Naz Foundation [Petitioner] is a non-governmental organisation (NGO) dedicated to HIV/AIDS outreach and intervention with the men-who-have-sex-with-men (MSM) community. They filed a Public Interest Litigation challenging the constitutional validity of Section 377, arguing that it severely hampered HIV/AIDS public health efforts and thus the right to health of the MSM community, and that it violated their right to dignity, privacy and equality.
The National Aids Control Organization (NACO) a subdivision of the Health Ministry, submitted an affidavit corroborating the Naz Foundation’s contention that Section 377 hampers HIV outreach and prevention efforts. By driving high-risk activities underground, NACO said, Section 377 made it extremely difficult to get needed information and services to those most at risk of contracting HIV.
Voices Against 377 is a coalition of twelve women’s rights, child rights and LGBT groups which was dedicated to ending Section 377’s criminalisation of the lives of LGBT persons. In their affidavit, they advanced the argument that Section 377 creates an association of criminality towards people with same sex desires and that its continued existence creates and fosters a climate of fundamental rights violations of the LGBT community.
The Union of India was represented by the Ministry of Home Affairs and the Ministry of Health & Family Welfare. Much to the Court’s consternation, the two ministries took contradictory stands, with the Home Ministry supporting Section 377 and the Health Ministry siding with the petitioner’s public health arguments against Section 377. The argument of the Home Ministry was that law cannot run separately from society and that Section 377 of the IPC only reflected the values and morals of Indian society.
Mr. B. P. Singhal, a former BJP politician, submitted an affidavit arguing that Indian society considers homosexuality to be repugnant, immoral and contrary to the cultural norms of Indian society and therefore it is deserving of criminalisation.
Joint Action Committee Kannur (JACK) submitted an affidavit disagreeing with the Naz Foundation and NACO’s contention that Section 377 hampers HIV/AIDS prevention and treatment. Essentially, they argued that Section 377 in fact served to prevent the spread of HIV by deterring people from engaging in high-risk activity. They also denied that HIV causes AIDS.
The Government of NCT of Delhi, the Delhi State Aids Control Society and the Delhi Commissioner of Police were also parties to the petition. They did not file any affidavit or written submissions.
Originally posted by Siddharth Narain on pad.ma