In this case, the Supreme Court of India heard the appeals directed against the decision of the Division Bench of the Delhi High Court which allowed the writ petition filed by NAZ Foundation. 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, 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and transgender individuals and that discriminatory laws such as Section 377 of the Indian Penal Code should be repealed.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.
The Supreme Court allowed the appeal and the petition by NAZ Foundation was dismissed. The court held that it ‘is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need’ and that it was for Parliament to repeal the provision, noting that Parliament had not yet done so despite numerous amendments since its enactment.
The court dismissed NAZ Foundation’s argument that Section 377 has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community stating that ‘this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.’
It was the view of the Supreme Court that Section 377 does not ‘suffer from the vice of unconstitutionality’ and the declaration made by the Division Bench of the High court is legally unsustainable.
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