In this petition, filed in 2001, the NAZ Foundation, a non-governmental organisation working in the field of HIV/AIDs prevention, particularly amongst men who have sex with men (MSM), argued that its work was severely impaired by discriminatory attitudes exhibited by State authorities towards sexual minorities, MSM, lesbians and transgender individuals and that discriminatory laws such as Section 377 (Unnatural Offences) of the Indian Penal Code should be repealed. The petitioners stated that Section 377, to the extent it is applicable to and penalises sexual acts in private between consenting adults, is violative of Articles 14 (equality before the law), 15 (non-discrimination), 19(1)(a)-(d) (freedoms of expression, assembly and association) and 21 (right to life) of the Constitution.
This was a landmark decision by the Delhi High Court, ending over a century of discriminatory legislation by declaring parts of Section 377 unconstitutional. The court declared ‘that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.’
Considering Article 14 of the Constitution, the court held that whilst on its face Section 377 is neutral, in its operation it unfairly targets a particular community; ‘the fact is these sexual acts which are criminalised are associated more closely with one class of persons, namely, the homosexuals as a class’ and is in violation of Article 14.
When considering the question of whether ‘sex’ under Article 15 of the Constitution should be interpreted as including sexual orientation, 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.’ Consequently Section 377 of the Indian Penal Code also violated Article 15.
The court concluded stating that, ‘it cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.’
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