nature. The test in this regard has shifted from acts without
possibility of procreation to imitative acts to acts amounting to sexual
perversity.

Held that

The Supreme Court held that Section 377 IPC did not suffer any
unconstitutionality and that the declaration made by the Division Bench of
the High court was legally unsustainable.
The appeals were allowed and the impugned order was set aside and the writ
petition filed by NAZ foundation was dismissed.
Lastly the Honble Court sought to make it clear that it had merely pronounced
on the correctness of the view taken by the Delhi High Court on the
constitutionality of Section 377 IPC and had found that it did not suffer
from any constitutional infirmity. It further added that notwithstanding its
verdict, the legislature was free to consider the desirability and propriety of
deleting Section 377 IPC from the statute book or amend it as per the
suggestion that had been made by the Attorney General.






Criticism

After this verdict was handed down this view of the Honble Supreme Court came
to be criticised by many eminent social activists and legal luminaries.
International organisations like UNAIDS also criticised it for depriving a section of
the population of its rights.

It was criticised on the grounds that Section 377 was a socially regressive law
and that since law was an ever-evolving body of knowledge, and tool of
governing society it should have responded to the changing social attitudes of
greater acceptance of the gay community.

Further it was criticised for its declaration on the fact that only 200 people had
been prosecuted in 150 years and that such a small number was not enough to
strike down a law, on the ground that the number of people affected by the
unconstitutionality of a law whether alleged or actual was an immaterial
consideration for the Court to ponder over. If a law affected adversely the
Fundamental Rights of only one person that should be enough of a consideration
to strike it down.

It was felt that since this law of the Victorian era had become so deeply
ingrained in the conscience of the public, the legislature, would never be able to
pass such a law for the fear of a public backlash as was suggested by the Court.