Doctrine of presumption of constitutionality analysis of naz foundation case. 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. The naz foundation challenged both orders and the writ petition was remitted for a fresh decision in 2006. It filed a public interest litigation under article 226 of the constitution of india original writ jurisdiction of high courts in the delhi high court.
In maneka gandhi, it may be recalled, the supreme court had acknowledged the. The naz foundation india trust is a nongovernmental organisation in that country that works on hivaids and sexual health. Mechanisms, laws, institutions and bodies constituted for the protection and betterment of these vulnerable sections. This case concerned a writ petition a public interest action taken before the court brought by an indian ngo working with hivaids sufferers.
Hindu religion always adopts new ideas and thus progressive in nature and had a. Naz foundation the supreme court rules section 377 ipc does not suffer from the vice of unconstitutionality and the declaration made by the division. Right to love published by alternative law forum, bangalore, india. Suresh kumar koushal and another v naz foundation and others.
To achieve its mission, global freedom of expression undertakes and commissions research and policy projects, organizes events. The protection of privacy under the indian constitution, developed through case law by the supreme court, has been advanced further by the delhi high courts decision to strike down provisions criminalising homosexual sexual conduct on grounds of invasion of privacy naz foundation v government of nct of delhi wpc no. In this judgement, the court read the word sex given in art. Brought originally before the high court of delhi and naming delhi as a. The case was instituted by the naz foundation naz,8 a non governmental. Jul 21, 2014 naz foundation case is an earnest emphasis of the vision of indias founding fathers to build an inclusive and tolerant republic. The textbook authors footnotes are numbered a through e. The section 377 curative petition on february 2, 2016, the supreme court of india referred a curative petition in the matter of suresh kumar koushal and another v. In its 2009 decision, the high court found in favour of the naz foundation and accepted its. Government of nct of delhi, the delhi high court struck down section 377 of the ipc. Naz foundation and others to a fivejudge bench of the same court. The naz foundation submitted that section 377 violated the fundamental rights guaranteed under articles 14, 15, 19 and 21 of the. A summary of the supreme court verdict on section 377 brief background section 377 of the indian penal code, 1860 makes certain acts illegal. Government of nct of delhi high court of delhi at new delhi wpc no.
The petitioners challenged the provisions constitutionality and contended that the section was violative of article 14, 15, 19 and 21 of the constitution. Preparing this summary prompted a number of difficult decisions about striking an appropriate balance between length 105page original version and essentials which are ubiquitous from historical, social, and legal. The course is designed for students who have completed three semesters of calculus and one semester of linear algebra. Columbia global freedom of expression seeks to advance understanding of the international and national norms and institutions that best protect the free flow of information and expression in an interconnected global community with major common challenges to address. The case has come to its conclusion after five years of the incident and is one of the most brutal acts ever to have.
Eventually, the supreme court directed that the high court should hear the case. The naz foundation matter the case was instituted by the naz foundation naz,8 a nongovernmental organization based in delhi dedicated to hivaids issues. Government of nct of delhi and others ert case note on 2 july 2009, the high court of delhi ended. Decriminalization of consensual sex between adults naz foundation case. Challenging the constitutionality of restrictions on samesex. 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. Here, i just want to highlight one aspect with farreaching constitutional implications. This writ petition has been referred by naz foundation, a non governmental. The verdict resulted in the decriminalization of homosexual acts involving consenting adults throughout india. This case study outlines the advocacy work of the naz foundation and its. Court by suresh kumar koushal challenging the naz foundation judgement 2009 fifteen other slps are filed challenging the naz foundation judgment by. Against this background, in section iv, i look at some of the aspects of the privacy analysis in the naz foundation judgment, and assess the gains and the limitations of the same, and the implications it might have for counterheteronormative politics. There have been a various disputes between interest groups and lawmaking bodies which would be dealt in the case analysis.
The naz foundation case section 377 interlinking and. From the above summary of submissions of the union of. Government of nct, delhi 1 hereinafter referred to as naz foundation in delhi high court. Mar 28, 2020 the four convicts who committed the gruesome and brutal act on the night of december 16th, 2012 were given the death sentence by the supreme court.
The constitutional validity of sec 377 of the indian penal code, 1860 shortened to ipc was challenged in the 2009 case of naz foundation vs. The decision of sk koushal v naz foundation which upheld the constitutional validity of section 377 has been making the rounds. The appellants rely on paras 21, 22, 50, 74 and 94 of the judgment of the division bench of the delhi high court in suresh kumar koushal v. Courselinked capstone in policy analysis and advocacy. Aspects of the case will surely be discussed in detail. A summary of the supreme court verdict on section 377. Jul 17, 2018 3 the curative petition being heard in sc in naz foundation 20 case should be concerned not only with the legality of section 377 of ipc but also with rights of lgbtq community. In july 2009, the division bench of the delhi high court declared that section 377 of the indian penal code that criminalizes. To achieve its mission, global freedom of expression undertakes and commissions research. Challenging the constitutionality of restrictions on same. They filed a writ petition arguing that section 377 of indian penal code was unconstitutional. Naz foundation case by the supreme court is rather an aberration considering other judgements delivered within and outside india by other courts. Neither the union of india uoi nor the nct of delhi had appealed against the judgment. Using the url or doi link below will ensure access to this page indefinitely.
Preparing this summary prompted a number of difficult decisions. Government of nct, delhi and ors, since private individuals, who were not parties in the original case, had no standing to challenge the high court decision. Decriminalization of consensual sex between adults an. Case summary suresh kumar koushal and another v naz foundation and others supreme court of india. Government of nct, delhi hereinafter referred to as naz foundation in delhi high court. Comparative analysis of section 375 and section 377 ipc. Naz foundation then filed a special leave petition before the supreme court of india challenging the orders of the delhi high court. After the naz foundation files a special leave petition for the case, the supreme court reinstates it in the delhi high court, citing the fact that it. Making out a case in favour of retention of section 377 ipc. Jul 02, 2009 the naz foundation india, a nongovernmental organization committed to hivaids 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.
Dec 11, 20 columbia global freedom of expression seeks to advance understanding of the international and national norms and institutions that best protect the free flow of information and expression in an interconnected global community with major common challenges to address. The union ministry of home affairs has opposed the petition claiming, inter alia, that section 377 ipc is a justified interference by public authorities in the interest of public safety and protection of health and morals. Naz presentation free download as powerpoint presentation. Doctrine of presumption of constitutionality analysis of. Delhi high court judgment example mollify page unaids. Naz foundation and others is a 20 case in which a 2 judge supreme court bench consisting of g. The petitioneras submission, that the provision is draconian in nature, became the sole issue in this case. Naz foundation case is an earnest emphasis of the vision of indias founding fathers to build an inclusive and tolerant republic. Naz foundation and others deepak kaneriya nliu, bhopal india is as we know is multi ethnic and culturally rich as well as diverse country. Turning to its substantive analysis, the supreme court first addressed the notion. Naz foundation, the petitioner, was an ngo working in the field of hivaids intervention and prevention.
Pronouncing the order in naz foundation india trust v. The decision is a reminder that the indian constitution is a vibrant, living document and its wide insurances must be alterably translated to include new circumstances and tests. Union of india, in 1002018, ashok row kavi and ors. Suresh kumar koushal and others, curative petition nos. Mar 07, 2014 the naz foundation case section 377 i am the love that dare not speak its name. A casenote on the naz foundation judgment rohit sharma the paper discusses the role public morality has played in developing the fundamental rights jurisprudence in. Procedural posture in 2001 a writ petition was filed by naz foundation, an ngo working in the public health field, to challenge the constitutionality of section 377 of the indian penal code, which criminalised as unnatural offences consensual oral and anal sex between adults in private. This resulted in the landmark case naz foundation v. This paper in the form of case study aims to establish the existence of fundamental rights of the lbgt in the light of the theory of ronald dworkin. Mukhopadhaya overturned the delhi high court case naz foundation v. The naz foundation india, a nongovernmental organization committed to hivaids 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.
It filed a public interest litigation under article 226 of the constitution of india original writ jurisdiction of high courts in the delhi high court challenging the constitutional validity of the section. This writ petition has been preferred by naz foundation, a. Joshi and neha mary koshy this paper is an appraisal of the interpretation of the law of precedent, international human rights law and morality put forth by the landmark judgment of naz. Case summary suresh kumar koushal and another v naz. The four convicts who committed the gruesome and brutal act on the night of december 16th, 2012 were given the death sentence by the supreme court. Government of delhi nct constitutional law i submitted by. Hindu religion always adopts new ideas and thus progressive in nature and had a place for every person. This case note sets out the facts of the case, examines the judicial reasoning behind the judgment and comments on some of the implications of the decision. Government of nct delhi the case was instituted by a nongovernmental organization based in delhi, naz foundation, which is devoted to the working of the issues of hivaids.
Dsmii 2nd edition of the apas diagnostic and statistical manual of mental disorders. Naz foundation which records evidence of various instances of the use of section 377 to harass members of the lgbt community. On the other hand, union ministry of health and family welfare has supported the petition and admitted that. This is a significant new chapter in the litigation that began in the year 2001. It is a delhibased organization that has been at the forefront of the battle against section 377 of the indian penal code that discriminates against individuals based on. The act which shook the whole nations caused the death of the 23yearold victim.