Section 377: 5 Landmark Cases

1) Naz Foundation v. Government of NCT of New Delhi and Others

Date of the Ruling:- Jul 2, 2009

Forum:- High Court of Delhi

Type of Forum:- Domestic

Background: The Naz Foundation India, a non-governmental organization committed to

HIV/AIDS intervention and prevention, filed a public interest litigation in the Delhi High Court
challenging the constitutionality of Section 377 of the India Penal Code, which makes it illegal
to engage in any "unnatural" sexual act, defined as sex other than heterosexual intercourse. The
Delhi High Court dismissed the original writ of petition in 2004 for lack of a cause of action.
However, on civil appeal the Supreme Court of India set aside the dismissal and ordered the
Delhi High Court to hear the petition on the merits. The petitioner argued that Section 377
encouraged discriminatory attitudes, abuse, and harassment of the gay community, and
significantly impaired HIV/AIDS prevention efforts and access to treatment. The National AIDS
Control Organization (NACO) under the Ministry of Health supported the petitioners in their
response.

Held: The Court found in favour of the petitioner and held that Section 377 was
unconstitutional.

First, the Court found it violated the right to dignity and privacy by citing the Universal Declaration
of Human Rights and European Court of Human Rights as well as the case of Francis Coralie
Mullin1 in which the Indian Constitutional Court defined dignity as requiring adequate shelter,
nutrition, clothing as well as the ability to freely socialize.

Next, the Court held that under Article 12 of the ICESCR and Article 21 of the Indian Constitution,
the state must fulfil "everyone's right to access the highest attainable standard of health" as
part of the right to life. The Court agreed that criminalization of homosexual conduct pushes
homosexuals into isolation and impedes access to adequate information for prevention of
HIV/AIDS.

After engaging in an analysis of the purpose of the law and the interests of state as weighed against
the rights of the petitioners, the Court found no legitimate state interest in upholding the statute
and found the classification of homosexuals to be in violation of the Constitution. Further, in light
of the evolution of domestic and international law regarding privacy, dignity, and the right to health

1 198 AIR 476

as well as changing social attitudes and understandings of sexual orientation, the Court found
section 377 to be an unconstitutional infringement on fundamental rights.

Significance of the Case:

Advocates in India have hailed this decision as a major victory for LGBT rights and the right to
adequate health, including information on HIV/AIDS and treatment in India. The reasoning of the
Court makes the critical linkages between non-discrimination and access to adequate healthcare
and how stigma and marginalization can impede access to substantive ESC rights.

2) Suresh Kumar Koushal and another v NAZ Foundation and others

Date of Decision: 11 December, 2013

Forum: Supreme Court of India

Jurisdiction: The Supreme Court of India (Civil Appellate Division)

Civil Appeal No.: 10972 of 2013

Facts of the Case:

The case concerns the constitutionality of Section 377 of the Indian Penal Code which was enacted
during the British administration in India in 1860. Section 377 created an offence of voluntarily
having carnal intercourse “against the order of nature” with any man, woman or animal, punishable
by up to ten years imprisonment or a fine. Although the provision appears to be neutral on its face,
it was argued to have a discriminatory effect on LGBT persons, particularly homosexual men.

Decision: The panel of two Supreme Court judges deciding the case allowed the appeal and
overturned the High Court’s previous decision of NAZ Foundation, finding its declaration to
be “legally unsustainable”. The Supreme Court ultimately found that Section 377 IPC does not
violate the Constitution and dismissed the writ petition filed by the Respondents. Regarding its
power to rule on the constitutionality of a law, the Supreme Court acknowledged that it and the
High Court are empowered to declare as void any law, whether enacted prior to the enactment of
the Constitution or after.

“Section 377 does not criminalise a particular people or identity or orientation. It merely
identifies certain acts which if committed would constitute an offence. Such a prohibition
regulates sexual conduct regardless of gender identity and orientation”.
 3) National legal service authority v. Union of India
Writ petition (civil) No.: 400 of 2012

Bench- K.s. Radhakrishnan, A.k. Sikri

Facts- This is a landmark case that highlights gender equality in India. The case was instituted to
protect the rights of transgender person as the third gender in India.

Main issue- Direction to the centre and the state government to recognise transgender as the
third sex:

Following directions issued-

(1) Hijras, Eunuchs apart from binary gender, be treated as "Third gender" for the purpose of
safeguarding their rights under part III of our constitution and the laws made by the Parliament
and the state legislature.

(2) "Transgender persons" right to decide their self identified gender is also upheld and the
centre and state government are directed to grant legal recognition of their gender identity such as
Male, female or as third gender.

(3) Court directed the centre and the state government to take steps to treat them as socially and
educationally backward classes of citizens and extends all kind of reservation in cases of admission
in educational institutions and for public appointments.

(4) Centre and state government are directed to operate separate HIV zero surveillance centres
since transgender face several sexual health issues.

(5) Centre and state governments should also take steps for framing various social welfare scheme
for their betterment.

4) Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India And Ors.

Decided: 24 August 2017

Citation(s)- Writ Petition (Civil) No. 494 OF 2012

History:

Case 1: MP Sharma v. Satish Chandra, 1954

1) 8 judges’ bench

2) The power to search and seize documents from the dalmia group
3) Right to privacy is not a fundamental right.

Case 2: Kharak Singh v. State Of U.P., 1962

1) 6 Judges’ bench

2) Subjected to surveillance and secret picketing of the house, periodical inquiries and verification
of movement.

3) Right to privacy is not a fundamental right

Background of the case-

Former Karnataka High Court Judge K.S. Puttaswamy filed a public interest litigation in 2012
against the Union of India

Aadhar scheme was challenged saying it violates fundamental rights to privacy and equality

According to him the collection of biometric data by govt. Agencies without any suitable
legislation are in contravention of privacy.

9 Judges’ Bench

The earlier judgments related to privacy were given by a highest 8 judges bench in case of M.P.
Sharma v. Satish chandra in 1954. In those judgements privacy was not declared as a fundamental
right, hence when case was filed Government said only a 9 bench judge can reconsider and alter
the judgment

Judgment:
Centre's argument was kicked off and the bench of 9 judges headed by J. S. Khehar, C.J., gave an
unanimous judgment on 24th August 2017.

The judgment also included a two page final order which states that M.P Sharma and Kharak Singh
are overruled and the right to privacy is fundamental right that it is intrinsic to life and liberty

5) Navtej Singh Johar & Ors v. Union of India thr. Secretary Ministry of
Law & Justice
Writ petition (criminal) no. 76 of 2016

Date of Judgement- September 6, 2018

Bench: Deepak Misra, A.M Khanwilkar, D.Y Chandrachud, Indu Malhotra, R.F Nariman,
JJJJJ…..

Facts-
The Writ Petition has been filed on 27th April 2016 to challenge the constitutional validity of
Section 377 of the Indian Penal Code, 1860 (“IPC”) on the specific ground that it criminalises
consensual sexual intercourse between adult persons belonging to the same sex in private. The
petition was filed by five members of the LGBT Community, dancer Navtej Singh Johar, journalist
Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and businesswomen Ayesha
Kapur. The petitioners claimed that the issues raised by them are different from those raised in
the curative petition in Suresh Koushal case.

Issues-
1. Whether Sec 377 of IPC is violative of Right to Equality under Art 14 of the constitution?

2. Whether Sec 377 is violative of Freedom of Speech and Expression under Art 19 of the
Constitution?

3. Whether Sec 377 is violative of Right to Life with dignity and privacy under Art 21 of the
Constitution?

4. Whether discrimination based on sexual orientation under Sec 377 makes it violative of Art 15
of the Constitution?

5. Whether Sec 377 is arbitrary as it makes consensual relationship a crime on the ground of it
being against the order of nature?

Judgement:
When the writ petition was first presented by dancer Navtej Singh Johar, before the three judge
bench, the bench referred to the Suresh Koushal case in which the Supreme Court overturned the
Naz Foundation judgement. The three-judge bench felt that there were a lot of aspects to be
considered regarding Section 377- determination of “order of nature”, social morality, rights of
sections of people, constitutional foundations, consenting adults, etc. Thus, the judges deemed the
case fit to be considered by a larger bench.

Considering the petitions and examining the same through various aspects, the learned five judge
bench of the Apex Court gave its judgement in favour of the petitioner and unanimously held
that Section 377 was unconstitutional as far as it criminalized consensual sex between two
adults of same or different sex. As the judgement was given by a five-judge bench, it is a binding
precedent on all courts in India.