Naz Foundation v. Government of NCT of Delhi [Naz Foundation Case]
🏛️ Case Title:
Naz Foundation v. Government of NCT of Delhi
Citation: 2009 (160) DLT 277 (Del); WP(C) No. 7455/2001
Court: Delhi High Court
Date of Judgment: 2 July 2009
🔍 Background:
The Naz Foundation Case was a historic decision by the Delhi High Court that challenged the constitutional validity of Section 377 of the Indian Penal Code (IPC), 1860 — a colonial-era law that criminalized "carnal intercourse against the order of nature".
The case was filed by the Naz Foundation, an NGO working in the field of public health and HIV/AIDS, arguing that criminalizing consensual homosexual acts among adults was unconstitutional.
⚖️ Section 377 IPC (prior to 2018):
"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished..."
This law had been historically used to target the LGBTQ+ community in India, leading to stigma, harassment, and discrimination.
🎯 Issues Raised:
Is Section 377 unconstitutional to the extent it criminalizes consensual sexual acts between adults in private?
Does Section 377 violate fundamental rights guaranteed under the Constitution, particularly:
Article 14 – Right to Equality
Article 15 – Prohibition of Discrimination
Article 21 – Right to Life and Personal Liberty
Article 19 – Freedom of Expression (indirectly)
Does Section 377 have a chilling effect on public health interventions, especially HIV/AIDS prevention efforts?
📜 Petitioner’s Arguments (Naz Foundation):
Section 377 violates the right to privacy, dignity, and personal liberty.
It discriminates against the LGBTQ+ community, violating Articles 14 and 15.
Criminalizing consensual same-sex relationships between adults discourages LGBTQ+ persons from seeking health care or reporting abuse.
The law is used to harass, not to actually prevent crimes.
🧑⚖️ Court’s Reasoning:
1. Violation of Article 21 – Right to Life and Personal Liberty:
The right to dignity and privacy is an essential part of Article 21.
Private consensual sexual acts between adults fall within the domain of personal liberty.
Criminalizing such acts invades individual autonomy and the most intimate decisions of a person’s life.
2. Violation of Article 14 – Equality Before Law:
Section 377 fails the test of reasonable classification.
It creates an arbitrary distinction by criminalizing only certain sexual acts, irrespective of consent and privacy.
The law targets homosexuals, leading to unjust and unequal treatment.
3. Violation of Article 15 – Discrimination:
Though Article 15 doesn’t explicitly mention "sexual orientation", the court interpreted 'sex' to include sexual orientation.
Thus, discrimination on the basis of sexual orientation is unconstitutional.
4. Public Health Concerns:
Criminalization deters safe sex practices and HIV/AIDS prevention efforts.
Marginalization of LGBTQ+ groups makes them vulnerable and harder to reach through public health programs.
🧾 Judgment Summary:
The Delhi High Court read down Section 377, holding that:
"Section 377 IPC, in so far as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14, and 15 of the Constitution."
Non-consensual acts, sex with minors, or acts involving animals remained punishable under Section 377.
🏛️ Significance:
First judicial recognition in India that LGBTQ+ individuals have the same constitutional rights as others.
Sparked a nationwide conversation about sexual orientation, privacy, and equality.
Recognized sexual orientation as an intrinsic part of identity.
Laid the groundwork for further constitutional developments, especially the Puttaswamy case (2017) and Navtej Singh Johar case (2018).
🔄 Subsequent Developments:
1. Suresh Kumar Koushal v. Naz Foundation (2013)
Supreme Court overturned the Delhi High Court’s judgment, reinstating Section 377 in its original form.
Held that LGBTQ+ persons constituted a “minuscule minority” and therefore their rights could not override the law.
This decision received massive criticism for being regressive and was widely seen as a setback for human rights.
2. Navtej Singh Johar v. Union of India (2018)
A 5-judge Constitution Bench of the Supreme Court finally struck down Section 377 insofar as it criminalized consensual sexual acts between adults in private.
The Court declared:
“History owes an apology to the LGBTQ+ community for the decades of injustice.”
The Naz Foundation case laid the foundation for this final decriminalization.
🧠 Related Case Law:
K.S. Puttaswamy v. Union of India (2017) – Recognized right to privacy as a fundamental right, including sexual orientation.
National Legal Services Authority (NALSA) v. Union of India (2014) – Recognized transgender persons as a third gender.
Navtej Singh Johar v. Union of India (2018) – Decriminalized homosexuality fully.
Suresh Kumar Koushal v. Naz Foundation (2013) – Temporarily reinstated Section 377 before being overruled.
📌 Summary Table:
| Aspect | Details |
|---|---|
| Case Name | Naz Foundation v. Government of NCT of Delhi |
| Citation | 2009 (160) DLT 277 (Del) |
| Court | Delhi High Court |
| Date | 2 July 2009 |
| Issue | Constitutionality of Section 377 IPC |
| Held | Section 377 unconstitutional as applied to consensual adult acts |
| Violated Rights | Articles 14, 15, and 21 |
| Significance | First decriminalization of homosexuality in India (later upheld) |
| Later Development | Overruled in 2013; Upheld by Supreme Court in 2018 |
🏳️🌈 Conclusion:
Naz Foundation v. NCT of Delhi was a watershed moment in Indian legal history. It brought issues of LGBTQ+ rights, privacy, and dignity into mainstream legal discourse and laid the intellectual and moral foundation for the ultimate decriminalization of homosexuality in India.
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