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Naz Foundation v. Government of NCT of New

Delhi and Others, WP(C) No. 7455/2001

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Public interest litigation brought on behalf of civil society organizations working to
address the HIV/AIDS crisis in India; Challenge to Section 377 of Indian Penal Code, which
criminalizes consensual homosexual conduct; Discriminatory laws and policies impaired
HIV/AIDS prevention measures; Domestic Application of International Law; Equality / Non-
Discrimination. 

Date of the Ruling: 

Jul 2 2009

Forum: 
High Court of Delhi

Type of Forum: 
Domestic

Summary: 
The Naz Foundation India, a non-governmental organization committed to HIV/AIDS
intervention and prevention, filed a public interest litigation in the Delhi High Court
challenging the constitutionality of Section 377 of the India Penal Code, which makes it
illegal to engage in any "unnatural" sexual act, defined as sex other than heterosexual
intercourse. The Delhi High Court dismissed the original writ of petition in 2004 for lack of
a cause of action. However, on civil appeal the Supreme Court of India set aside the
dismissal and ordered the Delhi High Court to hear the petition on the merits. The
petitioner argued that Section 377 encouraged discriminatory attitudes, abuse, and
harassment of the gay community, and significantly impaired HIV/AIDS prevention e orts
and access to treatment. The National AIDS Control Organization (NACO) under the
Ministry of Health supported the petitioners in their response.  

The Court found in favour of the petitioner and held that Section 377 was unconstitutional.
First, the Court found it violated the right to dignity and privacy by citing the Universal
Declaration of Human Rights and European Court of Human Rights as well as the case of
Francis Coralie Mullin[1] in which the Indian Constitutional Court defined dignity as
requiring adequate shelter, nutrition, clothing as well as the ability to freely socialize. Next,
the Court held that under Article 12 of the ICESCR and Article 21 of the Indian Constitution,
the state must fulfil "everyone's right to access the highest attainable standard of health"
as part of the right to life. The Court agreed that criminalization of homosexual conduct
pushes homosexuals into isolation and impedes access to adequate information for
prevention of HIV/AIDS.

The Court also cited General Comment 14 to the ICESCR in defining the right to adequate
health as including the right to control one's health and body, including sexual
reproductive freedom, the right to be free from interference, and most importantly non-
discrimination and equal treatment with regards to accessing healthcare. Finally, the
Court cited numerous other international treaties and agreements to which India is a party
that specifically declare a commitment on the part of India to address the needs and rights
of groups with a high-risk of contracting HIV/AIDS.  A er engaging in an analysis of the
purpose of the law and the interests of state as weighed against the rights of the
petitioners, the Court found no legitimate state interest in upholding the statute and found
the classification of homosexuals to be in violation of the Constitution.  Further,
in light of the evolution of domestic and international law regarding privacy, dignity, and
the right to health as well as changing social attitudes and understandings of sexual
orientation, the Court found section 377 to be an unconstitutional infringement on
fundamental rights. 

Keywords: Naz Foundation v. Government of NCT of New Delhi and Others, WP(C) No.
7455/2001, HIV/AIDS

[1] Francis Coralie Mullin v. Administrator, Union of Dehli and Others, (1981) 2 SCR 516.
Enforcement of the Decision and Outcomes: 
On July 9, 2009, India's Supreme Court sent notice that the Court would consider an
appeal in response to a petition by two private citizens seeking to defend the law on moral
grounds, however, on July 20, 2009 the Court refused to suspend the decriminalization of
homosexual conduct under section 377 prior to appeals being heard.  Meanwhile, the Naz
Foundation India is currently working with police in New Delhi, conducting weekly training
workshops to build awareness of HIV / AIDS to e ectively tackle issues of discrimination,
physical harassment, corruption and human rights.

Groups involved in the case: 

Naz Foundation (India) Trust Lawyers Collective (http://www.lawyerscollective.org/)

Significance of the Case: 

Advocates in India have hailed this decision as a major victory for LGBT rights and the right
to adequate health, including information on HIV/AIDS and treatment in India. The
reasoning of the Court makes the critical linkages between non-discrimination and access
to adequate healthcare and how stigma and marginalization can impede access to
substantive ESC rights.  The Secretary of the Department of AIDS Control, K. Sujatha Rao,
has declared that the decision is expected to increase the e ectiveness of prevention
programs and Director of the Lawyers Collective and current UN Special Rapporteur on the
Right to Health, Anand Grover, has applauded the Court for "a irming that fundamental
rights of sexual minorities cannot be trumped by vague notions of culture and morality."

Thematic Focus: 
Enforcement/Implementation of ESCR (/thematic-focus/enforcementimplementation-
escr)
Equality and Non-discrimination (/thematic-focus/equality-and-non-discrimination)
Health (Right to) (/thematic-focus/health-right)
Information (Right to) (/thematic-focus/information-right)
Life (Right to) (/thematic-focus/life-right)

Country: 
India (/country/india)

Ruling: 
Court_decision.pdf (https://www.escr-net.org/sites/default/files/Court_decision.pdf)

Related Resources: 
ESCR-Justice: Monthly Caselaw Update (/resources/escr-justice-monthly-caselaw-
update)
Justice-DESC (/node/362436)
Lawyers Collective, s377 Case Updates, (/docs/i/1013891)
Gopalan, Anjali, Delhi High Court's Decision on Section 377, Anti-Sodomy Law ,
(/docs/i/1013892)
Grover, Anand, UN Special Rapporteur on Health, Overturning India's Anti-Sodomy
Law: A Tumultuous Path to Victory , (/docs/i/1013895)
Burris, Scott C., Cameron, Edwin and Clayton, Michaela, The Criminalization of HIV:
Time for an Unambiguous Rejection of the Use of Criminal Law to Regulate the Sexual
Behavior of Those with and at Risk of HIV, (/docs/i/1013898)
Human Rights Watch, Epidemic of Abuse: Police Harassment of HIV/AIDS Outreach
Workers in India (/docs/i/1013899)

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