Naz foundation v. Government of NCT of Delhi is a very progressive judgement in the Indian judicial history, this case went up to a bench comprising 2 justices[2] of Delhi High Court. This is that famous judgement which interpreted that consensual homosexual sexual intercourse is not a criminal activity and making it a crime violates the fundamental rights of the citizens guaranteed to them by the Constitution of India. This judgement reversed a long-lasting law which criminalised the consensual homosexual activities. 4 years later in Suresh Kumar Koushal vs. Naz Foundation (2013)[3] again a 2 judge bench but this time the matter was in the Supreme Court. The 2009 judgement was reversed and Section 377 of the Indian Penal Code, 1860 was decriminalized. But as we see even the 2013 judgement was reversed in the year 2018, the Navtej Singh Johar v. Union of India[4] was the case in which a 5-judge bench[5] of the Supreme Court overturned the earlier 2013 judgement and decriminalised homosexuality.

  • Background: –

The landmark case of the Naz Foundation is a case which changed the opinion of public at large, this is the case in which Naz foundation, an organisation fighting for the HIV/AIDS patients, filed a writ petition in front of the honourable Delhi High Court to strike down the section 377 of the Indian Penal Code and also contended that this section is unconstitutional. Section 377 is not a new statute. In fact it has been in the books since 1861 and in the recent times with an evolving society this debate further took course whether this law is violative of the Constitution of India. Also whether this law stripped a minority group of people from the right to freedom of choice which is guaranteed by the Constitution. The petitioner also contended that being a group which works to control the spread of HIV/AIDS their work was getting even difficult because this law came in the way of the people from the LGBTQ+ community to come forward with their problems which resulted into further increasing the vulnerabilities of the LGBTQ+ community and making them prone to harassment and bullying. This law was made by the colonial government in the year 1861 for the people of the colonised India. So the question arises whether this law is still suitable for an evolving, diversified and democratic country like India.

  • Brief Facts: –

This case started with a writ being filed in the Delhi High Court by a Non-Governmental Organisation (NGO) working very closely with the HIV/AIDS patients. They claimed that section 377 of the IPC is unconstitutional. The verbatim of section 377 consists of the phrase unnatural offence” and this at large disregard any type of sexuality except of the heterosexual nature. The Naz Foundation submitted to the court that this section is violative of the fundamental rights provided to the people by the Constitution of India under the articles 14,15,19 and 21. They also said that due to this they were not able to carry out their work and were not able to help the people suffering from HIV/AIDS as this law makes homosexuality a punishable offence.

 This NGO started this movement by filing a petition in 2001 to legalise homosexual intercourse between two consensual adults. This whole movement was started in 1994 when the first petition was filed in the same year by the AIDS Virodhi Andolan group. In 2003 the Delhi High Court rejected the plea filed by Naz Foundation Group saying they don’t have the locus standi (the capacity to bring a motion). Then the NGO knocked the doors of Supreme Court by filing an appeal. The Supreme Court said that they had the capacity to bring a motion as a PIL (Public Interest Litigation) and then the Supreme Court directed the High Court to look into this case.

  • Issues before the court: –
  1. Does section 377 violate the fundamental rights guaranteed by article 14,15 and 21?
  2. Is it viable and right to strike down the section 377?
  • Judgement: –

The Delhi High Court delivered a path breaking judgement and took a very liberal approach. The court also observed that this law interfered in the private space of two consensual adults.

The Court also struck down parts of section 377 of IPC but did not strike it down as a whole. The Court observed that part of this section was violative of fundamental rights enshrined in the article 14,15 and 21. Non-consensual, non vaginal intercourse are still offences and bestiality also remains a crime. This judgement holds power till the time the parliament passes an amendment on it.

The Court noted that any differentiation or discrimination is only allowed under law if there is an intelligible differentia provided that the intelligible differentia should be fair and should not be unjust. The bench also referred to the Toonen v. Australia[6] in which the sexual acts between consensual men were criminalised and this resulted into the violation of the Article 2 of the International Covenant on Civil and Political Rights. The Court also noted that by criminalising homosexuality people were being stripped of the right to maintain personal relations and this was a violation of Article 21 as the mere identity is being criminalised and hence this violated right to life. This law also made the LGBTQ community vulnerable to harassment and increased their vulnerabilities. Now people will also come forward with the diseases like HIV/AIDS without fearing harassment and punishment. This will also break the spread of sexually transmitted diseases (STD) because earlier people were not allowed to come upfront with such problems.

  • Analysis: –

This is the case in which the Court upheld the rule of law. This is very well propagated that the popular opinion in the public does not supersede the legal course. In the administration of justice, the constitutional morality is given importance and the popular morality does not become a factor in the administration of justice. The Constitution of India appreciates the diversity and the framers of the Constitution very well indicated, with the help of the preamble to the Constitution, that criminalising homosexuality would mean going against the very thread of the Constitution which is the covenant of constitutional morality.

  • Conclusion: –

The court went for a judgement which is not only just but also clears the stand of Indian judiciary on its functioning. The judiciary discredited the popular opinion of what should be morally correct. The Court also paved a way to give dignified lives to the whole LGBTQ+ community. The Court also initiated a debate which will not only raise awareness about the sexual orientation of a minority group but also about sexually transmitted diseases.


[2] Bench: Chief Justice Ajit Prakash Shah,Justice S. Muralidhar





Written by:

Priyam Tiwari

Priyam is a First year Law student at SLS, Noida

Share on facebook
Share on twitter
Share on linkedin
Share on whatsapp

Leave a Comment

Your email address will not be published. Required fields are marked *