Gay and Transgender Rights in India: Naz Foundation V. Government of NCT of Delhi

Abstract:     
Section 377 of the Indian Penal Code, a figment of colonial creation, has criminalised ‘unnatural sexual acts’ since its application as law in 1862. Homosexuality falls within such acts and may attract punitive measures. In the previous century, legislatures and judiciaries across the globe have upheld laws criminalising homosexuality and transgender behaviour, justifying them on grounds of public decency and morality. With the advent of the contemporary epoch, the movement against the repressive and oppressive nature of Section 377 grew exponentially and reached its culmination in Naz Foundation v. Government of NCT of Delhi, wherein the Delhi High Court recognized the anachronism associated with Section 377 and interpreted it to exclude sexual acts between consenting adults, thus decriminalising homosexuality. Although the ramifications are limited and may be quelled by an act of Parliament, the judgment is a landmark in civil liberties’ litigation and may be regarded as one of the stepping stones to the emancipation of the sexual minorities in India from tyranny and coercion at the hands of the law. This paper is an attempt to extricate the significance and far-reaching effects of this judgment in the face of systemic abuse of homosexuals and transgenders, by enforcers of the law under the facade of upholding Section 377, prior to this judgment. This paper shall examine the constitutional aspects of the judgment i.e. the constitutional validity of the impugned statute against Article 14, 15(1) and 21. The author has attempted to include case law from other common law systems of the world to substantiate the sound nature of the judgment. The debates between Lord Devlin and H.L.A. Hart have also been used for the same.

Number of Pages in PDF File: 10

Keywords: Naz, gay rights, transgender rights, naz foundation, delhi high court

working papers series