IN THE CASE OF-NAZ FOUNDATION V. GOVERNMENT OF N.C.T. OF DELHI

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The Delhi High court held section 377 of IPC unconstitutional in so far as it criminalises consensual sexual acts in private between adults who have attained 18 years of age being violative of Article 21,14, and 15 of the Constitution.  The provision or section 377 of IPC will continue to govern non-consensual penile ,non-vaginal sex and penial non-vaginal sex involving minors. This classification will hold good till the law is made by the Parliament to enforce the recommendation of 172nd report of the Law Commission. The Court made it clear that this Judgement would not result to Reopen the cases already decided and attaining finality. It also held to be a wrong notion that the same sex relation would erode the effect of Public Health services by spreading AIDS. The sphere of privacy allows persons to develop human relations without interferences from outside the community or the state. Section 377 denies a person's dignity and criminalises his or her core identity solely on account of his or her sexuality and is violative of Article 21. It denies a gay Person a right of full person. The Popular morality or public morality of certain acts is not a valid justification for restriction of fundamental rights under Article 21. 

Popular Morality is based on shifting and subjecting notions of right and wrong. If there is any type of morality that can pass the test of compelling state interest, it must be constitutional morality and not public morality.

To stigmise or to criminalize Homosexuals on account of their sexual orientation is against the Constitutional morality.

Article 15(2) incorporates the notions of horizontal application of rights which even prohibits discrimination of one citizen by another in the matter of access to public places. Discrimination on the ground of sexual orientation is impossible even on the Horizontal application of the right enshrined in Article 15.

If there is one constitutional tenet that can be said to be underlying theme of Indian Constitution, it is that of inclusiveness. The constitution reflects this value deeply ingrained in Indians society traditionally displayed. 

In every aspect of life, there is manifest in recognising a role for every one in the society. Those perceived as 'deviants' or 'different' by the majority are not on that score excluded or ostracized.  

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