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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 Honble 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 Honble 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

...

LEGISLATIVE HISTORY OF S.377

...

BACKGROUND OF THE NAZ FOUNDATION CASE

...

A BRIEF ANALYSIS OF THE JUDGMENT

...

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.

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 cant be entertained to explain the academic challenge to the
constitutionality of the legislation. The said order was set aside by the Honble
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 6 7

Naz Foundation v. Government of the NCT,


MANU/DE/0869/2009:2010CriLJ94:160(2009)DLT277 (2007) 4 MLJ 849

Peoples Union for Civil Liberties (PUCL) Report on Rampant violation of rights of
Sexual Minorities, p.14 (2000).
8 9

Ibid 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. 48154823

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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 citizens 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 12

Ruth Vanita, QUEERING INDIA 15 (2002).

Siddharth Narrain, Being a Eunuch in India (http://www.countercurrents.org/gen-


narrain141003.htm; last accessed on 13th August, 2009).
13

10 CARDOZO WOMENS 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 Foundations 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 arent 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. Honble 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 Honble 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
OConnors 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 OConnor, 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 20 21

See supra note 1 Supra note 5, at 94 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 muchcited 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
Royappas 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 statutes 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 23

See supra notes 6-10 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
26

Id: AIR 1974 SC 555: (1974) 4 SCC 3.


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 ones physical attributes, gender is a far more personal
identification of the self through ones 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 Honble 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 30

No.488/1992 CCPR/C/ 50/D/488/1992, March 31, 1994. 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. 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.
31

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 Honble 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 Courts rule could have also implications beyond
34

(2008) 6 SCC 1 To pass strict scrutiny, the law or policy must satisfy three tests:

35

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 38 39

[1999] 2 SCR 203 (Canada) Harksen v. Lane 1998 (1) SA 300 (CC) 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 Honble 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 Nations 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

14 | P a g e
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 individuals 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 42

Supra note 13

(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. Peoples 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/gennarrain141003.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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