Project Assignment on:

NAZ FOUNDATION: A NEW DAWN IN THE HORIZON OF EQUALITY

Submitted as per course requirement of the Indian Constitutional Law: The New
Challenges

Submitted to:
Dr. JUSTICE S. RAJENDRA BABU,

Course Teacher

Submitted by:
MANORANJAN
Roll No.479
1st year LLM (Business Law)

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE

 ACKNOWLEDGEMENT

Though I have taken efforts in this project, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Hon‘ble Dr. JUSTICE S. RAJENDRA BABU for his guidance and
constant supervision as well as for teaching the concept and methods of Research and in
providing necessary information and support in completing this project.

My thanks and appreciations also go to my batch mates and seniors in developing this
project.

MANORANJAN

ID No. 479

LL.M (1st Year)

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 RESEARCH METHODOLOGY

Aim and Objective:

The aim of this paper is to analyze the role of decision in Naz Foundation v. Government of
the NCT, in reforming the law relating to the rights of sexual minorities.

Scope and Limitation:

This paper analyzes the interpretation given by the Hon‘ble High Court of Delhi, to Articles
14 and 15 of the Indian Constitution, expanding the scope of those provisions. Though the
decision had elaborated the right to privacy and the dignity under Article 21, the paper has
not discussed the same, limiting itself within the perimeter of principle of equality.

Research Hypothesis

The researcher proceeds with the primary and main hypothesis that decision has expanded the
horizon of equality, accommodating the sexual minorities and has further expanded the scope
of Article 15 by giving it a horizontal application.

Research Methodology:

In this paper the researcher has primarily used descriptive and analytical methodology of
research.

Sources:

The researcher has relied upon the primary sources of Statutes and Caselaws and also on
secondary resources of books and academic journal articles.

Mode of Citation:

A uniform method of citation is followed throughout this paper

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 CONTENTS

INTRODUCTION ... 4

LEGISLATIVE HISTORY OF S.377 ... 4

BACKGROUND OF THE NAZ FOUNDATION CASE ... 5

A BRIEF ANALYSIS OF THE JUDGMENT ... 8

SECTION 377 AND THE RIGHT TO EQUALITY ... 10

SECTION 377 AND THE RIGHT AGAINST DISCRIMINATION ... 11

CONCLUSION ... 14

BIBLIOGRAPHY

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INTRODUCTION

Indian society has always been conservative about the sexual affairs and has been sceptical
about the sexual relationships other than within the institution of marriage. Homosexuality
has been in particular, detested and homosexuals were ostracised in the general society.
Owing to the collective nature of the Indian society it has excluded the promotion of
homosexual values and has by and large disapproved homosexuality and has treated it as a
criminal offence. But it is a stark reality that homosexuality has always prevailed in India
silently in various forms (like the Hijras). Homosexual behaviour has been widely perceived
in India as a psychological abnormality or a perversion. The Indian law follows an attitude in
tune with the general attitude of the public and under the S.377of the Indian Penal Code,
homosexual acts have been criminalised. In the Western societies, homosexual behaviour has
been tolerated and from early seventies it has been ceased to be considered as an abnormal
behaviour. Many of the Western countries have given the homosexuals the same status as
heterosexuals and have even allowed gay marriages. It is in this backdrop, that the call for
equal rights and decriminalisation of the homosexual behaviour gained strength in India.

LEGISLATIVE HISTORY OF S.377

At the core of the controversy involved here is the penal provision Section 377 IPC which
criminalizes sex other than heterosexual penile-vaginal. The legislative history of the subject
indicates that the first records of sodomy as a crime at Common Law in England were
chronicled in the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed that
sodomites should be burnt alive. Acts of sodomy later became 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 subsequent criminalisation of sodomy in the British Colonies.
Oral- genital sexual acts were later removed from the definition of buggery in 1817. And in
1861, the death penalty for buggery was formally abolished in England and Wales. However,
sodomy or buggery remained as a crime "not to be mentioned by Christians."
Indian Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India.
Section 377 IPC is contained in Chapter XVI of the IPC titled "Of Offences Affecting the
Human Body". Within this Chapter Section 377 IPC is categorised under the sub-chapter
titled "Of Unnatural Offences" and reads as follows:
377. Unnatural Offences - Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with imprisonment for life, or with

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imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine.
Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.
Macaulay had refrained from appending any guidance notes or illustrations to Section 377
disregarding the practice he followed for other provisions of the Penal Code. Macaulay was
apparently motivated by his puritanical belief that Section 377 involved ―an odious class of
offences [about which] as little as possible should be said.‖1
The English law was reformed in Britain by the Sexual Offences Act, 1967, which
decriminalised homosexuality and acts of sodomy between consenting adults (above age of
21) pursuant to the report of Wolfenden Committee. The Committee advising the Parliament
had recommended in 1957 repeal of laws punishing homosexual conduct. The Indian law is
still following the Victorian attitude.

BACKGROUND OF THE NAZ FOUNDATION CASE

In 2001, the Naz foundation, an NGO working on HIV/AIDS and sexual education and health
filed a writ petition in Delhi High Court, challenging the constitutional validity of S.377 of
IPC on the ground that it is prohibiting consensual sexual acts between the adults in private
and is hence violative of Articles 14, 15, 19 and 21 of the Constitution. According to
Petitioner NGO and those who supported the petition Homosexual and such other people
represents population segment that is extremely venerable to HIV/AIDS infections.
According to them the HIV/AIDS preventive efforts were severally impaired by the
discriminatory attitudes of the State Agency towards homo – sexuality as the same is covered
under section 377 of IPC, as a result of which basic fundamental Human right of such groups
(in minority) stood denied and they were subject to abuse, harassment, and assault from
public and public authorities. The Petitioner also contended that the said section to the extent
of their application violates the section 14, 15, 19 (1) (a) (b) (c) and (d) and Article 21 of the
Constitution of India and thus consensual sexual intercourse between two willing adult in
private is required to be saved and excepted from the panel provision contained in section
377 of IPC.

1
See Sonia K. Katyal, Sexuality and Sovereignty: the Global Limits and Possibilities of Lawrence, 14
WILLIAM AND MARY BILL OF RIGHTS L.J. 1429, 1452 (2006).

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As for the Union of India was concerned in this particular case2, it argued that the said section
has been generally invoked in cases of child sexually abuse and for complementary lacunae
in rape laws and not mere home sexuality. It also placed reliance upon the 42nd report of law
commission of India wherein it the Commission had justified that Indian society still
considers homo-sexuality as a criminal offence.3 The case saw Ministry of Home Affairs and
Ministry of Health & Family Welfare taking a contradictory stands on this matter. The
Ministry of Home Affairs (MHA) sought to justify the retention of Section 377 IPC, whereas
the Ministry of Health & Family Welfare insisted that continuance of Section 377 IPC has
hampered the HIV/AIDS prevention efforts. The Ministry of Home Affairs, in the affidavit,
had sought to justify the retention of Section 377 IPC on the statute book broadly on the
reason that it has been generally invoked in cases of allegation of child sexual abuse and for
complementing lacunae in the rape laws and not mere homosexuality. National Aids Control
Organisation (NACO) in its affidavit submitted on behalf of Ministry of Health and Family
Welfare has submitted confirms the case set out by the petitioner that homosexual community
(MSM etc.) is particularly susceptible to attracting HIV/AIDS in which view a number of
initiatives have been taken by NACO to ensure that proper HIV intervention and prevention
efforts are made available to the said section of the society by, amongst other things,
protecting and promoting their rights. In the reply affidavit, NACO states that the groups
identified to be at greater risk of acquiring and transmitting HIV infection due to a high level
of risky behaviour and insufficient capacity or power for decision making to protect
themselves from infection, generally described as 'High Risk Groups' (HRG), broadly include
men who have sex with men (MSM) and female sex workers and injecting drug users.

A bench of Delhi High Court comprising Chief Justice B.C. Patel and Justice Badar Durrez
Ahmed had dismissed the application in 2004 on the ground that the petitioner had no cause
of action and that ‗such a petition can‘t be entertained to explain the academic challenge to
the constitutionality of the legislation.‘ The said order was set aside by the Hon‘ble Supreme
Court pointing out that the matter does require judicial consideration and is not of a nature

2
In this particular case the Ministry of Home affairs and Ministry of Health and family welfare had taken
contradictory stands as is clear from the affidavit filed by two wings of Union of India. The Ministry of Home
affairs sought to justify the retention of section 377 of IPC, whereas ministry of Health and Family insistent that
continuance of section 377 of IPC has hampered the HIV/AIDS prevention efforts.
3
In the 172nd report, the Law Commission has recommended deletion of Section 377 IPC, though in the 42 nd report it
had recommended the retention of the provision. In the 172nd report, the Law Commission of India, focused on the
need to review the sexual offences laws in the light of increased incidents of custodial rape and crime of sexual abuse
against youngsters, and inter alia, recommended deleting the section 377 IPC by effecting the recommended
amendments in Sections 375 to 376E of IPC.

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which could be dismissed as a mere academic issue.4 The main issues raised in the Naz
Foundation case5 were, whether (i) public morality is aground for restriction of fundamental
rights; (ii) Section 377 of IPC violates constitutional guarantee of equality, privacy and
dignity; (iii) decriminalisation of consensual homosexuality would corrupt public morals and
increase delinquent behaviour; (iv) State has a compelling interest of public health to
interfere upon a fundamental right; (v) criminalisation of homosexuality is an impediment to
public health and prevention of HIV/AIDS.
Section 377 has been extensively used by the law enforcers to harass and exploit
homosexuals and transgender persons. Various such incidents have come to light in the recent
past. In Jayalakshmi v. State of Tamil Nadu6, Pandian, a transgender, was arrested by the
police on charges of theft. He was sexually abused in the police station which ultimately led
him to immolate himself in the premises of the police station. Similarly, policemen arrested
Narayana, a transgender, in Bangalore on suspicion of theft, and was kept in custody, without
informing him of the grounds of arrest or extending any opportunity to him to defend himself.
His diary was confiscated by the police and he was threatened with dire consequences if he
did not assist in identifying other transgenders he was acquainted with. 7 Homosexuals have
also been at the aggrieved end of financial extortion by the police in exchange for not
revealing their identities to society.8 A peculiar use of Section 377 was seen in Lucknow
when workers of Bharosa, a NGO aimed at spreading awareness about AIDS, were arrested
for distribution of pamphlets providing tips on safe sex to homosexuals.9 The same agencies
of the law have been apathetic towards these sexual minorities in the realm of their health and
safety. When a medical team inspected Tihar Jail, reported a high incidence of sodomy in the
prison and recommended provision of condoms to inmates to prevent a proliferation of
diseases, the Inspector-General of Prisons chose to deny any such providence, thinking it to

4
See Mahendra P. Singh, Decriminalisation of Homosexuality and the Constitution, 2 NUJS L. Rev. 361
(2009), 362
5
Naz Foundation v. Government of the NCT, MANU/DE/0869/2009:2010CriLJ94:160(2009)DLT277
6
(2007) 4 MLJ 849
7
People‘s Union for Civil Liberties (PUCL) Report on Rampant violation of rights of Sexual Minorities, p.14
(2000).
8
Ibid
9
Arvind Narrain, The Articulation of Rights around Sexuality and Health: Subaltern Queer Cultures in India in
the Era of Hindutva, in Health and Human Rights 153 (2004).; See also Alok Gupta, Section 377 and The
Dignity of Indian Homosexuals, Economic and Political Weekly, Vol. 41, No. 46 (Nov. 18-24, 2006), pp. 4815-
4823

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be a latent confession of rampant homosexual behaviour in the prison.10 As a consequence of
the inactivity of the prison staff, the AIDS Bhedbhav Virodhi Andolan filed a petition in the
Delhi High Court challenging the official position and the constitutionality of Section 377.11
Similarly, the Indian Council for Medical Research (ICMR) and Indian Medical Association
(IMA) have not prescribed any guidelines for Sex Reassignment Surgery (SRS). This
reticence on the part of the medical sphere has led many transgenders to approach quacks,
putting themselves at grave risk.12
From the numerous instances of abuse and violence against homosexuals and transgenders, it
is evident that Section 377 has been grossly misused. It is equally obvious that a judicial
move to address this concern was exigent in the face of a law enforcement framework so
hostile that exploitation at the hands of the alleged protectors became a quotidian affair for
sexual minorities in India.

A BRIEF ANALYSIS OF THE JUDGMENT

The Delhi high court judgment is full of learning and references to literature on psychiatry,
genetics, religion and judgments delivered in other jurisdictions, particularly the US and
Canada. It refers to the report of the British Wolfenden Committee and the Sexual Offences
Act, 1967, by which English law decriminalised homosexuality. It fortifies its conclusions by
the 172nd report of the Law Commission which also took the same view: ‗Section 377 in its
present form has to go‘. The Delhi high court judgment is substantially based upon the
citizen‘s right to privacy and a life of dignity. The court correctly concluded that these rights
can only be subordinated to some overriding public interest. The submission was in the teeth
of the view of the American Psychiatric Association presented to the United States

Supreme Court in 2002 in the case of Lawrence v. Texas13:

―According to current scientific and professional understanding, however, the core feelings
and attractions that form the basis for adult sexual orientation typically emerge between
middle childhood and early adolescence. Moreover, these patterns of sexual attraction
generally arise without any prior sexual experience. Thus, homosexuality is not a disease or
10
Siddharth Narrain, The Queer Case of Section 377 (http://www.sarai.net/publications/readers/05-bareacts/
06_siddharth.pdf; last accessed on 13th August, 2009).
11
Ruth Vanita, QUEERING INDIA 15 (2002).
12
Siddharth Narrain, Being a Eunuch in India (http://www.countercurrents.org/gen-narrain141003.htm; last
accessed on 13th August, 2009).
13
10 CARDOZO WOMEN‘S L.J. 365, 380-381 (2004)

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mental illness that needs to be, or can be, „cured‟ or „altered‟, it is just another expression of
human sexuality‖.
The judgment has cited from a large number of international and comparative constitutional
sources and has actually relied on those foreign precedents to shape an imaginative outcome
relevant to the local context. Naz Foundation‘s foreign references include materials from the
usual suspects, the United States and the United Kingdom, as well as decisions from unlikely
places, such as Hong Kong, Fiji, and Nepal. Those latter decisions are particularly important
because they remind the cynic that gay rights aren‘t some luxurious Western construct.
Moreover, the reference dates of various online sources cited in Naz Foundation reveal that
the judges continued to research the issues long after the case had been reserved for
judgment. The learned Judges have also relied on several international ―soft-law‖ sources,
such as the ―Yogyakarta Principles,‖ and the ―London Declaration of Principles on Equality‖
to argue that there is an emerging norm of international law on sexual orientation.14
The Delhi Judgment does not recommend homosexuality or even approve of it. But it is
obnoxious arrogance to claim that my conduct is natural while others violate nature. The
Constitution of India does not tolerate such tyranny. Hon‘ble High Court held that if a court
finds that a claimed right is entitled to protection as a fundamental privacy right, the law
infringing it must satisfy the ―compelling state interest test‖. While it could be ―a compelling
state interest‖ to regulate by law, the area for the protection of children and others incapable
of giving a valid consent or the area of non-consensual sex, enforcement of public morality
does not amount to a ―compelling state interest‖ to justify invasion of the zone of privacy of
adult homosexuals engaged in consensual sex in private without intending to cause harm to
each other or others. Thus popular morality or public disapproval of certain acts is not a valid
justification for restriction of the fundamental rights under Article 21. Popular morality, as
distinct from a constitutional morality derived from constitutional values, is based on shifting
and subjecting notions of right and wrong. If there is any type of ―morality‖ that can pass the
test of compelling state interest, it must be ―constitutional‖ morality and not public morality.
This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the
Constituent Assembly15

14
See Vikram Raghavan, NAVIGATING THE NOTEWORTHY AND NEBULOUS IN NAZ FOUNDATION,
[2009] NUJSLawRw 22; (2009) 2(3) NUJS Law Review 397
15
URL: http://www.indiaproposes.com/atriclepage.php?arcId=2, accessed on 22- 09- 2009)

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SECTION 377 AND THE RIGHT TO EQUALITY

Article 1416 of the Indian Constitution comprises of a dual approach which guarantees
equality before law and equal protection of laws. The right of equality lacks an absolutist
nature in as much as it permits for classification between individuals,17 which consequently
relaxes the equal protection of laws to all. In the instant case, the point for scrutiny before the
Court was whether a classification between heterosexuals and homosexuals was permissible.
The Hon‘ble High Court in this case had followed the two fold test of intelligible differentia
and direct nexus.18 In the instant case, the Delhi High Court had ruled that Section 377
reflected class legislation, in disfavour of the LGBT community, and therefore failed the test
of Article 14.
The text of, Section 377 proscribes sexual acts involving carnal intercourse that are
considered ―unnatural‖ irrespective of whether they involve same-sex or opposite sex
partners.19 When we scan through the case laws under the section we can see that it has been
used in prosecutions involving oral sex and anal sex. There is ample evidence to suggest that
neither anal sex nor oral sex falls within exclusive homosexual domain nor many
heterosexual couples routinely engage in it. Even though the Naz Foundation has conceded
this facial neutrality of Section 377,20 the bench points out, the ―sexual acts, which are
criminalized are associated more closely with one class of persons, namely the homosexuals‖
as a class. In support of its reasoning that Section 377 is hostile to gays, the bench has cited
Justice O‘Connor‘s Lawrence opinion criticizing the underlying statute in that case for
singling out homosexuals as a class. But the bench has conveniently forgotten to mention the
fact that the Lawrence statute only proscribed homosexual conduct; it was even called the
―Texas Homosexual Conduct Statute,‖ which had rendered it an easy target for Justice
O‘Connor, who wrote a narrowly tailored concurring opinion without joining the majority
view.21

16
14. The State shall not deny to any person equality before the law or the equal protection of the laws within
the territory of India.
17
State of Bombay v. F.N. Balsara AIR 1951 SC 318
18
― A classification shall be deemed reasonable if it stands a two-fold test: it should base itself on a reasonable
differentia and should have a direct nexus with the object sought to be achieved through such classification.‖,
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75: [1952] SCR 284
19
See supra note 1
20
Supra note 5, at ¶ 94
21
See supra note 14

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Though the language of the impugned section is facially neutral, there is clear and convincing
evidence that the provision had been used to harass and intimidate those with same-sex
attraction22. The absence of any textual guidance, unlike the other sections of the Penal Code,
regarding the scope of the provision, fuels and abets the misuse of the section. The
ambiguous nature of the phrase ―against the order of nature‖, which forms the fulcrum of the
provision and the inconsistent interpretations given to it, vests law-enforcement agencies with
unbridled discretion, which has been seriously abused, brings it under the shadow of
arbitrariness23. Taking these facts together, a persuasive argument could have been made that
Section 377 is both arbitrary and unreasonable and consequently unable to pass constitutional
muster under the so-called ―new doctrine‖ of equality24 that the Court announced in its much-
cited decision, E.P. Royappa v. Tamil Nadu.25 The doctrine had been adopted previously by
the Supreme Court in Mithu v. State of Punjab26 to strike down Section 303 of the Penal
Code because it was ―arbitrary beyond the bounds of all reason.‖ Interestingly, though Naz
Foundation refers to Royappa‟s decision, in its general survey of Indian equality principles,
the Court had curiously refrained from invoking the equality doctrine when applying those
principles to Section 377, and had relied instead on the statute‘s unreasonable classification.

SECTION 377 AND THE RIGHT AGAINST DISCRIMINATION

Article 1527 guarantees the right against discrimination on various grounds, including ‗sex‘.
The question for deliberation in Court was whether ‗sex‘ under the text of Art. 15 was

22
See supra notes 6-10
23
See supra note 14
24
“...equality is antithetic to arbitrariness. Equality and arbitrariness are sworn enemies; one belongs to the
rule of law in a republic, while the other, to the whim and caprice of an absolute monarch.” E.P. Royappa v.
Tamil Nadu, MANU/SC/0380/1973, at ¶ 85
25
Id: AIR 1974 SC 555: (1974) 4 SCC 3.
26
1983 AIR 473, 1983 SCR (2) 690
27
15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place
of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of
State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.]

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inclusive of ‗sexual orientation28‘. The sexual minorities have always realised the existence
of a gap between ‗sex‘ and ‗gender‘. While sex is the identification of oneself through one‘s
physical attributes, gender is a far more personal identification of the self through one‘s
mental looking glass. Transgenders have faced the wrath of the authorities the most, owing to
the lack of appreciation of the sex-gender dichotomy by the authorities. Answering to the
question affirmatively, the Court held that, sexual orientation is a ground analogous to sex
and that discrimination on the basis of sexual orientation is not permitted by Article 15. Thus
forcing someone to behave in accordance with predefined notions of what it means to be a
―man‖ or a ―woman‖ can be considered discrimination analogous to discrimination on
grounds of sex. The court had arrived at this decision, keeping in mind the International
Covenant on Civil and Political Rights and its interpretation in the case of Toonen v.
Australia.29In this case, it was observed that, the reference to 'sex' in Article 2, paragraphs 130
and 2631 (of the ICCPR) is to be taken as including 'sexual orientation'.32

Giving a harmonious interpretation to the views expressed by the Hon‘ble Supreme Court in
the cases of Anuj Garg v. Union of India33 and Ashoka Kumar Thakur v. Union of India,34

2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making
any special provision, by law, for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their
admission to educational institutions including private educational institutions, whether aided or unaided by the
State, other than the minority educational institutions referred to in clause (1) of article 30.]
28
The Yogyakarta Principles define the expression "sexual orientation" and "gender identity" as follows:
"Sexual Orientation" is understood to refer to each person's capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender
or more than one gender;" See supra note 5 at ¶ 44
29
No.488/1992 CCPR/C/ 50/D/488/1992, March 31, 1994.
30
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
31
Article 26 : “All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.”
32
To arrive at the notion of analogous ground of discrimination, the Court draws from decisions of the Canadian
and South African Supreme Courts which have understood analogous grounds of discrimination in these terms:
―what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions
made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only
at unacceptable cost to personal identity‖, See supra note 3 at ¶94
33
(2008) 3 SCC 1

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regarding the application of the doctrine of strict scrutiny35, the Court declared that, though
an action aimed to protect vulnerable groups in society may be exempted from strict judicial
scrutiny, a legislation that targeted vulnerable sections was to be strictly scrutinized at the
altar of Article 15.36 In Corbiere v. Canada37, the Supreme Court of Canada recognized the
virulence that was implicit in discrimination towards the sexual minorities at the hands of the
law. Such discrimination was never based on any form of intelligible differentia, but on the
personal sexual preferences of people. As a result, the discrimination meted out to the sexual
minorities constituted a grave deprivation of the right to dignity of the individual. 38 To read
‗sex‘ as inclusive of ‗sexual orientation‘ is a transcendental step in terms of the judicial
approach towards sexual minorities.
The Court had concluded that Article 15(2) incorporates the notion of horizontal application
of the rights.39 It may be safely presumed that the Hon‘ble Justices had adopted this stance,
keeping in mind, the harassment and abuse that homosexuals face at the hands of non-state
actors like goondas. Owing to the horizontal nature of the right to non-discrimination, the
failure of the police to protect homosexuals when they are discriminated against by fellow
citizens shall amount to a violation. Without such horizontal protections, the police could
simply outsource discrimination to private citizens by turning a blind eye to crimes
perpetrated against LGBT people. The Court‘s rule could have also implications beyond
34
(2008) 6 SCC 1
35
To pass strict scrutiny, the law or policy must satisfy three tests:
It must be justified by a compelling governmental interest. While the Courts have never brightly
defined how to determine if an interest is compelling, the concept generally refers to something
necessary or crucial, as opposed to something merely preferred. Examples include national security,
preserving the lives of multiple individuals, and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action
encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then
the rule is not considered narrowly tailored.
The law or policy must be the least restrictive means for achieving that interest, that is, there cannot
be a less restrictive way to effectively achieve the compelling government interest. The test will be met
even if there is another method that is equally the least restrictive. Some legal scholars consider this
"least restrictive means" requirement part of being narrowly tailored, though the Court generally
evaluates it separately.
36
The High Court held that, ―On a harmonious construction of the two judgments, the Supreme Court must be
interpreted to have laid down that the principle of 'strict scrutiny' would not apply to affirmative action under
Article 15(5) but a measure that disadvantages a vulnerable group defined on the basis of a characteristic that
relates to personal autonomy must be subject to strict scrutiny.‖ Supra note 3 at ¶ 111.
37
[1999] 2 SCR 203 (Canada)
38
Harksen v. Lane 1998 (1) SA 300 (CC)
39
Supra note 4 at ¶ 104; horizontal application of the right implies the rights of the citizens against each other.

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severe cases of harassment and abuse, in cases of more day to day discrimination. Article 15
lists specific public places where sex discrimination is illegal, including shops, restaurants,
hotels, and places of public entertainment. Thus, if an LGBT person were turned away from a
shop because of his sexual orientation or gender identity, then his right to non-discrimination
would have been violated.
Thus, the ruling of the High Court lays down the path of emancipation of the transgenders
through its recognition of the dichotomy surrounding their lives. Further, recognition of this
dichotomy reveals a shirking of anachronisms associated with judicial thought which by itself
begets a hitherto unknown approach of empathy and care towards the sexual minorities.
Further, the construction of Art.15 by the Hon‘ble court giving it a horizontal application is
having implications outside the boundaries of impugned case. It shall thus enable every such
individual who is being discriminated only on the grounds of religion, race, caste, sex, place
of birth or any of them, by another individual or individuals, to seek remedy under Art. 15.
Thus, every Muslim or Dalit citizen who is denied housing by a landlord on the ground of his
or her religion has a constitutionally enforceable claim against the landlord.

CONCLUSION

The notion of equality in the Indian Constitution flows from the ‗Objective Resolution‘
moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this
Resolution wished that the House should consider the Resolution not in a spirit of narrow
legal wording, but rather look at the spirit behind that Resolution. He said, ―Words are magic
things often enough, but even the magic of words sometimes cannot convey the magic of the
human spirit and of a Nation‘s passion…….. (The Resolution) seeks very feebly to tell the
world of what we have thought or dreamt of so long, and what we now hope to achieve in the
near future.‖40 If there is one constitutional tenet that can be said to be underlying theme of
the Indian Constitution, it is that of 'inclusiveness'. Indian Constitution reflects this value
deeply ingrained in Indian society, nurtured over several generations.

The judgment of the Delhi High Court reflects a sense of conscience and empathy towards
the sexual minorities, emotions that were hitherto unknown. Section 377, in its
criminalisation of homosexual activity, was a repressive measure on the fundamental rights
of the LGBT community. The repression of anti-homosexuality laws has been recognized by

40
Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65

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various legal systems in the world. From Lawrence v. Texas41 in the United States to Minister
of Home Affairs v. Fourie42 in South Africa, the judicial framework of the common law
system has recognized the rights of homosexuals to their freedom of sexual preference. On a
more abstract level, the judgment attempts to answer the question of collective societal
morality against the individual‘s liberty. The Court has prioritized individual liberty over the
idea of collective social morality and thus, has laid the path for an individualistic approach in
judicial decisions. In so far as its implications are concerned, the judgment may be overridden
by a legislative measure, but it shall stand as one of the cornerstone judgments in the history
of individual rights and constitutional governance in India.

41
Supra note 13
42
(CCT25/03) [2003] ZACC 11: 2003 (5) SA 301 (CC); This case legalised same-sex marriages in South
Africa.

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 BIBLIOGRAPHY

STATUTES

1. INDIAN PENAL CODE, 1860;

2. THE CONSTITUTION OF INDIA

BOOKS

1. Arvind Narrain and Marcus Eldridge, THE RIGHT THAT DARES TO SPEAK ITS
NAME, Alternative Law Forum, Bangalore, 2009;
2. M.P.Jain, INDIAN CONSTITUTIONAL LAW, Wadhwa & Co.Nagpur (ed.5, 2003)

3. Ruth Vanita, QUEERING INDIA, Routledge, New York (2002).

ARTICLES
1. Alok Gupta, ‗Section 377 and The Dignity of Indian Homosexuals‘, Economic and
Political Weekly, Vol. 41, No. 46 (Nov. 18-24, 2006), pp. 4815-4823
2. Arvind Narrain, ‗The Articulation of Rights around Sexuality and Health: Subaltern
Queer Cultures in India in the Era of Hindutva‟, Health and Human Rights 153
(2004).;
3. Bhargav K. Joshi and Neha Mary Koshy ‗Judicial Interpretation of Article 21 in The
Naz Foundation Case: Privacy - A Moral Right or A Creature of an Amoral
Constitution?‟, 2 NUJS L. Rev. 541 (2009)
4. Dr. Mahendra P. Singh, ‗Decriminalisation of Homosexuality and the Constitution‟,
2 NUJS L. Rev. 361 (2009)
5. People‘s Union for Civil Liberties (PUCL) Report on Rampant violation of rights of
Sexual Minorities Available at
http://www.pucl.org/reports/Karnataka/2001/sexualminorities-pr.htm; (last visited on
30th of November, 2011)
6. Siddharth Narrain, Being a Eunuch in India (http://www.countercurrents.org/gen-
narrain141003.htm; last visited on 29th of November, 2011)
7. Siddharth Narrain, The Queer Case of Section 377
(http://www.sarai.net/publications/readers/05-bareacts/ 06_siddharth.pdf; last visited
on 30th of November, 2011).
8. Sonia K. Katyal, Sexuality and Sovereignty: the Global Limits and Possibilities of
Lawrence, 14 WILLIAM AND MARY BILL OF RIGHTS L.J. 1429, 1452 (2006).
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 9. Vikram Raghavan, Navigating The Noteworthy And Nebulous In Naz Foundation, 2
NUJS L. Rev. 397 (2009)

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