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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

JUSTICE S. MANORANJAN ID No. My thanks and appreciations also go to my batch mates and seniors in developing this project.ACKNOWLEDGEMENT Though I have taken efforts in this project. it would not have been possible without the kind support and help of many individuals. 479 LL. I am highly indebted to Hon‘ble Dr. 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.M (1st Year) 1|Page . I would like to extend my sincere thanks to all of them.

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.RESEARCH METHODOLOGY Aim and Objective: The aim of this paper is to analyze the role of decision in Naz Foundation v. the paper has not discussed the same. Scope and Limitation: This paper analyzes the interpretation given by the Hon‘ble High Court of Delhi. limiting itself within the perimeter of principle of equality. expanding the scope of those provisions. Government of the NCT. Mode of Citation: A uniform method of citation is followed throughout this paper 2|Page . to Articles 14 and 15 of the Indian Constitution. accommodating the sexual minorities and has further expanded the scope of Article 15 by giving it a horizontal application. Though the decision had elaborated the right to privacy and the dignity under Article 21. Research Hypothesis The researcher proceeds with the primary and main hypothesis that decision has expanded the horizon of equality. in reforming the law relating to the rights of sexual minorities.

.. 4 BACKGROUND OF THE NAZ FOUNDATION CASE . 10 SECTION 377 AND THE RIGHT AGAINST DISCRIMINATION . 5 A BRIEF ANALYSIS OF THE JUDGMENT . 14 BIBLIOGRAPHY 3|Page ....377 . 8 SECTION 377 AND THE RIGHT TO EQUALITY .CONTENTS INTRODUCTION . 11 CONCLUSION ....... 4 LEGISLATIVE HISTORY OF S....

Acts of sodomy later became penalized by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I. homosexual acts have been criminalised. And in 1861. or with 4|Page . 1290. that the call for equal rights and decriminalisation of the homosexual behaviour gained strength in India." Indian Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India. after which it became the charter for the subsequent criminalisation of sodomy in the British Colonies. the death penalty for buggery was formally abolished in England and Wales. 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. homosexual behaviour has been tolerated and from early seventies it has been ceased to be considered as an abnormal behaviour. 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. detested and homosexuals were ostracised in the general society.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. But it is a stark reality that homosexuality has always prevailed in India silently in various forms (like the Hijras). Unnatural Offences . Both texts prescribed that sodomites should be burnt alive. 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. 1300. woman or animal.377of the Indian Penal Code. Section 377 IPC is contained in Chapter XVI of the IPC titled "Of Offences Affecting the Human Body". In the Western societies. and later in the Britton. The Indian law follows an attitude in tune with the general attitude of the public and under the S. However. Many of the Western countries have given the homosexuals the same status as heterosexuals and have even allowed gay marriages. Oral. It is in this backdrop.genital sexual acts were later removed from the definition of buggery in 1817. Within this Chapter Section 377 IPC is categorised under the sub-chapter titled "Of Unnatural Offences" and reads as follows: 377. sodomy or buggery remained as a crime "not to be mentioned by Christians. Homosexuality has been in particular. shall be punished with imprisonment for life. Homosexual behaviour has been widely perceived in India as a psychological abnormality or a perversion.Whoever voluntarily has carnal intercourse against the order of nature with any man.

which decriminalised homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the report of Wolfenden Committee. Sexuality and Sovereignty: the Global Limits and Possibilities of Lawrence.‖1 The English law was reformed in Britain by the Sexual Offences Act. 1452 (2006). Katyal. The Committee advising the Parliament had recommended in 1957 repeal of laws punishing homosexual conduct. 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. 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. and assault from public and public authorities. 15. The Petitioner also contended that the said section to the extent of their application violates the section 14.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.imprisonment of either description for a term which may extend to ten years. BACKGROUND OF THE NAZ FOUNDATION CASE In 2001.J. 14 WILLIAM AND MARY BILL OF RIGHTS L. The Indian law is still following the Victorian attitude. Explanation . 19 and 21 of the Constitution. challenging the constitutional validity of S. 1429. harassment. an NGO working on HIV/AIDS and sexual education and health filed a writ petition in Delhi High Court. 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. 15. 1 See Sonia K. as a result of which basic fundamental Human right of such groups (in minority) stood denied and they were subject to abuse. the Naz foundation. and shall also be liable to fine.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. 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. 5|Page . 1967.

In the 172nd report. 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.C. though in the 42 nd report it had recommended the retention of the provision.) 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. 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. recommended deleting the section 377 IPC by effecting the recommended amendments in Sections 375 to 376E of IPC. generally described as 'High Risk Groups' (HRG). amongst other things.‘ 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 Law Commission has recommended deletion of Section 377 IPC. The Ministry of Home Affairs. in the affidavit. 6|Page . and inter alia. The Ministry of Home affairs sought to justify the retention of section 377 of IPC. A bench of Delhi High Court comprising Chief Justice B. The Ministry of Home Affairs (MHA) sought to justify the retention of Section 377 IPC. protecting and promoting their rights.As for the Union of India was concerned in this particular case2. broadly include men who have sex with men (MSM) and female sex workers and injecting drug users. 3 In the 172nd report. the Law Commission of India. 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.3 The case saw Ministry of Home Affairs and Ministry of Health & Family Welfare taking a contradictory stands on this matter. 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. 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. 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. In the reply affidavit. whereas ministry of Health and Family insistent that continuance of section 377 of IPC has hampered the HIV/AIDS prevention efforts. 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. whereas the Ministry of Health & Family Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts.

in Bangalore on suspicion of theft. in Health and Human Rights 153 (2004). 41. He was sexually abused in the police station which ultimately led him to immolate himself in the premises of the police station.. 2006).4 The main issues raised in the Naz Foundation case5 were. No. 361 (2009). 7 Homosexuals have also been at the aggrieved end of financial extortion by the police in exchange for not revealing their identities to society. Section 377 has been extensively used by the law enforcers to harass and exploit homosexuals and transgender persons. (v) criminalisation of homosexuality is an impediment to public health and prevention of HIV/AIDS. State of Tamil Nadu6. MANU/DE/0869/2009:2010CriLJ94:160(2009)DLT277 (2007) 4 MLJ 849 People‘s Union for Civil Liberties (PUCL) Report on Rampant violation of rights of Sexual Minorities. See also Alok Gupta. 2 NUJS L. and was kept in custody.8 A peculiar use of Section 377 was seen in Lucknow when workers of Bharosa. (ii) Section 377 of IPC violates constitutional guarantee of equality. pp. The Articulation of Rights around Sexuality and Health: Subaltern Queer Cultures in India in the Era of Hindutva. Section 377 and The Dignity of Indian Homosexuals. a transgender. Various such incidents have come to light in the recent past. privacy and dignity. without informing him of the grounds of arrest or extending any opportunity to him to defend himself. Government of the NCT. Vol. Similarly. In Jayalakshmi v. was arrested by the police on charges of theft. Pandian. When a medical team inspected Tihar Jail. (iii) decriminalisation of consensual homosexuality would corrupt public morals and increase delinquent behaviour.9 The same agencies of the law have been apathetic towards these sexual minorities in the realm of their health and safety. Rev. Singh.14 (2000). reported a high incidence of sodomy in the prison and recommended provision of condoms to inmates to prevent a proliferation of diseases. were arrested for distribution of pamphlets providing tips on safe sex to homosexuals.which could be dismissed as a mere academic issue. 46 (Nov. 48154823 7|Page . a transgender. 362 5 6 7 Naz Foundation v. a NGO aimed at spreading awareness about AIDS. Decriminalisation of Homosexuality and the Constitution. p. 18-24. (iv) State has a compelling interest of public health to interfere upon a fundamental right. thinking it to 4 See Mahendra P. policemen arrested Narayana. 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. 8 9 Ibid Arvind Narrain. Economic and Political Weekly. the Inspector-General of Prisons chose to deny any such providence. whether (i) public morality is aground for restriction of fundamental rights.

J. last accessed on 13th August. however. 2009). it is evident that Section 377 has been grossly misused. by which English law decriminalised homosexuality. last accessed on 13th August. QUEERING INDIA 15 (2002). Siddharth Narrain. Texas13: ―According to current scientific and professional understanding. 380-381 (2004) 8|Page . 2009).12 From the numerous instances of abuse and violence against homosexuals and transgenders. religion and judgments delivered in other jurisdictions. 1967. the core feelings and attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence. 11 12 Ruth Vanita. 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.10 As a consequence of the inactivity of the prison staff. the Indian Council for Medical Research (ICMR) and Indian Medical Association (IMA) have not prescribed any guidelines for Sex Reassignment Surgery (SRS). genetics. It refers to the report of the British Wolfenden Committee and the Sexual Offences Act. particularly the US and Canada. This reticence on the part of the medical sphere has led many transgenders to approach quacks.htm. homosexuality is not a disease or 10 Siddharth Narrain. The Delhi high court judgment is substantially based upon the citizen‘s right to privacy and a life of dignity. Thus.pdf. Moreover.org/gen-narrain141003.be a latent confession of rampant homosexual behaviour in the prison. putting themselves at grave risk. 13 10 CARDOZO WOMEN‘S L. The Queer Case of Section 377 (http://www. these patterns of sexual attraction generally arise without any prior sexual experience. 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.11 Similarly. 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‘.sarai. 365. The court correctly concluded that these rights can only be subordinated to some overriding public interest. Being a Eunuch in India (http://www. the AIDS Bhedbhav Virodhi Andolan filed a petition in the Delhi High Court challenging the official position and the constitutionality of Section 377. A BRIEF ANALYSIS OF THE JUDGMENT The Delhi high court judgment is full of learning and references to literature on psychiatry.net/publications/readers/05-bareacts/ 06_siddharth.countercurrents.

(2009) 2(3) NUJS Law Review 397 15 URL: http://www.php?arcId=2. 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. Moreover. as distinct from a constitutional morality derived from constitutional values. „cured‟ or „altered‟.indiaproposes. such as Hong Kong.‖ and the ―London Declaration of Principles on Equality‖ to argue that there is an emerging norm of international law on sexual orientation. such as the ―Yogyakarta Principles. Popular morality. The learned Judges have also relied on several international ―soft-law‖ sources.09.mental illness that needs to be. accessed on 22. This aspect of constitutional morality was strongly insisted upon by Dr. [2009] NUJSLawRw 22. the law infringing it must satisfy the ―compelling state interest test‖. The Constitution of India does not tolerate such tyranny.14 The Delhi Judgment does not recommend homosexuality or even approve of it. Those latter decisions are particularly important because they remind the cynic that gay rights aren‘t some luxurious Western construct. or can be. and Nepal. Hon‘ble High Court held that if a court finds that a claimed right is entitled to protection as a fundamental privacy right.com/atriclepage. While it could be ―a compelling state interest‖ to regulate by law. is based on shifting and subjecting notions of right and wrong. 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. NAVIGATING THE NOTEWORTHY AND NEBULOUS IN NAZ FOUNDATION. But it is obnoxious arrogance to claim that my conduct is natural while others violate nature.2009) 9|Page . Naz Foundation‘s foreign references include materials from the usual suspects. Fiji. as well as decisions from unlikely places. If there is any type of ―morality‖ that can pass the test of compelling state interest. the United States and the United Kingdom. it is just another expression of human sexuality‖. Ambedkar in the Constituent Assembly15 14 See Vikram Raghavan. the area for the protection of children and others incapable of giving a valid consent or the area of non-consensual sex. it must be ―constitutional‖ morality and not public morality. 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. Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21.

Even though the Naz Foundation has conceded this facial neutrality of Section 377. the bench has cited Justice O‘Connor‘s Lawrence opinion criticizing the underlying statute in that case for singling out homosexuals as a class.21 16 14.17 which consequently relaxes the equal protection of laws to all. 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. In support of its reasoning that Section 377 is hostile to gays.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. it was even called the ―Texas Homosexual Conduct Statute. in disfavour of the LGBT community. and therefore failed the test of Article 14. F. namely the homosexuals‖ as a class.20 the bench points out. But the bench has conveniently forgotten to mention the fact that the Lawrence statute only proscribed homosexual conduct. the Delhi High Court had ruled that Section 377 reflected class legislation. State of West Bengal v.18 In the instant case.‖ which had rendered it an easy target for Justice O‘Connor. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. who wrote a narrowly tailored concurring opinion without joining the majority view. the ―sexual acts. the point for scrutiny before the Court was whether a classification between heterosexuals and homosexuals was permissible. which are criminalized are associated more closely with one class of persons. 17 State of Bombay v. The right of equality lacks an absolutist nature in as much as it permits for classification between individuals. The Hon‘ble High Court in this case had followed the two fold test of intelligible differentia and direct nexus. Section 377 proscribes sexual acts involving carnal intercourse that are considered ―unnatural‖ irrespective of whether they involve same-sex or opposite sex partners. In the instant case.N. AIR 1952 SC 75: [1952] SCR 284 19 20 21 See supra note 1 Supra note 5.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. at ¶ 94 See supra note 14 10 | P a g e . 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. Anwar Ali Sarkar. The text of.‖.

(2) No citizen shall.Though the language of the impugned section is facially neutral. 1983 SCR (2) 690 27 15. fuels and abets the misuse of the section. which forms the fulcrum of the provision and the inconsistent interpretations given to it. bathing ghats. at ¶ 85 25 26 Id: AIR 1974 SC 555: (1974) 4 SCC 3. tanks. restriction or condition with regard to— (a) access to shops.. on grounds only of religion.25 The doctrine had been adopted previously by the Supreme Court in Mithu v. race. regarding the scope of the provision. while the other. brings it under the shadow of arbitrariness23. caste. sex. the Court had curiously refrained from invoking the equality doctrine when applying those principles to Section 377.equality is antithetic to arbitrariness. The ambiguous nature of the phrase ―against the order of nature‖. which has been seriously abused. unlike the other sections of the Penal Code. to the whim and caprice of an absolute monarch. liability. sex. SECTION 377 AND THE RIGHT AGAINST DISCRIMINATION Article 1527 guarantees the right against discrimination on various grounds. Tamil Nadu.] 11 | P a g e . hotels and places of public entertainment. though Naz Foundation refers to Royappa‟s decision.‖ Interestingly. Tamil Nadu. one belongs to the rule of law in a republic. (3) Nothing in this article shall prevent the State from making any special provision for women and children. vests law-enforcement agencies with unbridled discretion. Taking these facts together. 15 was 22 23 See supra notes 6-10 See supra note 14 24 “. caste. Royappa v. (1) The State shall not discriminate against any citizen on grounds only of religion. 1983 AIR 473. State of Punjab26 to strike down Section 303 of the Penal Code because it was ―arbitrary beyond the bounds of all reason. or (b) the use of wells. 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 muchcited decision.” E. public restaurants. including ‗sex‘. and had relied instead on the statute‘s unreasonable classification.. E. in its general survey of Indian equality principles. there is clear and convincing evidence that the provision had been used to harass and intimidate those with same-sex attraction22. MANU/SC/0380/1973. 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. Royappa v.P. The question for deliberation in Court was whether ‗sex‘ under the text of Art. place of birth or any of them. be subject to any disability. Equality and arbitrariness are sworn enemies. place of birth or any of them. race.P. The absence of any textual guidance. roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

Transgenders have faced the wrath of the authorities the most. sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. 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. 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‖. colour. such as race. national or social origin.] 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.29In this case.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. the reference to 'sex' in Article 2. birth or other status. political or other opinion. property." See supra note 5 at ¶ 44 29 30 No. See supra note 3 at ¶94 33 (2008) 3 SCC 1 12 | P a g e . by law. individuals of a different gender or the same gender or more than one gender. without distinction of any kind. The court had arrived at this decision. The sexual minorities have always realised the existence of a gap between ‗sex‘ and ‗gender‘. the Court held that. the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race. sex. Article 26 : “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. and intimate and sexual relations with. colour. other than the minority educational institutions referred to in clause (1) of article 30. language.488/1992 CCPR/C/ 50/D/488/1992. March 31. 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. national or social origin. Australia. Union of India.inclusive of ‗sexual orientation28‘. whether aided or unaided by the State. While sex is the identification of oneself through one‘s physical attributes. paragraphs 130 and 2631 (of the ICCPR) is to be taken as including 'sexual orientation'. owing to the lack of appreciation of the sex-gender dichotomy by the authorities. Answering to the question affirmatively. Union of India33 and Ashoka Kumar Thakur v.32 Giving a harmonious interpretation to the views expressed by the Hon‘ble Supreme Court in the cases of Anuj Garg v. 1994. affectional and sexual attraction to. gender is a far more personal identification of the self through one‘s mental looking glass. it was observed that. sex. 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.” 31 32 To arrive at the notion of analogous ground of discrimination. Article 2 1. keeping in mind the International Covenant on Civil and Political Rights and its interpretation in the case of Toonen v. birth or other status. political or other opinion. In this respect. religion. property. religion. language.

Such discrimination was never based on any form of intelligible differentia. Canada37. Owing to the horizontal nature of the right to non-discrimination.36 In Corbiere v. as opposed to something merely preferred. The law or policy must be narrowly tailored to achieve that goal or interest. the Court declared that. the harassment and abuse that homosexuals face at the hands of non-state actors like goondas.‖ Supra note 3 at ¶ 111. The Court‘s rule could have also implications beyond 34 (2008) 6 SCC 1 To pass strict scrutiny. The test will be met even if there is another method that is equally the least restrictive. but on the personal sexual preferences of people. the failure of the police to protect homosexuals when they are discriminated against by fellow citizens shall amount to a violation. The law or policy must be the least restrictive means for achieving that interest. While the Courts have never brightly defined how to determine if an interest is compelling. and not violating explicit constitutional protections. the Supreme Court of Canada recognized the virulence that was implicit in discrimination towards the sexual minorities at the hands of the law. the police could simply outsource discrimination to private citizens by turning a blind eye to crimes perpetrated against LGBT people. The Court had concluded that Article 15(2) incorporates the notion of horizontal application of the rights. Lane 1998 (1) SA 300 (CC) Supra note 4 at ¶ 104. 37 38 39 [1999] 2 SCR 203 (Canada) Harksen v.39 It may be safely presumed that the Hon‘ble Justices had adopted this stance. 36 The High Court held that. the law or policy must satisfy three tests: 35 It must be justified by a compelling governmental interest. though the Court generally evaluates it separately.regarding the application of the doctrine of strict scrutiny35. Without such horizontal protections. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored. 13 | P a g e . there cannot be a less restrictive way to effectively achieve the compelling government interest. the concept generally refers to something necessary or crucial. 38 To read ‗sex‘ as inclusive of ‗sexual orientation‘ is a transcendental step in terms of the judicial approach towards sexual minorities. then the rule is not considered narrowly tailored. though an action aimed to protect vulnerable groups in society may be exempted from strict judicial scrutiny. preserving the lives of multiple individuals. keeping in mind. 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. Examples include national security. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest. a legislation that targeted vulnerable sections was to be strictly scrutinized at the altar of Article 15. the discrimination meted out to the sexual minorities constituted a grave deprivation of the right to dignity of the individual. that is. As a result. horizontal application of the right implies the rights of the citizens against each other. ―On a harmonious construction of the two judgments.

Further. Indian Constitution reflects this value deeply ingrained in Indian society.‖40 If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution. The judgment of the Delhi High Court reflects a sense of conscience and empathy towards the sexual minorities. nurtured over several generations. the ruling of the High Court lays down the path of emancipation of the transgenders through its recognition of the dichotomy surrounding their lives. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long. moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording. Thus. to seek remedy under Art. including shops. Nehru.severe cases of harassment and abuse. The repression of anti-homosexuality laws has been recognized by 40 Constituent Assembly Debates: Lok Sabha Secretariat. in its criminalisation of homosexual activity.15 by the Hon‘ble court giving it a horizontal application is having implications outside the boundaries of impugned case. hotels. 15. in cases of more day to day discrimination. He said. and what we now hope to achieve in the near future. Article 15 lists specific public places where sex discrimination is illegal.. 1946. was a repressive measure on the fundamental rights of the LGBT community. It shall thus enable every such individual who is being discriminated only on the grounds of religion. ―Words are magic things often enough. by another individual or individuals. Thus. race. 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. then his right to non-discrimination would have been violated. CONCLUSION The notion of equality in the Indian Constitution flows from the ‗Objective Resolution‘ moved by Pandit Jawaharlal Nehru on December 13. but rather look at the spirit behind that Resolution. sex. the construction of Art. it is that of 'inclusiveness'. pages 57-65 14 | P a g e . restaurants. in his speech. New Delhi: 1999. but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation‘s passion……. Thus. if an LGBT person were turned away from a shop because of his sexual orientation or gender identity. Vol. 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. Further. place of birth or any of them. emotions that were hitherto unknown. caste. and places of public entertainment. Section 377. I.

41 42 Supra note 13 (CCT25/03) [2003] ZACC 11: 2003 (5) SA 301 (CC). the judgment attempts to answer the question of collective societal morality against the individual‘s liberty. the judgment may be overridden by a legislative measure. Texas41 in the United States to Minister of Home Affairs v. On a more abstract level.various legal systems in the world. This case legalised same-sex marriages in South Africa. From Lawrence v. In so far as its implications are concerned. Fourie42 in South Africa. 15 | P a g e . but it shall stand as one of the cornerstone judgments in the history of individual rights and constitutional governance in India. has laid the path for an individualistic approach in judicial decisions. The Court has prioritized individual liberty over the idea of collective social morality and thus. the judicial framework of the common law system has recognized the rights of homosexuals to their freedom of sexual preference.

countercurrents.5. 46 (Nov. Dr. 2011) 6. last visited on 29th of November. 1452 (2006). Katyal. 41. Joshi and Neha Mary Koshy ‗Judicial Interpretation of Article 21 in The Naz Foundation Case: Privacy . INDIAN PENAL CODE. 2 NUJS L. 1429. 2011) 7. QUEERING INDIA.htm. Siddharth Narrain. 16 | P a g e . THE CONSTITUTION OF INDIA BOOKS 1. 541 (2009) 4. Sexuality and Sovereignty: the Global Limits and Possibilities of Lawrence. THE RIGHT THAT DARES TO SPEAK ITS NAME.pdf. M.org/gennarrain141003. (last visited on 30th of November. Alok Gupta. People‘s Union for Civil Liberties (PUCL) Report on Rampant violation of rights of Sexual Minorities Available at http://www. ‗Decriminalisation of Homosexuality and the Constitution‟. 4815-4823 2.J. Wadhwa & Co. New York (2002).P. Health and Human Rights 153 (2004). 8.A Moral Right or A Creature of an Amoral Constitution?‟. Being a Eunuch in India (http://www. 18-24.Nagpur (ed. The Queer Case of Section 377 (http://www. Arvind Narrain. Mahendra P. Arvind Narrain and Marcus Eldridge. Alternative Law Forum. INDIAN CONSTITUTIONAL LAW. Ruth Vanita. 2011). 2. ARTICLES 1. 2 NUJS L. Bangalore.sarai. 2.pucl. 2009. ‗Section 377 and The Dignity of Indian Homosexuals‘.org/reports/Karnataka/2001/sexualminorities-pr. Bhargav K. Singh. 2003) 3. Rev. Routledge.Jain. 1860.net/publications/readers/05-bareacts/ 06_siddharth. ‗The Articulation of Rights around Sexuality and Health: Subaltern Queer Cultures in India in the Era of Hindutva‟. 3. 361 (2009) 5. Economic and Political Weekly. Siddharth Narrain. last visited on 30th of November. 14 WILLIAM AND MARY BILL OF RIGHTS L. 2006).htm. Rev.. pp. Sonia K.BIBLIOGRAPHY STATUTES 1. No. Vol.

2 NUJS L. Navigating The Noteworthy And Nebulous In Naz Foundation. Vikram Raghavan.9. 397 (2009) 17 | P a g e . Rev.

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