Landmark gay rights ruling to face challenges

By Vivek Vashi, Sushma Nagaraj and Charles Desouza, Bharucha & Partners

Apublic interest litigation (PIL) filed by Naz Foundation, an NGO engaged in the field of HIV/AIDS prevention, before Delhi High Court, challenged the constitutional validity of section 377 of the Indian Penal Code, 1860, which deals with “unnatural offences”. Naz contended that 377 violated several articles of the Constitution of India, 1950, in that it criminalizes consensual sexual acts between adults in private.

Vivek Vashi Bharucha & Partners
Vivek Vashi
Bharucha & Partners

The PIL was based on the following premises: (a) The concept of “unnatural sexual acts” has historical or logical rationale, and is arbitrary, unreasonable and violates article 14 (which concerns equality before the law); (b) The expression “sex” as used in article 15 (which concerns prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth) should include sexual orientation, criminalization of which therefore violates article 15; (c) 377 infringes article 19 (which concerns protection of certain rights regarding freedom of speech, etc.), specifically article 19(1)(a) to (d), inasmuch as an individual’s ability to make personal statements, right of association, assembly and right to move freely are restricted; (d) 377 abridges article 21 (which concerns protection of life and personal liberty) since sexual orientation figures prominently within an individual’s personality, is at the core of “private space” and is an inalienable component of the right to life and liberty; and (e) 377 is crippling HIV/AIDS prevention efforts since criminalizing private, consensual homosexual acts serves as a weapon for harassment of sexual minorities by law enforcement agencies, with the effect of driving the activities of homosexuals underground.

The Union of India was represented by the Ministry of Home Affairs and the Ministry of Health and Family Welfare, which adopted different stands in relation to the PIL.

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Vivek Vashi is the mainstay of the litigation department at Bharucha & Partners, where Sushma Nagaraj and Charles Desouza are associates.


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