Table of Contents

NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI AND OTHERS (2010) 2 AIR KANT R
(NOC 149) 60 ............................................................................................................................ 2
1) REFERENCE DETAILS- .................................................................................................................. 2
2) BRIEF FACTS- ................................................................................................................................ 2
3) DECISION- ...................................................................................................................................... 2
4) INTERPRETATION OF STATUTE/ RULE APPLIED - ........................................................................ 2

COMMONWEALTH V. AUSTRALIAN CAPITAL TERRITORY [2013] HCA 55 ............................. 3

1. REFERENCE DETAILS- .............................................................................................................. 3
2. FACTS OF THE CASE- ................................................................................................................ 3
3. DECISION- ................................................................................................................................. 4
4. ANALYSIS- ................................................................................................................................. 4
5. INTERPRETATION OF STATUTE/ RULE APPLIED - .................................................................... 5

OBERGEFELL V. HODGES 135 S. CT. 2584................................................................................ 6

1. REFERENCE DETAILS- .............................................................................................................. 6
2. FACTS OF THE CASE- ................................................................................................................ 6
3. DECISION- ................................................................................................................................. 6
4. ANALYSIS- ................................................................................................................................. 6
5. INTERPRETATION OF STATUTE/ RULE APPLIED - .................................................................... 8

NICOLE KOPAUNIK AND DANIELA PAIER V. AUSTRIA E910 / 2017 ......................................... 8

1. REFERENCE DETAILS- .............................................................................................................. 8
2. FACTS OF THE CASE- ................................................................................................................ 8
3. DECISION ................................................................................................................................... 9
4. ANALYSIS- ................................................................................................................................. 9
5. INTERPRETATION OF STATUTE/ RULE APPLIED- ................................................................... 9
NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI AND OTHERS (2010) 2
AIR KANT R (NOC 149) 60

1) REFERENCE DETAILS-

Jurisdiction: High Court of Delhi at New Delhi.

Bench: Ajit Prakash Shah, C.J and S. Muralidhar, J.
Date of Decision: 2 July 2009
Case Status: Concluded

2) BRIEF FACTS-

This case concerned a writ petition (a public interest action taken before the court) brought by
an Indian NGO working with HIV/AIDS sufferers which argued that Section 377 of the Indian
Penal Code was unconstitutional. Section 377 entitled “Of Unnatural Offences” has effectively
been interpreted as criminalising consensual sexual acts between persons of the same sex. The
Naz Foundation and others submitted that this interpretation of Section 377 violated the
fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India.

3) DECISION-

The Court decriminalised homosexuality and struck down part of section 377 IPC holding it
to be in violation of Fundamental rights guaranteed by the Constitution.

4) INTERPRETATION OF STATUTE/ RULE APPLIED -

The High Court (hereinafter, the ‘Court’) firstly reiterated the test for any law which interferes
in personal liberty, as set out in Maneka Gandhi v. Union of India1 that the law shall contain a
procedure which must be tested against a one or more fundamental rights.
With respect to right to Privacy, The Court noted that the Indian Constitution does not contain
an explicit provision in relation to the right to privacy, however the Supreme Court has
interpreted such a right on the basis of Article 19 protecting freedom of expression and
movement, and Article 21 protecting the right to life and liberty. The Court made extensive
reference to United States jurisprudence on the right to privacy as read into the Constitution,

1
(1978) 1 SCC 248
including Roe v. Wade.2 It then went on to consider the development of this right in India
including the case of Kharak Singh v. The State of U.P.3, which traced the right to privacy in
India to the right to ‘life’ in Article 21 of the Constitution.
The Court reiterated the test set by Article 14 that any distinction or classification be based on
an intelligible differentia which has a rational relation to the objective sought and is not unfair
or unjust. Section 377, the Court said, does not distinguish between public and private acts, or
between consensual and non-consensual acts thus does not take into account relevant factors
such as age, consent and the nature of the act or absence of harm. The Court stated that such
criminalisation in the absence of evidence of harm seemed arbitrary and unreasonable.
The Court considered the petitioner’s argument that the reference to ‘sex’ in Article 15 should
be interpreted as including sexual orientation on the basis that discrimination on the grounds
of the latter is based on stereotypes of conduct on the basis of sex. The Court itself referred to
the Human Rights Committee’s decision in Toonen v. Australia4 criminalised sexual acts
between men, was considered a violation of Article 2 of the International Covenant on Civil
and Political Rights, where a reference to ‘sex’ was taken as including sexual orientation.

COMMONWEALTH V. AUSTRALIAN CAPITAL TERRITORY [2013] HCA 55

1. REFERENCE DETAILS-
Jurisdiction: High Court of Australia
Date of Decision: 12 December 2013
Bench: Robert French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ
Case Status: Concluded. Same-sex marriage in Australia has been legal since 9 December
2017. Legislation to allow same-sex marriage, the Marriage Amendment (Definition and
Religious Freedoms) Act 2017, passed the Australian Parliament on 7 December 2017 and
received royal assent from the Governor-General the following day.

2. FACTS OF THE CASE-

The case concerns the status of the Marriage Equality (Same Sex) Act 2013, enacted by the
Legislative Assembly for the Australian Capital Territory (hereinafter, ACT). Specifically, the
issue is whether the Act is inconsistent with or repugnant to either or both of two Acts of the

2
41 US 113 (1973).
3
(1964) 1 SCR 332
4
No.488/1992 CCPR/C/ 50/D/488/1992
federal Parliament: The Marriage Act 1961 and the Family Law Act 1975; and if it is so
inconsistent or repugnant, to what extent is the Act of no effect? The Marriage Act did not
provide for the formation or recognition of marriage between same sex couples and holds that
marriage can only be solemnised in Australia between a man and a woman. Moreover, a union
solemnised in a foreign country between a same sex couple must not be recognised as a
marriage in Australia.

3. DECISION-

The Court held that the whole of Marriage Equality (Same Sex) Act 2013 of ACT is inoperative
and has no valid operation as it is inconsistent with the Marriage Act, 1961. It laid down that
S. 51 (xxi) of the Constitution permitted the federal Parliament to make a national law with
respect to same sex marriage but had not done so. The absence of a provision permitting same
sex marriage did not mean that the ACT legislature may make such a provision. It did not mean
that an ACT law permitting same sex marriage could operate concurrently with the federal law.
In particular, there could not be concurrent operation of the federal and ACT laws until and
unless the Federal law expressly specifies the same.

4. ANALYSIS-

As with the Northern Territory Legislative Assembly, the ACT Legislative Assembly lacks the
full powers of a state legislature. Section 122 of the Constitution of Australia provides that
the Commonwealth Parliament "may make laws for the government of any territory"
surrendered by any State to the Commonwealth. In exercise of that power, the Commonwealth
Parliament has enacted the Territories Self-Government Legislation Amendment
(Disallowance and Amendment of Laws) Act 2011, which states that the Commonwealth
Parliament retains a right to legislate for the Territory in all matters, including power to override
laws passed by the Assembly. Moreover, Section 28(1) of the Australian Capital Territory
(Self-Government) Act 1988 states that a provision has no effect to the extent that it is
inconsistent with a federal law. 5
In the present case, the respondent ACT argued that because the federal law defines marriage
as between persons of the opposite sex, the ACT Act can operate concurrently with respect to

5
Christopher James Dowson, Beyond Juristic Classification: the High court’s decision in Commonwealth v
Australian Capital Territory (same-sex marriage case) 5 THE WESTERN AUSTRALIAN JURIST 293, 293-301
(2004).
marriage of persons of the same sex. The High Court of Australia found the Territory’s
argument to be flawed and rejected it on the basis that the Marriage Act regulates the whole
domain of “marriage” status. The Marriage Act, read as a whole, makes the provisions about
marriage as a comprehensive and exhaustive statement of the law with respect to the creation
and recognition of the legal status of marriage. This is illustrated through the 2004 amendments
to the Marriage Act which applied the newly introduced definition of marriage in that a union
solemnised in a foreign country between persons of the same sex must not be recognised as a
marriage in Australia.
The Court found there to be an implicit negative proposition that the kind of marriage provided
for by the Act is the only kind of marriage that may be formed or recognised in Australia. It
follows that the provisions of the two Acts cannot operate concurrently and accordingly the
ACT Act is inoperative. The reasoning stresses that giving effect to the ACT Act provisions
would “alter, impair or detract from the Marriage Act.”6

5. INTERPRETATION OF STATUTE/ RULE APPLIED -

Since, ACT does not enjoy the same status as the Australian States, any law made by its
Legislative Assembly shall not be repugnant to a federal law. The case seems to have been
decided on the principle of Supremacy of Federal Law (Similar to the concept of Union
Supremacy envisaged in Article 254 of the Indian Constitution). However, federal law will
hold supremacy provided it had the competency to legislate on the matter in the first place. To
solve this, the Courts referred to Section 51 (xxi) & (xxii) of the Australian Constitution. A
literal interpretation of the same makes it clear that federal Parliament is empowered to make
a national law with respect to the entire domain of marriage, including same- sex marriage.
But, it had wilfully chosen to exclude same-sex marriage from the definition of marriage when
it passed the Marriage Act. It was the intention of the Federal Parliament to only acknowledge
marital union between a male and a female as valid. Since, ACT enacted a legislation which
was repugnant to the law made by Commonwealth, the latter shall prevail. Hence, I conclude
that the impugned legislation enacted by ACT was rightfully declared void.

6
Commonwealth v Australian Capital Territory [2013] HCA 55
OBERGEFELL V. HODGES 135 S. CT. 2584

1. REFERENCE DETAILS-

Jurisdiction: Supreme Court of the United States

Date of Decision: 26 June 2015
Bench: Chief Justice John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth
Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagan.
Case Status: Concluded. This case overturned a previous ruling -Baker v. Nelson (1971).

2. FACTS OF THE CASE-

Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and
one woman. Several same-sex couples filed suits in Federal District Courts in their home
States, claiming that state officials violated the Fourteenth Amendment by denying them the
right to marry or to give full faith and credit to their out-of-state marriages. Each District Court
ruled in their favor and the case was elevated on certiorari to the Supreme Court of the United
States. The issue at hand was whether the definition of marriage as a union between one man
and one woman in violation of the Fourteenth Amendment?

3. DECISION-
The Court held that the laws of Michigan, Kentucky, Ohio, and Tennessee were held invalid
to the extent they excluded same-sex couples from civil marriage on the same terms and
conditions as opposite-sex couples. It explained that under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, same-sex couples have a fundamental right
to marry. Moreover, same-sex couples can exercise the fundamental right to marry in all states.
Thus, it follows that there is no lawful basis for a state to refuse to recognize a lawful same-
sex marriage performed in another state on the ground of its same-sex characteristics.

4. ANALYSIS-

Justice Kennedy delivered the opinion of the Court, joined by Justices Ginsburg, Breyer,
Sotomayor, and Kagan.
The Court based the notion that same-sex couples are constitutionally permitted to exercise the
right to marry on four interconnected principles, noting first that “the right to personal choice
regarding marriage is inherent in the concept of individual autonomy.”7 This principle,
according to Justice Kennedy, was rooted in the Court’s decision in Loving v. Virginia8, in
which the Court struck down a Virginia ban on interracial marriage on grounds of both equal
protection and due process. The Court found that it would be contradictory to “recognize a
right of privacy with respect to other matters of family life and not with respect to the decision
to enter the relationship that is the foundation of the family in our society.”9 The choice to
marry is a dignified one, and that choice allows the married individuals to make profound life
decisions within the marital relationship. This importance to the individual was further
highlighted by the Court’s second point, which highlights the unique commitment that marriage
is and its effect on the parties involved. Justice Kennedy acknowledged that legal precedent,
along with our Nation’s history and tradition, “make clear that marriage is a keystone of our
social order.”10 Marriage is an essential part of Americans’ private and public lives, and is the
foundation of the family and of society, without which there would be neither civilization nor
progress.
Next, Justice Kennedy found that “the right to marry is fundamental because it supports a two-
person union unlike any other in its importance to the committed individual.”11 Griswold v.
Connecticut12 built on the fundamental right to marry, reasoning that certain rights that have
long been seen as fundamental have certain penumbras that cannot be infringed upon without
constituting an infringement of the fundamental right itself. these penumbras create a shadowy
outer region of fundamental rights which “help give them life and substance.” Applying this
principle, “the right of privacy is a fundamental personal right, emanating ‘from the totality of
the constitutional scheme under which we live.’”13
According to Justice Kennedy, the fourth basis for protecting the fundamental right to same-
sex marriage is that it “safeguards children and families and thus draws meaning from related
rights of childrearing, procreation, and education.”14 There are myriad connections between
the right to raise a child and the stability a marital relationship can bring to the family dynamic;
the Court described these connections as a “unified whole” that is protected under the Due
Process Clause. A large majority of states have allowed same-sex couples to adopt and this

7
Obergefell v. Hodges 135 s. Ct. 2584
8
388 U.S 1 (1967)
9
Supra note 7.
10
Id.
11
Id.
12
381 U.S 479 (1965)
13
Id.
14
Id.
provides powerful confirmation from the law itself that gays and lesbians can create loving,
supportive families. For these reasons, the Court found that the exclusion of same-sex couples
from the institution of marriage conflicts with Due Process and Equal Protection Clauses of the
Fourteenth Amendment and so the court struck down the impugned provisions of law.

5. INTERPRETATION OF STATUTE/ RULE APPLIED -

In this case, the Supreme Court of USA was faced with interpretation of the Equal Protection
and Due Process as granted by the Fourteenth Amendment yet again. To decide on the ambit
of fourteenth amendment and whether or not it includes right to marry, the courts took
assistance of external aids of Interpretation. The court revisited the principles upheld by it
relating to marriage and the history of the institution of marriage itself to arrive at the
conclusion that statutes defining marriage in an exclusive sense – a union between a man and
woman only- are contrary to the fourteenth amendment. Further, it relied on other legislations
of the same domain, i.e Personal laws to substantiate its reasoning. The Adoption laws of many
states allow same-sex couples to adopt a child thereby providing testimony to the fact that
same-sex couples are as capable (if not more) as heterosexual couples to raise a child and build
a family. The court also heavily relied on precedent to reach its decision.

NICOLE KOPAUNIK AND DANIELA PAIER V. AUSTRIA E910 / 2017

1. REFERENCE DETAILS-

Jurisdiction: Constitutional Court of Austria

Date of Decision: 04 December 2017
Bench: Dr. Gerhart Holzinger, Dr. Brigitte Bierlein, Dr. Christoph Autumn, Dr. Michael
Holoubek, Dr. Helmut Hörtenhuber and Dr. Claudia Kahr
Case Status: Concluded. Constitutional Court struck down the ban on same-sex marriage as
unconstitutional. Same-sex marriage became legal on 1 January 2019, though Court allowed
the plaintiff couples to marry immediately after their ruling to legalize same-sex marriage.

2. FACTS OF THE CASE-

Following the ruling of the European Court of Human Rights in Karner v. Austria15 in 2003,
cohabitating same-sex couples were given the same rights as cohabitating opposite-sex

15
(2003) 38 EHRR 528.
couples. First planned in 2007, registered partnerships have been legal in Austria since 1
January 2010. The Austrian Government had not legalised same-sex marriage due to
opposition by the Austrian People's Party (ÖVP). The Greens had however introduced a bill
in Parliament, and in 2015 a citizens' initiative "Ehe Gleich!" was set up to petition the
Parliament to consider the legalisation of same-sex marriage. They also filed a lawsuit
challenging the current law, however, it was dismissed by a lower court. [5] A second lawsuit
was heard on 21 March 2016 in Linz.[6] On 15 April 2016, a court dismissed the case as well.
On 12 October 2017, the Constitutional Court agreed to consider one of the cases challenging
the law barring same-sex marriage. On 5 December 2017, the Constitutional Court struck down
the ban on same-sex marriage as unconstitutional. The ruling would take effect on 1 January
2019, though the plaintiffs in the court case were allowed to marry prior to that date.

3. DECISION

The Court held that Same-sex couples will be allowed to marry in Austria as a law to the
contrary violated the principle of non-discrimination.

4. ANALYSIS-

Austria’s constitutional court examined a 2010 law that allows registered partnerships for
same-sex couples but prevents them from getting married. It acted at the request of two women
who were rejected by two lower authorities. The registered partnership law provides equal
rights in labour, immigration, pension, tax, and civil law to same-sex couples as marriage does
to opposite-sex couples. The court found that the distinction between marriage and registered
partnership could no longer be upheld without discriminating against same-sex couples.

5. INTERPRETATION OF STATUTE/ RULE APPLIED-

The Constitution of Austria (German: Österreichische Bundesverfassung) is the body of all

constitutional law of the Republic of Austria on the federal level. It is split up over many
different acts. Its center-piece is the Federal Constitutional Law (Bundes-Verfassungsgesetz),
which includes the most important federal constitutional provisions. One of them is the
principle of non-discrimination. The directive establishing a general framework for equal
treatment in employment and occupation was enacted in 2000. This framework
directive compelled all EU states to adopt, within three years, anti-discrimination legislation in
employment. That legislation had to include provisions to protect people from discrimination
on the basis of sexual orientation.

In practice, this protects EU citizens from being refused a job, or from being fired, because of
their sexual orientation. It also protects them from being harassed by a colleague due to their
sexual orientation. Since 1979, the Equal Treatment Act of Austria has regulated equal
treatment of women and men at work in private enterprises. In line with EU legislation, the Act
was extended to include the discrimination grounds of sexual orientation. The new regulations
took effect on 1 July 2004. Further, the registered partnership law of 2010, gave legal
recognition to the union of same sex couples. There seemed no reasonable ground to then deny
the same-sex couples marriage rights under the Austrian laws. The Constitutional Court of
Austria relied on Judgment of ECJ and International Precedents of countries like U.S.A to reach
to the conclusion that same-sex marriage shall be legalized. Further, this case is ode to the fact
that contemporaneous events constitute an important external aid to interpretation of statute.
History of the non-discrimination principle, the previous state of law (registered partnership)
and mischief which was sought to be resolved were considered by Court in the present case.