Naz Foundation v. Govt. of NCT of Delhi & Others
Bench: Division Bench — 2 Judges (A.P. Shah CJ & S. Muralidhar J)
Parties
Facts of the Case
Naz Foundation, an HIV/AIDS prevention NGO working with MSM (men who have sex with men) communities, filed a writ petition in 2001 before the Delhi High Court challenging Section 377 IPC. The NGO argued that criminalisation of consensual adult same-sex conduct drove gay men underground, prevented them from accessing HIV/AIDS prevention services, and violated their fundamental rights. The petition had initially been dismissed but was revived after the Supreme Court directed the Delhi HC to hear it. After nearly eight years, the Delhi HC delivered a landmark judgment reading down Section 377.
Legal Issues Before the Court
- 1Is Section 377 IPC unconstitutional to the extent it criminalises consensual adult same-sex conduct in private?
- 2Does criminalisation of same-sex conduct violate Articles 14, 15, 19, and 21 of the Constitution?
- 3Does Section 377 constitute direct discrimination on the ground of sex under Article 15?
- 4How should international human rights standards inform the interpretation of fundamental rights under the Constitution?
The Judgment
The Delhi High Court read down Section 377 IPC and held that, to the extent it criminalises consensual sexual acts between adults in private, it violates Articles 14, 15, 19, and 21 of the Constitution. The Court held: (1) sexual orientation is a ground analogous to sex under Article 15 — criminalisation based on sexual orientation is prohibited discrimination; (2) the right to dignity and autonomy under Article 21 includes the right to make intimate choices about one's sexual life; (3) constitutional morality — not popular morality — is what courts must enforce. Section 377 continues to apply to non-consensual acts and acts with minors.
Key Principles Laid Down
CONSTITUTIONAL MORALITY OVER POPULAR MORALITY: The Delhi HC's most enduring contribution — the principle that constitutional courts enforce constitutional morality, not popular morality or majoritarianism. A law cannot be upheld merely because the majority finds certain conduct morally offensive. This principle was adopted and expanded by the Navtej Johar Constitution Bench (2018).
SEXUAL ORIENTATION IS AN ANALOGOUS GROUND UNDER ARTICLE 15: Discrimination based on sexual orientation is equivalent to discrimination on the ground of sex under Article 15. Since sexual orientation is a characteristic as fundamental as gender, and is not a matter of choice, criminalising conduct solely because of sexual orientation violates Article 15.
RIGHT TO DIGNITY INCLUDES SEXUAL AUTONOMY: The right to life and dignity under Article 21 encompasses the right to make choices about one's intimate life and sexual identity. Criminalising consensual sexual conduct between adults in private violates this core dimension of human dignity.
SECTION 377 READ DOWN, NOT STRUCK DOWN: Like Navtej Johar later, Naz Foundation read down (not struck down) Section 377 — the provision continues to apply to non-consensual acts and acts with minors. Only its application to consensual adult same-sex conduct in private is unconstitutional.
REVERSED BY KOUSHAL (2013) — THEN RESTORED BY NAVTEJ JOHAR (2018): The Naz Foundation judgment was reversed by Koushal (2013) for five years but was effectively restored and expanded by Navtej Johar (2018). The Delhi HC's constitutional reasoning was ultimately vindicated.
INTERNATIONAL HUMAN RIGHTS LAW AS INTERPRETIVE AID: The Delhi HC relied extensively on decisions from South Africa, Canada, the United States, and European human rights standards to interpret Articles 14, 15, 19, and 21 — continuing the Vishaka approach of using international norms as aids to constitutional interpretation.
Impact on Indian Law
Naz Foundation (2009) is the seed from which modern Indian LGBT rights jurisprudence grew. Although reversed for five years by Koushal (2013), its constitutional reasoning — constitutional morality, sexual orientation as an Article 15 ground, dignity includes sexual autonomy — was vindicated by Navtej Johar (2018). The case is essential for understanding the intellectual history of Section 377 jurisprudence. The 'constitutional morality' principle first articulated here has since become one of the most-cited constitutional concepts in Indian law.
Frequently Asked Questions
What did the Naz Foundation judgment decide about Section 377?
The Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi (2009) read down Section 377 IPC — holding that to the extent it criminalises consensual sexual acts between adults in private, it violates Articles 14, 15, 19, and 21 of the Constitution. It introduced the principle that constitutional morality must prevail over popular morality. The judgment was reversed by the Supreme Court in Koushal (2013) but effectively restored and expanded by the Constitution Bench in Navtej Johar (2018).
What is the difference between Naz Foundation (2009) and Navtej Johar (2018)?
Both judgments read down Section 377 for consensual adult same-sex acts. The key differences: (1) Naz Foundation was a Delhi High Court decision; Navtej Johar was a Supreme Court Constitution Bench. (2) Naz Foundation's reasoning was adopted and expanded by Navtej Johar, which also added the right to privacy (from Puttaswamy 2017) as an additional ground. (3) Navtej Johar expressly overruled Koushal which had reversed Naz Foundation. (4) Navtej Johar is the binding precedent — Naz Foundation is now significant for its intellectual history and the 'constitutional morality' principle.