Friday, 1 July 2022

Naaz Foundation vs Government of NET of Delh

 Naaz Foundation vs Government of NET of Delhi 

 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. Naaz 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


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. 

The movement to repeal Section 377 was led by the Naaz 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. This was the second such petition, the first filed in 1994 by AIDS Bhedbhav Virodhi Andolan. 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. Naaz 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 Naaz 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. The decision by Hon'ble High Court of Delhi to decriminalize homosexuality was opposed by the then Congress led UPA government in India.

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



  • The Naaz Foundation stated that the harassment and discrimination of the gay and transgender minority in India resulting from the continued implication of Section 377 affected the rights of that community which were guaranteed under the Constitution, which included the right to equality, the right to non-discrimination, the right to privacy, the right to life and liberty, and the right to health.

  • They argued that the Constitution protected the right to privacy under the right to life and liberty enunciated in Article 21.

  • .They further arguedand submitted that the right to non-discrimination on the basis of sex in Article 15 should not be read restrictively and obstructively but should include “sexual orientation”.

  • They also held that the criminalisation of homosexual activity and actions by Section 377 was discriminatory on the basis of sexual orientation and was hence contraryto the Constitutional guarantee of non-discrimination under Article 15 of the Indian Constitution. This section aims at promoting safe sex practices.

  • Lastly, the Naz foundation enunciated that courts in other areas and jurisdictions have struck down and done away with comparable provisions regarding sexual orientation on the grounds that they violated the rights to privacy, dignity and equality. Further they stated that government cannot make private sexual behaviour criminal when there is no overriding compelling state interest.




  • Both the Ministry of Home Affairs (MHA) and the Ministry of Health and Family Welfare submitted legal opinions in respect to the writ petition. But what came as a surprise was that the two ministries opposed each other in terms of the legal argument submitting two “completely contradictory affidavits”.

  • The MHA, argued for the retention of Section 377 on several grounds. First, that it provided for the prosecution of individuals for the sexual abuse of children. Second, that it filled a gap in the rape laws. Third, that if removed it would provide for “flood gates of delinquent behaviour” which would not be in the public interest. Finally, MHA submitted that Indian society does not morally condone such behaviour and law should reflect societal values such as these.

  • In contrast, the Ministry of Health and Family Welfare (with association from the National Aids Control Organisation) submitted evidence in support of the Naaz Foundation’s plea– that the existence of section 377 is counter productive to the efforts of HIV/AIDS prevention and treatment for the same.

  • They argued for the removal of Section 377 saying that it makes a large stratum of people in high risk categories in relation to HIV/AIDS reluctant to come forward for treatment due hesitance or because of fear of law enforcement agencies, and that in driving homosexuality underground it increases promiscuous behaviour that is of unprotected sex.


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. 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.

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. 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. 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.

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.


 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.

No comments:

Post a Comment

Concept of constitutionalism

  Concept of constitutionalism Who Started Constitutionalism? John Locke - The English Bill of Rights is a foundational constitutional docum...