Division of Government opinion in the

377 case of 2009

This article is written by Kumari Shalini, a first year student at Lloyd Law College, Gr. Noida.
This article seeks about the essentials of the case, Naz foundation v. Govt of NCT of Delhi and
speculates about the upholding steps taken by the government.

Introduction
It has become very common to see two genders of the same sex, called homosexual, develop
an infatuation for each other, and gradually feel connected. Which is seen as taboo, and
considered “unfaithful” towards society. Sexuality has always been considered a challenging
issue in present times. In the 21st century, where society considers itself as liberal, it fails to
some extent in considering the legal rights of homosexuals, lesbians, and transgenders. It is
subject to relevant laws, legislative issues, and social equality. It is broadly recognized that sex
and sexually-oriented minorities experience social and political underestimation in many social
orders. The degree of this is a profound factor, contrasting across nations, states, and
international areas. Such underestimation brings about types of separation like mental and
actual maltreatment, rape, misuse, disregarding, constrained heterosexual marriage, and
transformation treatment. This can prompt social and political seclusion and a higher
predominance of psychological well-being issues.

In light of this, the Supreme Court of India on September 6, 2018, legitimized Section 377
making gay sex legal. The SC in its verdict mentioned that consensual sex between adults in
private space, not harming women or children, cannot be denied as it stands as a matter of
individual choice. Based on this case, is a documentary by Sridhar Rangayan-’ Breaking free’,
which lucidly gives sufficient evidence through personal experiences of an individual from their
real life journey. It shows that law is being misused by the police, other officials and
blackmailers to torture and even rape the people of LGBT community.

Naz Foundation v. Government of NCT of Delhi: An

overview
The case of Naz Foundation v. The Government of NCT of Delhi is one of the first case laws
which said that section 377 (IPC) of the Indian Penal Code is unconstitutional, as this case in a
way discriminates against the LGBTQ community of the country and violates their privacy as
individuals. They sought for legislation, which permitted the homosexual major to have
intercourse with the presence of consent. Section 377, was introduced during the British period;
eighty-seven years after the law was made, India had acquired her freedom from a frontier past.
However, Macaulay's heritage - the offense under Section 377 of the Penal Code has kept on
existing for almost sixty-eight years after we gave ourselves a liberal Constitution. Gays and
lesbians, trans-sexual and bisexuals keep on being denied a genuinely equivalent citizenship
after seventy years of Freedom.
In 2009 Naz Foundation, a non-governmental organization challenged the constitutionality of
Article 377 under Article 14,15,19 and 21 under the steady gaze of the Delhi High Court. The
foundation fought that Section 377 (IPC) mirrors outdated comprehension of sex which is not
welcomed in the society. This case constituted a five judge-bench headed by Chief Justice
Deepak Mishra, justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. The
foundation referred to an occurrence in 2001 in Lucknow where HIV anticipation labourers, who
were appropriating condoms to gay man, were captured on the claim that they were plotting to
submit an offense. The Naz foundation said additionally that the arrangement was being abused
to turn down consensual sex that are not peno-vaginal. This case was the first milestone in the
journey of decriminalizing section 377 and giving away the rights of LGBTQ societies. At first
instance, the Delhi High Court rejected this suit which refused to consider the petition by saying
that the petitioner did not have the right to come before the court on this matter. However, the
supreme court after hearing from the Naz foundation said that they have the right to file the
Public Interest Litigation (PIL) in this case then take it to the High Court.
The Delhi High Court concluded that the section 377 cannot be used to punish two consenting
adults for sex, as this violates the basic fundamental rights of privacy under Article 21 of the
constitution. The Honorable Delhi High Court also held that categorizing people on the basis of
sex violates another basic fundamental right i.e., Article 14 of the constitution, which states that
all of us, no matter who we are, enjoy the same human rights and should have equal access to
them. After this landmark judgment many curative petitions filed against this ruling. In the
petitions many organizations and social groups argued that the right to privacy does not give
privilege to commit any offense. Also, many of them argued that decriminalization of section 377
would be a catastrophe for the institution like marriage and this will persuade the young mind
towards homosexuality and will hamper the societies’ growth.
Former Chief Justice of India Deepak Mishra rightly quoted while writing judgment on Navtej
Singh Johar case on behalf of Justice A.M. Khanwilkar and himself: “Not for nothing, the great
German thinker, Johann Wolfgang von Goethe, had said, ―I am what I am, so take me as I am
and similarly, Arthur Schopenhauer had pronounced, ―No one can escape from their
individuality. In this regard, it is remarkable to quote a few lines from John Stuart Mill -But
society has now fairly got the better of individuality; and the danger which threatens human
nature is not the excess, but the deficiency of personal impulses and preferences. The
emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression
is inviting death. Irreplaceability of individuality and identity is a grant of respect to self. This
realization is one ‘s signature and self-determined design. One defines oneself. That is the
glorious form of individuality.”

View of the Ministry of Home Affairs (MHA)

The term Homosexuality was coined in the late 19th century and used to describe sexual
intercourse between members of the same sex. It was declared unnatural by the colonial rules
and laws. Section 377 has not been only about anal sex or simply intercourse alone but it
applies to homosexuality in general, about their mental health, companionship and good relation
with same-sex partner, which is essential for a stress-free life like any other partners. Here, in
this case, Naz foundation v. the Govt of NCT of Delhi, the affidavit made by the Ministry of
Home Affairs in the supreme court had made it clear that it would not make any demands to
declare Section 377 of the IPC unconstitutional which criminalizes same sex relations between
two consenting adults in private.
A much peculiar feature of this case is that contradictory affidavits have been filed by the two
wings of the Union of India. The Ministry of Home Affairs sought to justify the withholding of
Section 377(IPC)on various grounds, first being that it provides prosecution of the individual for
the sexual abuse on the children, second, that if its removed it will bring more delinquent
behavior from the youths and individual and it would affect the public interest and social
behavior. Whereas the Ministry of Health and Family Welfare that the continuance of section
377 has hampered the efforts to prevent the HIV/AIDS and also increase the practices of
unprotected sex.
On behalf of the Ministry of Home Affairs, Government of India, Shri Venu Gopal, Director filed
an affidavit and argued that section 377 does not go under any constitutional fragility . He further
kept his point that an unlawful act cannot be termed legitimate because the person whose
detriments it acts, consents to it; and also, this section is not violative of articles 14 and 21 of the
constitution. According to him it provides a punishment for unnatural sex offences, carnal
intercourse against the order of nature and does not make any difference between the
procreative and non-procreative sex.

View of the Ministry of Health & Family Welfare

(MH&FW)
The Ministry of Health and Family Welfare were against the retention of Section 377 (IPC), and
have presented their affidavits in order to remove this section. The ministry of health in
conjunction with NACO (National Aids Control Organization) had filed the affidavit of Shri. M.L.
Soni, under Security to the Government of India. He indicated the strategies adopted by NACO
for the prevention and control of the disease HIV/AIDS which includes the identification of
groups of high risk and equipping the necessary tools for protection and medical care. The
informant asserted that National Sentinel Surveillance Data 2005, estimated that HIV
occurrence in ‘men who have sex with men’ (MSM) is 8% while when compared with the
general population it only stands as 1%. The MSM population was estimated at 25 lakhs in
January 2005. Shri Soni also stated that NACO has developed various programs for
undertaking intercedes among the MSM population and that for the prevention of HIV/AIDS,
there is a need for a surrounding where people indulging in such occurrences may be
encouraged not to hide and confidential information so that they can avail the NACO services.
The same above mentioned argument was also made before the Supreme Court by ASG
Mohan Jain who in the favor of MH&FW, argued that “ because of their risky sexual behavior,
MSM and female sex workers are at a high risk of getting HIV/AIDS as compared to normal
human beings”.

Outcome
Former Chief Justice, A.M. Khanwilkar mentioned that the most common argument against
criminalizing homosexuality is the essential purpose of the sex is to procreate. For this
argument the honorable Retd. Justice Deepak Mishra penned that “With the passage of time
and evolution of the society, procreation is not the only reason for which people choose to come
together, have live-in relationships, or even marry. They do so for a whole lot of reasons
including emotional companionship, and strong bonds. Homer Clark writes-The most significant
function of marriage today seems to be that it furnishes emotional satisfactions to be found in no
other relationships. For many people it is the refuge from the coldness and impersonality of
contemporary existence. In the contemporary world where even marriage is now not equated to
procreation of children, the question that would arise is whether homosexuality and carnal
intercourse between consenting adults of opposite sex can be tagged as against the order of
nature ‘. It is the freedom of choice of two consenting adults to perform sex for procreation or
otherwise and if their choice is that of the latter, it cannot be said to be against the order of
nature. Therefore, sex, if performed differently, as per the choice of the consenting adults, does
not make it against the order of nature”.
Thus, the Supreme Court, ruled that gay sex among the consenting adults is not any criminal
offence. It held that Lesbian, Gay, Bisexual, Transgender all possess the same equality and
same constitutional right at the other citizens of this country, it termed it at biological
phenomenon and ‘natural’ and any discrimination on this ground violates the fundamental rights.

Conclusion
Regardless of legal decisions, India's sexual minorities face separation in business, medical
problems and individual rights. This makes them incongruent with the nation's living, liberal and
comprehensive Constitution. It devoid them of their rights and hinders their social growth.
Justice Anthony Kenedy, the judge of US Supreme court said in Obergefell vs Hodges (2015)
that the we cannot compromise on the basic human right of marriage and cannot deny to the
same-sex people. The LGTBQ community needs an anti-discrimination law that empowers them
to build productive lives and relationships irrespective of gender identity or sexual orientation
and place the duty to change on state and society and not the individual. Article 15 of the
constitution talks about that there should be no discrimination on the basis of sex and gender. If
we have to remove the discrimination from the society, we should extend the scope of the
Article 15 and add grounds of non-discrimination including sexual orientation and gender
identity.
The Constitution is perceived and portrayed as a flare of fundamental rights. But in this race still
the LGBTQ Community is far away from the winning line. If we have to normalize the LGBTQ
society and their rights, the power and responsibility should be left only to the government
officials, the main strain should be on the civil society to accept the rights of LGBTQ community
and accept them as they are.

Reference
● https://economictimes.indiatimes.com/news/politics-and-nation/sc-delivers-historic-
verdict-heres-everything-you-need-to-know-about-section-377/articleshow/
65698429.cms?from=mdr
● https://www.legalserviceindia.com/legal/article-995-lawrence-v-s-texas-naz-foundation-
v-s-govt-of-nct-of-delhi-based-on-right-to-privacy.html
● https://www.civilserviceindia.com/current-affairs/articles/decriminalization-of-
homosexuality.html
● https://indianexpress.com/article/india/section-377-india-homosexuality-lgbtq-supreme-
court-hearing-5255789/
● https://www.legalserviceindia.com/legal/article-679-analysis-of-section-377-of-indian-
penal-code-1860.html