Naz Foundation vs govt. of Delhi (2009) is a landmark case decided by Delhi High court held that treating consensual homosexual sex between adults as a crime under Section 377 of IPC is a violation of fundamental rights (A 14,15, 21). But when it went to appeal in KoushalvsNaz Foundation case, the Supreme Court stuck down the decision taken by HC in Naz Foundation case and held that Section 377 of IPC doesn’t suffer from any constitutional infirmity. Thus, once again criminalizing homosexuality.
• Sec 377 a pre-independence provision, penalizes penalizes unlawful sexual acts ‘against the order of nature’. It disregards, various fundamental rights, including the right to privacy and right to dignity under the fundamental right to life and liberty (Article 21), the right to equality (Article 14), and forbidden of separation on grounds of sex (Article 15).
The main concern for LGBT is torture/police abuse faced by them due to their homosexuality being considered as abnormality. And reversal of earlier judgment is against the founding father’s vision of inclusive and tolerant India where rights of all, both majority and minority are to be guaranteed.
The reasons cited by SC:
• Sec 377 is pre-constitutional and would have been taken into consideration while drafting constitution. So it isn’t unconstitutional.
• It is unnatural lust and needs to be punished.
• It has health consequences as HIV.
The cases of LGBTs taking rescue in Commonwealth countries shows the pathetic condition of their rights in India.
However, SC judgment National Legal Services authority case where LGBT are accepted as a part of third gender shows there is still scope for fighting for the rights of the minority gender. In a progressive modern state like India shifting morality needs to be considered and needs to be interpreted in line with constitutional values.
