Project Assignment on:

NAZ FOUNDATION: A NEW DAWN IN THE HORIZON OF EQUALITY

Submitted as per course requirement of the Indian Constitutional Law: The New Challenges

Submitted to: Dr. JUSTICE S. RAJENDRA BABU, Course Teacher

Submitted by: MANORANJAN Roll No.479 1st year LLM (Business Law)

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE

ACKNOWLEDGEMENT

Though I have taken efforts in this project, it would not have been possible without the kind support and help of many individuals. I would like to extend my sincere thanks to all of them. I am highly indebted to Honble Dr. JUSTICE S. RAJENDRA BABU for his guidance and constant supervision as well as for teaching the concept and methods of Research and in providing necessary information and support in completing this project. My thanks and appreciations also go to my batch mates and seniors in developing this project. MANORANJAN ID No. 479 LL.M (1st Year)

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RESEARCH METHODOLOGY Aim and Objective: The aim of this paper is to analyze the role of decision in Naz Foundation v. Government of the NCT, in reforming the law relating to the rights of sexual minorities. Scope and Limitation: This paper analyzes the interpretation given by the Honble High Court of Delhi, to Articles 14 and 15 of the Indian Constitution, expanding the scope of those provisions. Though the decision had elaborated the right to privacy and the dignity under Article 21, the paper has not discussed the same, limiting itself within the perimeter of principle of equality. Research Hypothesis The researcher proceeds with the primary and main hypothesis that decision has expanded the horizon of equality, accommodating the sexual minorities and has further expanded the scope of Article 15 by giving it a horizontal application. Research Methodology: In this paper the researcher has primarily used descriptive and analytical methodology of research. Sources: The researcher has relied upon the primary sources of Statutes and Caselaws and also on secondary resources of books and academic journal articles. Mode of Citation: A uniform method of citation is followed throughout this paper

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CONTENTS

INTRODUCTION

...

LEGISLATIVE HISTORY OF S.377

...

BACKGROUND OF THE NAZ FOUNDATION CASE

...

A BRIEF ANALYSIS OF THE JUDGMENT

...

SECTION 377 AND THE RIGHT TO EQUALITY

...

10

SECTION 377 AND THE RIGHT AGAINST DISCRIMINATION

...

11

CONCLUSION

...

14

BIBLIOGRAPHY

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INTRODUCTION Indian society has always been conservative about the sexual affairs and has been sceptical about the sexual relationships other than within the institution of marriage. Homosexuality has been in particular, detested and homosexuals were ostracised in the general society. Owing to the collective nature of the Indian society it has excluded the promotion of homosexual values and has by and large disapproved homosexuality and has treated it as a criminal offence. But it is a stark reality that homosexuality has always prevailed in India silently in various forms (like the Hijras). Homosexual behaviour has been widely perceived in India as a psychological abnormality or a perversion. The Indian law follows an attitude in tune with the general attitude of the public and under the S.377of the Indian Penal Code, homosexual acts have been criminalised. In the Western societies, homosexual behaviour has been tolerated and from early seventies it has been ceased to be considered as an abnormal behaviour. Many of the Western countries have given the homosexuals the same status as heterosexuals and have even allowed gay marriages. It is in this backdrop, that the call for equal rights and decriminalisation of the homosexual behaviour gained strength in India. LEGISLATIVE HISTORY OF S.377 At the core of the controversy involved here is the penal provision Section 377 IPC which criminalizes sex other than heterosexual penile-vaginal. The legislative history of the subject indicates that the first records of sodomy as a crime at Common Law in England were chronicled in the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed that sodomites should be burnt alive. Acts of sodomy later became penalized by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British Colonies. Oral- genital sexual acts were later removed from the definition of buggery in 1817. And in 1861, the death penalty for buggery was formally abolished in England and Wales. However, sodomy or buggery remained as a crime "not to be mentioned by Christians." Indian Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India. Section 377 IPC is contained in Chapter XVI of the IPC titled "Of Offences Affecting the Human Body". Within this Chapter Section 377 IPC is categorised under the sub-chapter titled "Of Unnatural Offences" and reads as follows: 377. Unnatural Offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with
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imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. Macaulay had refrained from appending any guidance notes or illustrations to Section 377 disregarding the practice he followed for other provisions of the Penal Code. Macaulay was apparently motivated by his puritanical belief that Section 377 involved an odious class of offences [about which] as little as possible should be said.1 The English law was reformed in Britain by the Sexual Offences Act, 1967, which decriminalised homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the report of Wolfenden Committee. The Committee advising the Parliament had recommended in 1957 repeal of laws punishing homosexual conduct. The Indian law is still following the Victorian attitude. BACKGROUND OF THE NAZ FOUNDATION CASE In 2001, the Naz foundation, an NGO working on HIV/AIDS and sexual education and health filed a writ petition in Delhi High Court, challenging the constitutional validity of S.377 of IPC on the ground that it is prohibiting consensual sexual acts between the adults in private and is hence violative of Articles 14, 15, 19 and 21 of the Constitution. According to Petitioner NGO and those who supported the petition Homosexual and such other people represents population segment that is extremely venerable to HIV/AIDS infections. According to them the HIV/AIDS preventive efforts were severally impaired by the discriminatory attitudes of the State Agency towards homo sexuality as the same is covered under section 377 of IPC, as a result of which basic fundamental Human right of such groups (in minority) stood denied and they were subject to abuse, harassment, and assault from public and public authorities. The Petitioner also contended that the said section to the extent of their application violates the section 14, 15, 19 (1) (a) (b) (c) and (d) and Article 21 of the Constitution of India and thus consensual sexual intercourse between two willing adult in private is required to be saved and excepted from the panel provision contained in section 377 of IPC.

See Sonia K. Katyal, Sexuality and Sovereignty: the Global Limits and Possibilities of Lawrence, 14 WILLIAM AND MARY BILL OF RIGHTS L.J. 1429, 1452 (2006).

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As for the Union of India was concerned in this particular case2, it argued that the said section has been generally invoked in cases of child sexually abuse and for complementary lacunae in rape laws and not mere home sexuality. It also placed reliance upon the 42nd report of law commission of India wherein it the Commission had justified that Indian society still considers homo-sexuality as a criminal offence.3 The case saw Ministry of Home Affairs and Ministry of Health & Family Welfare taking a contradictory stands on this matter. The Ministry of Home Affairs (MHA) sought to justify the retention of Section 377 IPC, whereas the Ministry of Health & Family Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts. The Ministry of Home Affairs, in the affidavit, had sought to justify the retention of Section 377 IPC on the statute book broadly on the reason that it has been generally invoked in cases of allegation of child sexual abuse and for complementing lacunae in the rape laws and not mere homosexuality. National Aids Control Organisation (NACO) in its affidavit submitted on behalf of Ministry of Health and Family Welfare has submitted confirms the case set out by the petitioner that homosexual community (MSM etc.) is particularly susceptible to attracting HIV/AIDS in which view a number of initiatives have been taken by NACO to ensure that proper HIV intervention and prevention efforts are made available to the said section of the society by, amongst other things, protecting and promoting their rights. In the reply affidavit, NACO states that the groups identified to be at greater risk of acquiring and transmitting HIV infection due to a high level of risky behaviour and insufficient capacity or power for decision making to protect themselves from infection, generally described as 'High Risk Groups' (HRG), broadly include men who have sex with men (MSM) and female sex workers and injecting drug users. A bench of Delhi High Court comprising Chief Justice B.C. Patel and Justice Badar Durrez Ahmed had dismissed the application in 2004 on the ground that the petitioner had no cause of action and that such a petition cant be entertained to explain the academic challenge to the constitutionality of the legislation. The said order was set aside by the Honble Supreme Court pointing out that the matter does require judicial consideration and is not of a nature
2

In this particular case the Ministry of Home affairs and Ministry of Health and family welfare had taken contradictory stands as is clear from the affidavit filed by two wings of Union of India. The Ministry of Home affairs sought to justify the retention of section 377 of IPC, whereas ministry of Health and Family insistent that continuance of section 377 of IPC has hampered the HIV/AIDS prevention efforts.
3

In the 172nd report, the Law Commission has recommended deletion of Section 377 IPC, though in the 42 nd report it had recommended the retention of the provision. In the 172nd report, the Law Commission of India, focused on the need to review the sexual offences laws in the light of increased incidents of custodial rape and crime of sexual abuse against youngsters, and inter alia, recommended deleting the section 377 IPC by effecting the recommended amendments in Sections 375 to 376E of IPC.

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which could be dismissed as a mere academic issue.4 The main issues raised in the Naz Foundation case5 were, whether (i) public morality is aground for restriction of fundamental rights; (ii) Section 377 of IPC violates constitutional guarantee of equality, privacy and dignity; (iii) decriminalisation of consensual homosexuality would corrupt public morals and increase delinquent behaviour; (iv) State has a compelling interest of public health to interfere upon a fundamental right; (v) criminalisation of homosexuality is an impediment to public health and prevention of HIV/AIDS. Section 377 has been extensively used by the law enforcers to harass and exploit homosexuals and transgender persons. Various such incidents have come to light in the recent past. In Jayalakshmi v. State of Tamil Nadu6, Pandian, a transgender, was arrested by the police on charges of theft. He was sexually abused in the police station which ultimately led him to immolate himself in the premises of the police station. Similarly, policemen arrested Narayana, a transgender, in Bangalore on suspicion of theft, and was kept in custody, without informing him of the grounds of arrest or extending any opportunity to him to defend himself. His diary was confiscated by the police and he was threatened with dire consequences if he did not assist in identifying other transgenders he was acquainted with. 7 Homosexuals have also been at the aggrieved end of financial extortion by the police in exchange for not revealing their identities to society.8 A peculiar use of Section 377 was seen in Lucknow when workers of Bharosa, a NGO aimed at spreading awareness about AIDS, were arrested for distribution of pamphlets providing tips on safe sex to homosexuals.9 The same agencies of the law have been apathetic towards these sexual minorities in the realm of their health and safety. When a medical team inspected Tihar Jail, reported a high incidence of sodomy in the prison and recommended provision of condoms to inmates to prevent a proliferation of diseases, the Inspector-General of Prisons chose to deny any such providence, thinking it to
4

See Mahendra P. Singh, Decriminalisation of Homosexuality and the Constitution, 2 NUJS L. Rev. 361 (2009), 362
5 6 7

Naz Foundation v. Government of the NCT, MANU/DE/0869/2009:2010CriLJ94:160(2009)DLT277 (2007) 4 MLJ 849

Peoples Union for Civil Liberties (PUCL) Report on Rampant violation of rights of Sexual Minorities, p.14 (2000).
8 9

Ibid Arvind Narrain, The Articulation of Rights around Sexuality and Health: Subaltern Queer Cultures in India in

the Era of Hindutva, in Health and Human Rights 153 (2004).; See also Alok Gupta, Section 377 and The Dignity of Indian Homosexuals, Economic and Political Weekly, Vol. 41, No. 46 (Nov. 18-24, 2006), pp. 48154823

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be a latent confession of rampant homosexual behaviour in the prison.10 As a consequence of the inactivity of the prison staff, the AIDS Bhedbhav Virodhi Andolan filed a petition in the Delhi High Court challenging the official position and the constitutionality of Section 377.11 Similarly, the Indian Council for Medical Research (ICMR) and Indian Medical Association (IMA) have not prescribed any guidelines for Sex Reassignment Surgery (SRS). This reticence on the part of the medical sphere has led many transgenders to approach quacks, putting themselves at grave risk.12 From the numerous instances of abuse and violence against homosexuals and transgenders, it is evident that Section 377 has been grossly misused. It is equally obvious that a judicial move to address this concern was exigent in the face of a law enforcement framework so hostile that exploitation at the hands of the alleged protectors became a quotidian affair for sexual minorities in India. A BRIEF ANALYSIS OF THE JUDGMENT The Delhi high court judgment is full of learning and references to literature on psychiatry, genetics, religion and judgments delivered in other jurisdictions, particularly the US and Canada. It refers to the report of the British Wolfenden Committee and the Sexual Offences Act, 1967, by which English law decriminalised homosexuality. It fortifies its conclusions by the 172nd report of the Law Commission which also took the same view: Section 377 in its present form has to go. The Delhi high court judgment is substantially based upon the citizens right to privacy and a life of dignity. The court correctly concluded that these rights can only be subordinated to some overriding public interest. The submission was in the teeth of the view of the American Psychiatric Association presented to the United States Supreme Court in 2002 in the case of Lawrence v. Texas13: According to current scientific and professional understanding, however, the core feelings and attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence. Moreover, these patterns of sexual attraction generally arise without any prior sexual experience. Thus, homosexuality is not a disease or
10

Siddharth Narrain, The Queer Case of Section 377 (http://www.sarai.net/publications/readers/05-bareacts/ 06_siddharth.pdf; last accessed on 13th August, 2009).
11 12

Ruth Vanita, QUEERING INDIA 15 (2002).

Siddharth Narrain, Being a Eunuch in India (http://www.countercurrents.org/gen-narrain141003.htm; last accessed on 13th August, 2009).
13

10 CARDOZO WOMENS L.J. 365, 380-381 (2004)

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mental illness that needs to be, or can be, cured or altered, it is just another expression of human sexuality. The judgment has cited from a large number of international and comparative constitutional sources and has actually relied on those foreign precedents to shape an imaginative outcome relevant to the local context. Naz Foundations foreign references include materials from the usual suspects, the United States and the United Kingdom, as well as decisions from unlikely places, such as Hong Kong, Fiji, and Nepal. Those latter decisions are particularly important because they remind the cynic that gay rights arent some luxurious Western construct. Moreover, the reference dates of various online sources cited in Naz Foundation reveal that the judges continued to research the issues long after the case had been reserved for judgment. The learned Judges have also relied on several international soft-law sources, such as the Yogyakarta Principles, and the London Declaration of Principles on Equality to argue that there is an emerging norm of international law on sexual orientation.14 The Delhi Judgment does not recommend homosexuality or even approve of it. But it is obnoxious arrogance to claim that my conduct is natural while others violate nature. The Constitution of India does not tolerate such tyranny. Honble High Court held that if a court finds that a claimed right is entitled to protection as a fundamental privacy right, the law infringing it must satisfy the compelling state interest test. While it could be a compelling state interest to regulate by law, the area for the protection of children and others incapable of giving a valid consent or the area of non-consensual sex, enforcement of public morality does not amount to a compelling state interest to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others. Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of morality that can pass the test of compelling state interest, it must be constitutional morality and not public morality. This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent Assembly15

14

See Vikram Raghavan, NAVIGATING THE NOTEWORTHY AND NEBULOUS IN NAZ FOUNDATION, [2009] NUJSLawRw 22; (2009) 2(3) NUJS Law Review 397
15

URL: http://www.indiaproposes.com/atriclepage.php?arcId=2, accessed on 22- 09- 2009)

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SECTION 377 AND THE RIGHT TO EQUALITY Article 1416 of the Indian Constitution comprises of a dual approach which guarantees equality before law and equal protection of laws. The right of equality lacks an absolutist nature in as much as it permits for classification between individuals,17 which consequently relaxes the equal protection of laws to all. In the instant case, the point for scrutiny before the Court was whether a classification between heterosexuals and homosexuals was permissible. The Honble High Court in this case had followed the two fold test of intelligible differentia and direct nexus.18 In the instant case, the Delhi High Court had ruled that Section 377 reflected class legislation, in disfavour of the LGBT community, and therefore failed the test of Article 14. The text of, Section 377 proscribes sexual acts involving carnal intercourse that are considered unnatural irrespective of whether they involve same-sex or opposite sex partners.19 When we scan through the case laws under the section we can see that it has been used in prosecutions involving oral sex and anal sex. There is ample evidence to suggest that neither anal sex nor oral sex falls within exclusive homosexual domain nor many heterosexual couples routinely engage in it. Even though the Naz Foundation has conceded this facial neutrality of Section 377,20 the bench points out, the sexual acts, which are criminalized are associated more closely with one class of persons, namely the homosexuals as a class. In support of its reasoning that Section 377 is hostile to gays, the bench has cited Justice OConnors Lawrence opinion criticizing the underlying statute in that case for singling out homosexuals as a class. But the bench has conveniently forgotten to mention the fact that the Lawrence statute only proscribed homosexual conduct; it was even called the Texas Homosexual Conduct Statute, which had rendered it an easy target for Justice OConnor, who wrote a narrowly tailored concurring opinion without joining the majority view.21
16

14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 17 State of Bombay v. F.N. Balsara AIR 1951 SC 318
18

A classification shall be deemed reasonable if it stands a two-fold test: it should base itself on a reasonable differentia and should have a direct nexus with the object sought to be achieved through such classification., State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75: [1952] SCR 284
19 20 21

See supra note 1 Supra note 5, at 94 See supra note 14

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Though the language of the impugned section is facially neutral, there is clear and convincing evidence that the provision had been used to harass and intimidate those with same-sex attraction22. The absence of any textual guidance, unlike the other sections of the Penal Code, regarding the scope of the provision, fuels and abets the misuse of the section. The ambiguous nature of the phrase against the order of nature, which forms the fulcrum of the provision and the inconsistent interpretations given to it, vests law-enforcement agencies with unbridled discretion, which has been seriously abused, brings it under the shadow of arbitrariness23. Taking these facts together, a persuasive argument could have been made that Section 377 is both arbitrary and unreasonable and consequently unable to pass constitutional muster under the so-called new doctrine of equality24 that the Court announced in its muchcited decision, E.P. Royappa v. Tamil Nadu.25 The doctrine had been adopted previously by the Supreme Court in Mithu v. State of Punjab26 to strike down Section 303 of the Penal Code because it was arbitrary beyond the bounds of all reason. Interestingly, though Naz Foundation refers to Royappas decision, in its general survey of Indian equality principles, the Court had curiously refrained from invoking the equality doctrine when applying those principles to Section 377, and had relied instead on the statutes unreasonable classification. SECTION 377 AND THE RIGHT AGAINST DISCRIMINATION Article 1527 guarantees the right against discrimination on various grounds, including sex. The question for deliberation in Court was whether sex under the text of Art. 15 was
22 23

See supra notes 6-10 See supra note 14

24

...equality is antithetic to arbitrariness. Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. E.P. Royappa v. Tamil Nadu, MANU/SC/0380/1973, at 85
25
26

Id: AIR 1974 SC 555: (1974) 4 SCC 3.

1983 AIR 473, 1983 SCR (2) 690

27

15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. 1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]

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inclusive of sexual orientation28. The sexual minorities have always realised the existence of a gap between sex and gender. While sex is the identification of oneself through ones physical attributes, gender is a far more personal identification of the self through ones mental looking glass. Transgenders have faced the wrath of the authorities the most, owing to the lack of appreciation of the sex-gender dichotomy by the authorities. Answering to the question affirmatively, the Court held that, sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Thus forcing someone to behave in accordance with predefined notions of what it means to be a man or a woman can be considered discrimination analogous to discrimination on grounds of sex. The court had arrived at this decision, keeping in mind the International Covenant on Civil and Political Rights and its interpretation in the case of Toonen v. Australia.29In this case, it was observed that, the reference to 'sex' in Article 2, paragraphs 130 and 2631 (of the ICCPR) is to be taken as including 'sexual orientation'.32 Giving a harmonious interpretation to the views expressed by the Honble Supreme Court in the cases of Anuj Garg v. Union of India33 and Ashoka Kumar Thakur v. Union of India,34
2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.] 28 The Yogyakarta Principles define the expression "sexual orientation" and "gender identity" as follows: "Sexual Orientation" is understood to refer to each person's capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender;" See supra note 5 at 44
29 30

No.488/1992 CCPR/C/ 50/D/488/1992, March 31, 1994. Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 : All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
31

32

To arrive at the notion of analogous ground of discrimination, the Court draws from decisions of the Canadian and South African Supreme Courts which have understood analogous grounds of discrimination in these terms: what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity, See supra note 3 at 94
33

(2008) 3 SCC 1

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regarding the application of the doctrine of strict scrutiny35, the Court declared that, though an action aimed to protect vulnerable groups in society may be exempted from strict judicial scrutiny, a legislation that targeted vulnerable sections was to be strictly scrutinized at the altar of Article 15.36 In Corbiere v. Canada37, the Supreme Court of Canada recognized the virulence that was implicit in discrimination towards the sexual minorities at the hands of the law. Such discrimination was never based on any form of intelligible differentia, but on the personal sexual preferences of people. As a result, the discrimination meted out to the sexual minorities constituted a grave deprivation of the right to dignity of the individual. 38 To read sex as inclusive of sexual orientation is a transcendental step in terms of the judicial approach towards sexual minorities. The Court had concluded that Article 15(2) incorporates the notion of horizontal application of the rights.39 It may be safely presumed that the Honble Justices had adopted this stance, keeping in mind, the harassment and abuse that homosexuals face at the hands of non-state actors like goondas. Owing to the horizontal nature of the right to non-discrimination, the failure of the police to protect homosexuals when they are discriminated against by fellow citizens shall amount to a violation. Without such horizontal protections, the police could simply outsource discrimination to private citizens by turning a blind eye to crimes perpetrated against LGBT people. The Courts rule could have also implications beyond
34

(2008) 6 SCC 1 To pass strict scrutiny, the law or policy must satisfy three tests:

35

It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored. The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately. 36 The High Court held that, On a harmonious construction of the two judgments, the Supreme Court must be interpreted to have laid down that the principle of 'strict scrutiny' would not apply to affirmative action under Article 15(5) but a measure that disadvantages a vulnerable group defined on the basis of a characteristic that relates to personal autonomy must be subject to strict scrutiny. Supra note 3 at 111.
37 38 39

[1999] 2 SCR 203 (Canada) Harksen v. Lane 1998 (1) SA 300 (CC) Supra note 4 at 104; horizontal application of the right implies the rights of the citizens against each other.

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severe cases of harassment and abuse, in cases of more day to day discrimination. Article 15 lists specific public places where sex discrimination is illegal, including shops, restaurants, hotels, and places of public entertainment. Thus, if an LGBT person were turned away from a shop because of his sexual orientation or gender identity, then his right to non-discrimination would have been violated. Thus, the ruling of the High Court lays down the path of emancipation of the transgenders through its recognition of the dichotomy surrounding their lives. Further, recognition of this dichotomy reveals a shirking of anachronisms associated with judicial thought which by itself begets a hitherto unknown approach of empathy and care towards the sexual minorities. Further, the construction of Art.15 by the Honble court giving it a horizontal application is having implications outside the boundaries of impugned case. It shall thus enable every such individual who is being discriminated only on the grounds of religion, race, caste, sex, place of birth or any of them, by another individual or individuals, to seek remedy under Art. 15. Thus, every Muslim or Dalit citizen who is denied housing by a landlord on the ground of his or her religion has a constitutionally enforceable claim against the landlord. CONCLUSION The notion of equality in the Indian Constitution flows from the Objective Resolution moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nations passion.. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.40 If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The judgment of the Delhi High Court reflects a sense of conscience and empathy towards the sexual minorities, emotions that were hitherto unknown. Section 377, in its criminalisation of homosexual activity, was a repressive measure on the fundamental rights of the LGBT community. The repression of anti-homosexuality laws has been recognized by

40

Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65

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various legal systems in the world. From Lawrence v. Texas41 in the United States to Minister of Home Affairs v. Fourie42 in South Africa, the judicial framework of the common law system has recognized the rights of homosexuals to their freedom of sexual preference. On a more abstract level, the judgment attempts to answer the question of collective societal morality against the individuals liberty. The Court has prioritized individual liberty over the idea of collective social morality and thus, has laid the path for an individualistic approach in judicial decisions. In so far as its implications are concerned, the judgment may be overridden by a legislative measure, but it shall stand as one of the cornerstone judgments in the history of individual rights and constitutional governance in India.

41 42

Supra note 13

(CCT25/03) [2003] ZACC 11: 2003 (5) SA 301 (CC); This case legalised same-sex marriages in South Africa.

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BIBLIOGRAPHY STATUTES 1. INDIAN PENAL CODE, 1860; 2. THE CONSTITUTION OF INDIA BOOKS 1. Arvind Narrain and Marcus Eldridge, THE RIGHT THAT DARES TO SPEAK ITS NAME, Alternative Law Forum, Bangalore, 2009; 2. M.P.Jain, INDIAN CONSTITUTIONAL LAW, Wadhwa & Co.Nagpur (ed.5, 2003) 3. Ruth Vanita, QUEERING INDIA, Routledge, New York (2002). ARTICLES 1. Alok Gupta, Section 377 and The Dignity of Indian Homosexuals, Economic and Political Weekly, Vol. 41, No. 46 (Nov. 18-24, 2006), pp. 4815-4823 2. Arvind Narrain, The Articulation of Rights around Sexuality and Health: Subaltern Queer Cultures in India in the Era of Hindutva, Health and Human Rights 153 (2004).; 3. Bhargav K. Joshi and Neha Mary Koshy Judicial Interpretation of Article 21 in The Naz Foundation Case: Privacy - A Moral Right or A Creature of an Amoral Constitution?, 2 NUJS L. Rev. 541 (2009) 4. Dr. Mahendra P. Singh, Decriminalisation of Homosexuality and the Constitution, 2 NUJS L. Rev. 361 (2009) 5. Peoples Union for Civil Liberties (PUCL) Report on Rampant violation of rights of Sexual Minorities Available at http://www.pucl.org/reports/Karnataka/2001/sexualminorities-pr.htm; (last visited on 30th of November, 2011) 6. Siddharth Narrain, Being a Eunuch in India (http://www.countercurrents.org/gennarrain141003.htm; last visited on 29th of November, 2011) 7. Siddharth Narrain, The Queer Case of Section 377 (http://www.sarai.net/publications/readers/05-bareacts/ 06_siddharth.pdf; last visited on 30th of November, 2011). 8. Sonia K. Katyal, Sexuality and Sovereignty: the Global Limits and Possibilities of Lawrence, 14 WILLIAM AND MARY BILL OF RIGHTS L.J. 1429, 1452 (2006).
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9. Vikram Raghavan, Navigating The Noteworthy And Nebulous In Naz Foundation, 2 NUJS L. Rev. 397 (2009)

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