SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

men and women can enjoy such right whereas other people cannot enjoy it only
because of their different gender identity and sexual orientation [sic].”
Finally, it issued two directives to the Nepal government. First, after completing a necessary
study in this regard, to either make appropriate laws or amending existing laws to ensure
legal provisions, which allow people of different gender identity and sexual orientation to
enjoy their rights as other people without any discrimination. Second, based on the claim of
equality of the petitioners’, to form a committee to carry out a thorough study and analysis of
international instruments relating to human rights, values recently developed in the world in
regard to same sex marriage, the experience of countries where same sex marriage has been
recognized and its impact on society based on the recommendations of which it is ordered to
make legal provisions as deemed suitable.
In India, the decision of the Delhi High Court in Naz Foundation (India) Trust v.
Government of NCT of Delhi & others 63 considered, inter alia, whether Section 377 of the
Indian Penal Code, 1860 which criminalised consensual non-procreative sex between adults
violated the equality guarantee contained in Articles 14 and 15 of the Indian Constitution.
Article 14 is the overarching equality clause that proscribes the State from denying any
person equality before the law or the equal protection of the laws. Article 15 more
specifically proscribes the State from discriminating against any citizen on grounds only of
religion, race, caste, sex or place of birth. While pointing out that although “Article 14 forbids
class legislation it does not forbid reasonable classification for the purpose of legislation”
the court reiterated the view of many earlier decisions, that the classification ought to have a
causal connection with the object sought to be achieved by the legislation. It added that a
further test that legislation should pass to fall within the vires of the equality guarantee is that
it should not be arbitrary. The court held that the State’s argument that the law was required
to protect women and children had no bearing on consensual sex between adults and that it
failed the classification test. It held that:
“...it is not within the constitutional competence of the State to invade the privacy
of citizens lives or regulate conduct to which the citizen alone is concerned solely
on the basis of public morals. The criminalisation of private sexual relations
between consenting adults absent any evidence of serious harm deems the
provision’s objective both arbitrary and unreasonable. The state interest ‘must be
legitimate and reasonable’ for the legislation to be non-arbitrary and must be
proportionate towards achieving the state interest. If the objective is irrational,
unjust and unfair, necessarily classification will have to be held as unreasonable.
The nature of the provision of Section 377 IPC and its purpose it criminalise
private conduct of consenting adults which causes no harm to anyone else. It has
not other purpose than to criminalise conduct which fails to conform with the
morals or religious views of a section of society. The discrimination severely
affects the rights and interests of homosexuals and deeply impairs their dignity.”
The court observed that Section 377 effectively targeted homosexual men as a class and
criminalised them, although it facially criminalised sexual acts without naming homosexuals.
In doing so the court quoted the following passage from the judgment of the South African
63 Writ Petition (Civil) No.7455/2001 [Delhi High Court], Date of Decision: 2nd July, 2009
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