Naz Foundation v. Government of NCT of Delhi [Naz Foundation Case]

The case of Naz Foundation v. Government of NCT of Delhi (2009) represents a watershed moment in India’s constitutional jurisprudence on LGBTQ rights. For the first time, a court held that criminalising consensual homosexual acts between adults violated fundamental rights guaranteed by the Constitution of India. 

This judgement marked the beginning of a long legal journey—ultimately culminating in the definitive decriminalisation of same‑sex relations in Navtej Singh Johar v. Union of India (2018). In this article, we explore the background, key arguments, constitutional analysis, and lasting impact of the 2009 Delhi High Court decision.

Historical Context: Section 377 IPC

• Origins: Enacted in 1861 under British colonial rule, Section 377 of the Indian Penal Code penalises “carnal intercourse against the order of nature.”
• Scope: Interpreted broadly to criminalise any non‑vaginal sex, including consensual homosexual acts and various non‑procreative heterosexual acts.
• Consequences: LGBTQ persons faced legal sanction, social stigma, and barriers to health outreach, especially HIV‑AIDS prevention.

Despite India’s adoption of a liberal, rights‑based Constitution in 1950, Section 377 remained on the statute book, denying full citizenship and dignity to queer communities for over six decades.

Genesis of the Litigation

Petitioner: Naz Foundation (India) Trust, an NGO working on HIV‑AIDS prevention.
Primary Claim: Section 377 IPC violated Article 14 (equality), Article 15 (non‑discrimination), Article 19 (freedom of expression), and Article 21 (right to life and personal liberty) of the Constitution.

1. 2001 Filing: Naz Foundation filed a Public Interest Litigation in the Delhi High Court, seeking to “read down” Section 377 so that it did not apply to consensual adult intercourse in private.
2. Locus Standi Challenge (2003): The Delhi High Court initially dismissed the petition on grounds that the Foundation lacked standing to challenge the law.
3. Supreme Court Intervention (2004): In Naz Foundation v. Government of NCT of Delhi, the Supreme Court held that the Foundation had the right to bring the PIL, remanding the matter to Delhi HC for adjudication on merits.

Procedural Interventions and Support

After remand, the case gained significant support and attention:

• National AIDS Control Organisation (2006): Filed an affidavit affirming that enforcement of Section 377 impeded HIV‑AIDS prevention efforts among men who have sex with men (MSM).
• Voices Against 377: A coalition of LGBTQ, women’s and human‑rights groups intervened to urge the court to read down the provision.
• Amicus Curiae Role: Independent experts assisted the court in understanding constitutional principles and public health implications.

These interventions enriched the factual matrix and legal analysis before the Delhi High Court.

Delhi High Court’s Landmark Judgement in Naz Foundation v. Government of NCT of Delhi (2 July 2009)

A two‑judge bench of Chief Justice A.P. Shah and Justice S. Muralidhar in Naz Foundation v. Government of NCT of Delhi delivered a nuanced, multi‑faceted judgement:

Right to Life and Personal Liberty (Article 21)

• Privacy & Dignity: The court held that the right to life under Article 21 encompasses the right to privacy, dignity and bodily autonomy.
• Consensual Acts in Private: Criminalising consensual adult sex in private invaded privacy and violated personal liberty.

Equality Before the Law (Article 14)

• Unreasonable Classification: Section 377 created an arbitrary class targeting homosexuals, failing the test of reasonable classification under Article 14.
• Public Animus: Moral disapproval or social disgust cannot justify discriminatory laws.

Non‑Discrimination on Grounds of Sex (Article 15)

• “Sex” Includes Sexual Orientation: The court interpreted the word “sex” in Article 15 to cover sexual orientation, thereby prohibiting discrimination against LGBTQ persons.
• Affirmation of Equal Citizenship: Sexual orientation was recognised as an intrinsic attribute of personal identity deserving constitutional protection.

Right to Health (Article 21)

• Public Health Imperative: Criminalisation hampered HIV‑AIDS outreach to high‑risk groups.
• State Obligation: The State must create an environment conducive to effective health interventions.

Reading Down Section 377

Rather than striking down Section 377 entirely, the court “read down” the provision as follows:

• Struck Down: The part of Section 377 that criminalised consensual sexual acts between adults in private.
• Retained: Offences relating to non‑consensual sexual assault, bestiality and sex with minors.

This narrow reading struck a balance between protecting personal liberty and safeguarding against sexual violence.

Government of India’s Contrasting Positions

During the litigation, two key ministries took opposing stands:

Ministry of Home Affairs (MHA)

• Retentionist Stance: Argued that Section 377 should remain intact to:
  1. Prosecute sexual offences against children.
  2. Preserve public morality and social order.
• Key Submission: Consent alone does not legitimise an offence; criminal law must reflect societal norms.
  

Ministry of Health & Family Welfare (MoHFW) & NACO

• Decriminalisation Advocate: Emphasised that Section 377 hindered HIV‑AIDS prevention among MSM.
• Evidence: National Sentinel Surveillance (2005) reported HIV prevalence of 8% in MSM versus 1% in general population.
• Public Health Argument: Fear of prosecution deterred high‑risk groups from seeking testing, counselling and treatment.

These divergent viewpoints highlighted the tension between moral/legal norms and public health imperatives.

Conclusion

The Naz Foundation v. Government of NCT of Delhi (2009) judgement was more than a legal victory; it was an affirmation of the constitutional promise of liberty, equality and dignity for every individual. 

By carefully analysing Articles 14, 15 and 21, the Delhi High Court dismantled a colonial relic that had long criminalised consensual adult relations. Although temporarily reversed, its reasoning paved the way for the Supreme Court’s definitive decriminalisation of homosexuality in 2018. As India continues to strengthen its commitment to human rights, the legacy of Naz Foundation endures—reminding us that the Constitution’s core values must evolve with society and protect the most vulnerable among us.