NAZ Foundation vs. Government of NCT of New Delhi

• Citation- 160 Delhi Law Times 277
• Date of Judgment-02/07/2009
• Bench-Chief Justice Ajit Prakash Shah & S. Muralidhar Judge

Facts of the case

A special leave petition under Article 126 was filed in the Delhi High Court by an NGO, Naz Foundation to challenge the constitutional validity of Section 377 of the IPC. The NGO worked for prevention of HIV-AIDS and interacted with the LGBT community, who according to them were extremely vulnerable to thisdisease. The petitioner contended that because of Section 377, this section of the society were abused and neglected by the public authorities. 

Issues raised in the case

Whether Section 377, IPC is constitutionally valid?

1. Whether Section 377 violates Article 14 and 15 of the Constitution?
2. Whether Section 377 violates Article 21 of the Constitution?

Arguments of Petitioners

• The petitioners contended that Section 377 violates Article 14 & 15 as it discriminates the LGBT community on the basis of their sexual orientation.
• Section 377 violates Right to Life given under Article 21, as it intrudes one’s Right to personal choice of consensual sexual relations and infringes Right to privacy which is a part of Right to live with dignity.
• Section 377 criminalizes homosexuality, bisexuality and other sexual orientations, which does not go with today’s time and there’s a need to modify this provision according to the needs of modern society.
• Section 377 has no rational to classify procreative and non- procreative sexual acts.

Arguments of Respondents

• The objective of Section 377 is to prevent cases of sexual abuse of women and children.
• Consent cannot be the only essential to make a derogatory act, which is against the nature, a lawful act.
• Public authorities have the power to intrude in private life and family life of any person, to protect the health and morals of the society.
• Decriminalizing Section 377 will open the gates for immoral behavior and hence, it will not be in the public interest.
• The contention that LGBT community is vulnerable to HIV has been agreed by National Aids Control Organization and it has provided various methods to control this high risk.

Ratio Decidendi

• Sexual orientation is a personal choice and if sexual activity undertaken by them are consensual and does not harm others, it will amount to breach of privacy under Article 21.  
• Article 21 also recognize Right to live with dignity and criminalizing one’s gender identity denies such right.
• Section 377 denounces the LGBT community as it force them to hide their identity and expose them to exploitation, cruelty, harassment and humiliation.
• Discrimination based on one’s sexual identity and gender is unreasonable and it violates Article 14 and Article 15.
• The 142nd Law Commission Report has expressed the need to decriminalize Section 377 as the objective of protecting women and children from child abuse, has been fulfilled by the amendment made in Section 375 and Section 376 and therefore there is no need to of the provision provided in Section 377.
• The High Court of Delhi declared that Section 377 violates Article 14, 15 and 21 and it is constitutionally invalid. Section 377 will continue to criminalize non- consensual, penile non-vaginal sex with minor and unnatural sex with animals.