CASE ANALYSIS AND CASE COMMENT ON-
SECTION-377:
NAZ FOUNDATION VS. GOVT. OF NCT OF DELHI
1. INTRODUCTION
The judgment of the Delhi High court in Naz Foundation v. N.C.T. of Delhi[1] and Others, wherein the Judges decided the criminalization of provincial legislation to the extent that it penalizes sexual intercourse between homosexual people in private, was confronted in Apex Court of India. Besides, dated 6 September 2018, the Indian Supreme court rendered a historic judgment denouncing Section 377 prohibiting homosexuality. Ever since the dissolution of a verdict, the tone of things has changed. Many within the community also had the potential to step out to their family members and at their respective workplaces. Now there are more transparent conversations about the enigmatic structure and individuals out there have begun recognizing these systems. Legislative change would inevitably lead to an inspirational era, however, genuine economic parameters don't even really progress in such a state of equilibrium.
The Naz Foundation[2] has been one of the nation's leading non-governmental organizations since 1994, chipping away at people's AIDS/HIV, reproductive education, and well-being. The organization in the year 2001, recorded a petition before the High Court of Delhi questioning the validity defined under Section 377, alleging that the censured law completely overlooked Articles 14, 15, 19, and 21 which hold a prominent place in the Constitution of India. Justice Badar Durrez and Chief Justice B.C. Patel a two-judge bench disqualified the plea in 2001, following that the members knocked on the doors of the apex court. Further, the Supreme Court believing this issue to be credible of thinking ordered the High Court to examine the matter afresh. The High Court of Delhi consequently took into consideration of the appellate court.
The Delhi High Court’s interpretation is constructive reasoning to the extent that it addresses numerous issues about the enforcement of Section 377. While assessing its striking similarity to Articles 14, 15, 19, and 21, the Council determined the shielded moral authority of the law
undergoing indictment. Despite holding that homosexual interests began to fall within the entitlement of human dignity and protection, the court concluded that Section 377 actually constitutes an instantaneous violation including its right so, here as matter of fact, the essence of Art.21[3] was also infringed.
The Court granted the tests established sometime around the Supreme Court after the referendum in “State of West Bengal v. Anwar Ali Sarkar[4]”, to address the matter in violation of Article 14. The justices upheld that a discretionary disparity was created by the condemned law and that there was no equitable connection between ameliorating sexual maltreatment of children or achieving optimal well-being and decriminalizing premarital sexual intercourse among adults. At that moment in time, the court proceeded to decipher the word "intercourse" in Article 15 and emphasize intimate relations, and also to provide an extensive "sexual orientation" undercut.
Proceeding with this understanding, the Court held that Section 377 was, at first glance, discriminatory to sexual minorities and accordingly still disregarded under Article 15. With the repealed legislation nullifying Articles 21 and 14, the Jury decided it was futile to address the issue concerning infringement of Article 19. During an offer of conclusiveness, the tribunal extended the concept of severability only to the degree of decriminalizing consensual sex between adults to examine the opposed policy.
The threshold of response to the verdict was of incredible satisfaction and outrageous euphoria from the country's sexual minorities, whereas stringent activists condemned this with equal energy. The judgment is not only a declaration of a court in clear legitimate terminology when it has seen its potential responsibility adequately, and it communicates to that same pathway to equality of the sexual minorities, something aggregate that has been silenced and marginalized since quite a while ago. It is indeed enormous because it considers the individual's sexual freedoms in the field of the fundamental rights cherished in “Part III of the Constitution”.
The above case, and most of the literature presented in this particular instance by the plaintiffs, claimed here that 'unnatural sex' whereby 377 has been used to prosecute seemed to have far more to do with sexual orientation just like gender identity. It will be evident that whilst the judges acknowledged such relation throughout how they cited these different forms together during several aspects of the verdict. Even in the segment which also corresponds with identity politics, the strongest signal that the judges intended this statement to broaden to discriminatory practices based on gender identity is. Arbitrators contribute to the increasing international humanitarian jurisprudence which also deals with upholding the basic human rights to everyone, irrespective of gender or sexual orientation.
2. LITERATURE REVIEW
The current research is case-specific and hence the review of literature enunciates that no direct sources are existing on the current topic. The researcher has performed a background check as to what laws are relevant to such cases. The “researcher starts afresh right from the facts, proceedings of the lower court, High court, and eventually the Supreme court. To obtain a clear picture of the same, the researcher refers to the journal The Public and Constitutional Morality Conundrum: A Case-Note on The Naz Foundation Judgement[5]” which gives a detailed description of the atrocities faced by the community concerning various Indian cases and English cases as well.
“Right to Privacy in Naz Foundation: A Counter-Heteronormative Critique[6]” is another journal that “adds value to the current case analysis. The journal article is a detailed description of various definitions given by jurists on privacy concerning LGBTQ individuals. This would help compare the references made in the judgment of the current case”.
The journals, research articles, and reports referred by the researcher are not conclusive intrinsically but the researcher had to analyze the data for other relevant factors to form a conclusion. The researcher mainly depended on legislation and the conclusions are based on the same. Section 377 enacted by the British in 1861, which was passed by British India was a crucial source to the researcher as it is the act that has been used over generations to harass, blackmail, extort, and in rare cases, arrest LGBT persons. The researcher also referred to the Criminal Tribes Act of 1871[7] which was strictly applicable to the Eunuchs. On the assumption that such groups of people are further 'predisposed' to break the law, the Criminal Tribes Legislation was enacted. These have been referred to check the position of the individuals of the particular community in India.
The reference to the “Crystallizing Queer Politics-The Naz Foundation and its Implications for India’s Transgender Communities[8]” has been made in a research paper authored by Siddharth Narrain. As the journal draws the plinth for eliminating multiple aspects of contempt for people, on not just the grounds of gender identity, but then also one’s sexual orientation, the latter research is quite attributable to the literature review. Close interaction with the people, administrators, and political leaders of these precincts reveal a great enthusiasm amongst all to improve the LGBTQ individuals, the general standard of living. This journal mostly talks about the need for the protection of the interest of the people and emphasizes legal attention to safeguard their rights.
3. RESEARCH METHODOLOGY
The current research is primarily based on the tenets of doctrinal research. The idea of referring and analyzing the existing data such as laws and statutes connote doctrinal research. The researcher believes that the present research is majorly dependent on existing laws and how they have an impact on each other. To perform effective research on such a topic, it is best suggested to prefer doctrinal research and analyze various relevant laws in place.
The researcher also analysis the numerous definitions of privacy, gender equality among the transexuals, transgender, eunuchs stated by “various jurists and also the analysis of judicial precedents relevant to the current case which requires the researcher to pay attention to the intricate words and details in them. The judicial precedents not only include Indian cases but also English cases as the current problem itself have originated from English law and the reference to the same would help in comprehending the general idea of the current search. The interpretation of words and referring to precedents relevant to the current case, all fall in the purview of doctrinal research. Hence, the researcher proposes doctrinal research as it best fits the current case analysis”.
4. RESEARCH QUESTIONS
1. Whether equality can be accomplished for the LGBTQ community by the enforcement of amendments that are indiscriminate?
2. If an individual behaves consensually without offending another in conveying their identity, infringement of that precinct would be a breach of privacy?
3. Whether LGBTQ individuals have been exposed to human rights violations and whether it is justified on grounds of public morality to deprive their constitutional rights?
5. FINDINGS & ANALYSIS
The decision in “Naz Foundation v. Govt. of NCT” (hereinafter “Naz Foundation"), which read down Section 377 of the Indian Penal Code to decriminalize consensual sex between adults, has been one of the most publicly debated judgments in Indian history. Jurists and legal academics, lawyers, political commentators, celebrities, activists, and even a few politicians have welcomed the judgment. The decision has been welcomed for a variety of reasons.
Section 377 enacted by the British in 1860, has been used over generations to harass, blackmail, extort, and in rare cases, arrest LGBT persons. While newspapers and televised debates (for a change) debated the impact of the case on homosexuals, what remained understated was the pioneering discourse on 'gender identity and gender identity-based discrimination that the case has examined. The reason it is important to emphasize that the Naz Foundation decision applies to discrimination based both on sexual orientation and gender identity is because these terms are often conflated. It is necessary to differentiate about their race or ethnicity from their sexual behavior, because transsexual and transgender individuals may have any homosexuality.
Along with its enactment as legislation in 1862, Section 377 of the Indian Penal Code, a conceit of prefectural advancement, prohibited "unnatural sexual actions". These very practices are circumscribed by homosexuality and therefore can rely on rehabilitative initiatives. In the colonial era, legislation prohibiting sexuality and transsexual activity was retained by governmental authorities and regulatory bodies worldwide, legitimizing the latter on basis of “tolerability and ethical quality". Freedom and rights' claim could be considered one of the best delving steps to reclaim India's sexual minorities from law-based oppression and intimidation due to the sheer statute.
While it is true that the operative order in the Naz Foundation decision only deals with reading down Section 377, it goes far beyond just decriminalization and strikes at the roots of homophobia and gender identity-based discrimination. The judges have used a vast array of materials to come to their remarkable decision. A large part of this material deals with discrimination against the transgender community in India, the role public morality has played in developing the fundamental rights jurisprudence, gender identity, and the right to equality, and the limited role that any privacy-based intervention can play in the counter-heteronormative struggle.
5.1 DISCRIMINATION AGAINST THE TRANSGENDER COMMUNITY IN INDIA
Naz Foundation verdict “extends beyond the mere reading down of Section 377 of the Indian Penal Code and provides the plinth for the elimination of all forms of discrimination against persons, not merely based on their sexual orientation but also their gender identity. A close reading of the judgment along with the sources and affidavits that the courts have relied on to come to their decision makes it abundantly clear that the Naz Foundation decision has direct implications for hijras, Kothi’s, FTMs, MTFs, transsexuals and intersexed persons”.
For instance, the judges talk about Jayalakshmi's case[9] (“case which was decided by a bench headed by Chief Justice Shah when he was the Chief Justice of the Madras High Court.) This case dealt with an aravani who committed suicide by immolating herself in a police station. The police had picked her up on charges of theft and had sexually and physically abused her on a routine basis. Her brother filed the petition. The court, in this case, found the police guilty, and ordered compensation of Rs 5 lakhs to the petitioner's brother”.
The Court also considered several affidavits filed before it by one of the petitioners, Voices Against 377, where several LGBT persons testified and described how Section 377 was used against them. Amongst these, the judges in the Naz Foundation decision specifically mention the Bangalore incident. “The victim of the torture was a hijra from Bangalore, who was at a public place dressed in female clothing. The person was subjected to gang rape and forced to have oral and anal sex by a group of hooligans”. Later, a woman has been transported to a station house in which she was disemboweled, handcuffed to a window, severely brutalized.[10]
The judges refer specifically to the Yogyakarta Principles[11] “is a set of international human rights principles relating to sexual orientation and gender identity that has been distilled from existing laws and principles. These principles define both sexual orientation and gender identity, making a distinction between the two”. According to these principles, “sexual orientation” is mentioned about the propensity of every human for significant mental, objectively disordered and behavioral desire, including interpersonal and sexual relations towards, individuals of a man or a woman or even the same gender[12] and maybe more than one sex; and 'gender identity is usually attributed to the enormously felt inward and personal genitalia perception of each individual, and it may not even adhere to the assigned sex at birth, along with the moral sense of the individual ("which, if voluntarily chosen, may entail a change in the color or function of an organism through medical, surgical or other means) and other gender expressions, including clothes, speech, and mannerisms"[13].
5.2 GENDER IDENTITY AND THE RIGHT TO PRIVACY
In its reasoning related to Article 21, the concept of basic humanity respects the capacity to make choices about one's action based on the sovereignty of both the individual will and freedom of thought and response of the person. On this presumption of integrity, the Tribunal extracts an ideology of confidentiality. "The concept of privacy of the Court deals with individuals, not places. “The court goes well beyond the principle of perceptual privacy and embraces decisive privacy. It found that freedom of speech isn't just the right of doing what you're doing in 'private spaces such as the home, but rather the right to control on how to pursue your existence. Privacy has been held to protect personal autonomy.[14] The judges quote from the National Coalition of Gay and Lesbian Equality (NCGLE) judgment[15] of the South African Constitutional Court” to strengthen the point:
"For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes. A person cannot leave behind his sense of gender or sexual orientation at home."
Therefore, the perception of the right to privacy, freedom, and dignity by judges has significant consequences for transgender people. While the courts have ruled unconstitutional sexual intercourse between consenting adults, it will indicate that the judgment has effectively shielded intimacy of the same sex in public spaces, as well as hijras, kothis, and other transgendered individuals in designated areas. Therefore, this judgment is equally covered by a hijra harassed by the police because she was intimate with a partner in a park, a Kothi who is verbally assaulted because of the way she walks, or an FTM who was assaulted by pedestrians at a bus station because of his sexual orientation or a transsexual who is harassed because of his clothing.
5.3 GENDER IDENTITY AND THE RIGHT TO EQUALITY
After having laid down the “general conception and scope of the right to equality, the judges address the specific point of whether discrimination based on sexual orientation can be read into Article 15[16] of the Constitution”. The reason the judges refer only to sexual orientation in this section is that the petitioners had framed their arguments in this manner. The petitioners had argued that “Section 377 discriminates on the ground of 'sexual orientation', which although not specified in Article 15, is analogous to the grounds mentioned”. However, implicit in their assertion that sexual orientation can be read into the grounds listed in Article 15(1), is that sexual orientation and gender identity can be read into the grounds listed in Article 15(1). This can be inferred from the logic that the judges used to come to address the petitioner's argument that 'sex' in Article 15, cannot be understood to apply only to 'gender' and should be applied to 'sexual orientation' too.
The judges first elaborated on the right to equality in Articles 14 and 15 of the Constitution and in doing so referred to the “Declaration of Principles of Equality issued by the Equal Rights Trust in April 2008, which they describe as the current international understanding of principles of equality. Part-II of the Declaration lays down the right to non-discrimination. The right to nondiscrimination is stated to be a freestanding fundamental right, subsumed in the right to equality”. Here, discrimination is quoted in the following way[17]:
“Discrimination must be prohibited where it is on grounds of race, color, ethnicity, descent, sex, pregnancy, maternity, civil, family or career status, language, religion or belief, political or other opinions, birth, national or social origin, nationality, economic status, association with a national minority, sexual orientation, gender identity, age, disability, health status, genetic or other predisposition toward illness or a combination of any of these grounds, or based on characteristics associated with any of these grounds.".
The judges, while agreeing with the petitioners' contention that sex should be read to mean sexual orientation, say:
"The purpose underlying the fundamental right against sex discrimination is to prevent behavior that treats people differently for the reason of not conforming with generalizations concerning 'normal' or 'natural' gender roles. Discrimination based on sexual orientation is itself grounded in stereotypical judgments and a generalization about the conduct of either sex."
Clearly, if the crux of the problem is discrimination based on 'normal' and 'natural' gender roles, the judges' understanding of the term 'sex' includes aspects of both sexual orientation and gender identity.
Even assuming that this argument does not hold, one can read discrimination flowing from gender identity to be based on a ground analogous to those specified in Article 15. “Legal commentators have stated that the applicability of the Naz Foundation decision can be extended to grounds that are analogous to those specified in the Article, based on the 'immutable' nature of the ground of gender identity and its effect of potentially impairing the personal autonomy of an individual.[18] Since all autonomy-related grounds can now claim the protection of Article 15”, there can be no doubt that 'gender identity is one of these grounds.
One such judgment now has a much effect upon someone experiencing persecution based on sex, as the judges have extended horizontal defense, i.e., prejudice by individual citizens and also against implicit prejudice and bullying. Hijra, Kothi, FTM, MTF, intersex or transgender people that are not accredited to facilities and who have been restricted access into public restrooms, socially ostracized or enrollment to educational institutions mostly on account of their sexual preference, all seem to have a defense underneath the constitution. “Existing, legislation that specifically target hijras, like. the Andhra Pradesh (Telangana Areas) Eunuchs Act[19] can be challenged. Transgender persons struggling to secure documentation related to their gender - whether school records, birth certificates, ration cards, or passports, can now claim recognition” relying on this particular verdict.
The study would assist the judiciary in these kinds of subjects to take their respected decisions. Through their understanding of laws and their significance, the thesis will also benefit scholars. Consequently, this study is necessary for the present day to comprehend and function on contemporary aforementioned potential conflicts of interest respectively.
6. CONCLUSIONS & SUGGESTIONS
The case of the Naz Foundation stands in stark contrast to the 2 significant court decisions in recent and comprehensive constitutional law: the NCGLE suit filed by the South African Constitutional Court in 1999, wherein the tribunal quashed the nation's anti-sodomy legislation, and the Lawrence case 49 in the USA, in which the Supreme Court reversed an established practice and ruled the statute book anti-sodomy laws unconstitutional. While the courts contend with the principles of "dignity, equality, and privacy", it is explicit that the pleadings in many of these cases and the judges' deliberations in such cases come to terms with sexual identity and the rights of homosexual people. Besides, in the texts of these judgments, the keywords 'transgender' and 'gender identity are rarely listed. This would be in drastic contrast to the findings of the Naz Foundation, in which the transgender community and the obligation to not be marginalized on the grounds of biological gender represents an essential aspect of the trial as well as the content of the decision.
The researcher concludes that while in fact, the Naz Foundation is a step in this direction to establish a principle-based justification for differentiating between various types of morality. To uphold public morality, nobody can contend that criminal law seems to have no vested interest in governing individualism. The IPC is composed of offenses inherently rooted in defending democratic norms. For example, the crime of bigamy is justified as engaging an "outrage on public decency and morals". To regard the denial of public morality by the Naz Foundation as a breach of this concept is to misinterpret the essence of the Foundation. The Naz Foundation's distinction between the general populace and institutional framework moral principles was nothing more than a dichotomy between right and wrong which is by the provisions of the Constitution and ethics which is not. The essence of the assertions by Rawls or Dworkin were on comparable lines, i.e., Government intervention in the preservation of social morality should therefore demonstrate that this still tends to fall within the boundaries of the Country's sanctioned function and therefore is not shielded by the institutionalization of homosexuality.
The decision of the Naz Foundation and the effectiveness in this case of the 'privacy argument' was not unforeseen. However, the influence of the Naz Foundation stands out, although appearing predictable when juxtaposed with the court's refusal to embrace and enforce the 'privacy argument' in the cases of compensation and sexual exploitation. The researcher has stated in this article that the Naz Foundation's handling of the 'privacy argument' has both limits and radical possibilities. But even then, the limitations do not encourage one to presume that the 'argument of privacy' is not crucial. It is the opposite, as asserted by the Naz Foundation.
“The most important observation in the Naz Foundation in the context of gay rights is when it declares that the Constitution of India recognizes, protects, and celebrates diversity. This takes the debate on gay rights beyond the tolerance paradigm, and brings it into the acceptance realm, laying the ground-work for a further grant of equal rights to the gay community, all on the foundation stone of our newly discovered constitutional morality”.
Nonetheless, one shall look forward to developing laws and execute them in a manner that does not conflict with the interests of another provision by the parental provision, the Constitution of India. For the nation, both, sexual orientation and the rights of the citizens are equal and unbiased.
7. REFERENCES
Ø Rohit Sharma, The Public and Constitutional Morality Conundrum: A Case-Note on the Naz Foundation judgment, Volume 2 Issue 3 445 445-454, (2009).
Ø Saptarshi Mandal, Right to Privacy in Naz Foundation: A Counter-Heteronormative Critique, Volume 2 Issue 3 525 525-540, (2009).
ØCriminal Tribes Act of 1871, Act No. XXVII of 1871 modified in 1897, (India).
ØNaz Foundation, https://www.nazindia.org/ (17-1-2021).
Ø Siddharath Narrain, Crystallising Queer Politics-The Naz Foundation and its Implications for India’s Transgender Communities, Volume 2 Issue 3 455 455-470, (2009).
Ø ARVIND NARRAIN & MARCUS ELDRIDGE, THE RIGHT THAT DAREs to SPEAK ITS NAME: DECRIMINALISING SEXUAL ORIENTATION AND GENDER IDENTITY IN INDIA 13-14 (2009).
Ø Clyde D Souza, Landlords Pressure Transsexuals in Dasarahalli to Vacate Homes, THE HINDU, November 12, 2008.
AUTHOR:
NAME: SAI SPANDANA REDDY BOMMU
COURSE: BBA LLB
SEMESTER-2nd.
[1] Naz Foundation v. N.C.T. of Delhi., AIR 2001 Delhi. [2]Naz Foundation, https://www.nazindia.org/ (17-1-2021). [3] INDIA CONST. art. 21 [4] State of West Bengal v. Anwar Ali Sarkar AIR 75, 1952 SCR 284 [5]Rohit Sharma, The Public and Constitutional Morality Conundrum: A Case-Note on the Naz Foundation judgment, Volume 2 Issue 3 445 445-454, (2009). [6]Saptarshi Mandal, Right to Privacy in Naz Foundation: A Counter-Heteronormative Critique, Volume 2 Issue 3 525 525-540, (2009). [7] Criminal Tribes Act of 1871, Act No. XXVII of 1871 modified in 1897, (India). [8]Siddharth Narrain, Crystallizing Queer Politics-The Naz Foundation and its Implications for India’s Transgender Communities, Volume 2 Issue 3 455 455-470, (2009). [9] JAYALAKSHMI VS. STATE OF TAMIL NADU (2007) 4 MLJ 849. [10]W.P.(C)7455/2001. See Naz Foundation v. Union of India, supra note 1 [11] Supra note 1. [12] Naz Foundation v. Union of India, supra note 1 [13] Id [14]ARVIND NARRAIN & MARCUS ELDRIDGE, THE RIGHT THAT DAREs to SPEAK ITS NAME: DECRIMINALISING SEXUAL ORIENTATION AND GENDER IDENTITY IN INDIA 13-14 (2009). [15]National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6. [16]Article 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. [17] (2009) 160 DLT 277; W.P. (C) No. 7455/2001 of 2009 (Delhi HC). [18] Tarunabh Khaitan, Good for All Minorities, THE TELEGRAPH (Kolkata) July 9, 2009. [19]Clyde D Souza, Landlords Pressure Transsexuals in Dasarahalli to Vacate Homes, THE HINDU, November 12, 2008.
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