Delhi High Court Ruling

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+WP(C) No.7455/2001%Date of decision : 2

nd

July, 2009Naz Foundation .... Petitioner Through:Mr.Anand Grover, Sr.Advocate withMr.Trideep Pais, Ms.Shivangi Rai andMs.Mehak Sothi and Ms.Tripti Tandon, AdvocatesversusGovernment of NCT of Delhiand Others .... Respondents Through :Mr.P.P. Malhotra, ASG withMr.Chetan Chawla, Advocate forUOI.Ms.Mukta Gupta, Standing Counsel(Crl.) with Mr.Gaurav Sharma andMr.Shankar Chhabra, Advocates forGNCT of Delhi.Mr.Ravi Shankar Kumar withMr.Ashutosh Dubey, Advocates forrespondent No.6/Joint Action CouncilKannur.Mr.H.P.Sharma, Advocate forrespondent No.7/Mr.B.P. Singhal.Mr.S.Divan, Sr. Advocate withMr.V.Khandelwal, Mr.Arvind Narain,Ms.S. Nandini, Mr.Mayur Suresh,Ms.Vrinda Grover and Mr.JawaharRaja, Advocates for respondentNo.8-Voices against 377.

CORAM:HON’BLE THE CHIEF JUSTICEHON’BLE DR. JUSTICE S.MURALIDHAR

1.Whether reporters of the local news papersbe allowed to see the judgment? Y2.To be referred to the Reporter or not ? Y3. Whether the judgment should be reported in the Digest?Y[WP(C)7455/2001] Page

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AJIT PRAKASH SHAH, CHIEF JUSTICE:

1.This writ petition has been preferred by Naz Foundation, aNon Governmental Organisation (NGO) as a Public InterestLitigation to challenge the constitutional validity of Section377 of the Indian Penal Code, 1860 (IPC), which criminallypenalizes what is described as “unnatural offences”, to theextent the said provision criminalises consensual sexualacts between adults in private. The challenge is founded onthe plea that Section 377 IPC, on account of it coveringsexual acts between consenting adults in private infringesthe fundamental rights guaranteed under Articles 14, 15, 19& 21 of the Constitution of India. Limiting their plea, thepetitioners submit that Section 377 IPC should apply only tonon-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. The Union of India isimpleaded as respondent No.5 through Ministry of HomeAffairs and Ministry of Health & Family Welfare. RespondentNo.4 is the National Aids Control Organisation (hereinafterreferred to as “NACO”) a body formed under the aegis of Ministry of Health & Family Welfare, Government of India.NACO is charged with formulating and implementingpolicies for the prevention of HIV/AIDS in India. RespondentNo.3 is the Delhi State Aids Control Society. RespondentNo.2 is the Commissioner of Police, Delhi. Respondents No.6to 8 are individuals and NGOs, who were permitted tointervene on their request. The writ petition was dismissed[WP(C)7455/2001] Page

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by this Court in 2004 on the ground that there is no cause of action in favour of the petitioner and that such a petitioncannot be entertained to examine the academic challengeto the constitutionality of the legislation. The SupremeCourt vide order dated 03.02.2006 in Civil AppealNo.952/2006 set aside the said order of this Court observingthat the matter does require consideration and is not of anature which could have been dismissed on the aforesaidground. The matter was remitted to this Court for freshdecision.

HISTORY OF THE LEGISLATION

2.At the core of the controversy involved here is the penalprovision Section 377 IPC which criminalizes sex other thanheterosexual penile-vaginal. The legislative history of thesubject indicates that the first records of sodomy as a crimeat Common Law in England were chronicled in the Fleta,1290, and later in the Britton, 1300. Both texts prescribedthat sodomites should be burnt alive. Acts of sodomy laterbecame penalized by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I,after which it became the charter for the subsequentcriminalisation of sodomy in the British Colonies. Oral-genital sexual acts were later removed from the definitionof buggery in 1817. And in 1861, the death penalty forbuggery was formally abolished in England and Wales.[WP(C)7455/2001] Page

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