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

Constitutional Court in The National Coalition for Gay and Lesbian Equality v. The Minister
of Justice 64 :
“When everything associated with homosexuality is treated as bent, queer,
repugnant, the whole gay and lesbian community is marked with deviance and
perversity. They are subject to extensive prejudice because what they are or what
they are perceived to be, not because of what they do. The result is that a
significant group of the population is, because of its sexual non-conformity,
persecuted, marginalised and turned in on itself.”
The court also held that Section 377 falls foul of the equality guaranteed in Article 15,
particularly as regards ‘sex’. It found that “sexual orientation is a ground analogous to sex
and that discrimination on the basis of sexual orientation is not permitted by Article 15.” It
rooted its decision on a Canadian judgment, Corbiere v Canada 65, which held that such
grounds serve to permit decisions based on stereotypes, which compromise merit and call
attention to personal characteristics that are “immutable or changeable only at unacceptable
cost to personal identity.” Importantly, the court held that the discrimination prohibited by
Article 15 extends not just to State action but also to action which is perpetrated by one
citizen against another. It held that, “In our view, discrimination based on the ground of
sexual orientation is impermissible even on the horizontal application of the right enshrined
under Article 15.”
The court also found that Section 377 violated the right to life contained in Article 21 of the
Indian Constitution. Discussing the content of the right to life, the court held that it
encompasses the right to privacy as well as to human dignity. In discussing the growing
jurisprudence around the right to dignity, the court referred to the Yogyakarta Principles and
their definitions of sexual orientation and gender identity. The court also surveyed
developments in international jurisprudence on the subject quoting with approval from
judgments from across the world including Toonen v. Australia (Human Rights Committee),
Lawrence v. Texas (US Supreme Court) and The National Coalition for Gay and Lesbian
Equality v. The Minister of Justice (South African Constitutional Court). The judges also
referred to the right to equality enshrined in the International Covenant on Civil and Political
Rights, the understanding of the right to health in General Comment 14 on Article 12 of the
International Covenant on Economic, Social and Cultural Rights, the 2001 United Nations
General Assembly Special Session Declaration of Commitment on HIV/AIDS and the
statement endorsed by 66 states presented to the UN Human Rights Council in 2008 calling
for an end to discrimination based on sexual orientation and gender identity.
One of the most interesting sections of the judgment tackles the question of morality as a
ground for restricting fundamental rights. The court framed the issue stating that where a
state law infringes the right to privacy there must be a compelling state interest and asked
whether the enforcement of public morality amounts to a “compelling state interest.” In
dealing with this issue, the judges distinguished popular morality from “constitutional
morality” holding:
“Thus popular morality or public disapproval of certain acts is not a valid
justification for restriction of the fundamental rights under Article 21. Popular
64 1999 (1) SA 6
65 (1999) 2 SCR 203
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