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.
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 efforts 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. After 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.
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 effectively tackle issues of discrimination, physical harassment, corruption and human rights.
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 effectiveness 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 “affirming that fundamental rights of sexual minorities cannot be trumped by vague notions of culture and morality.”
Naz Foundation (India) Trust Lawyers Collective (http://www.lawyerscollective.org/)
