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Suresh Kumar Koushal v. NAZ Foundation Civil Appeal No. 10972 of 2013 (Arising out of SLP (C) No. 15436 of 2009)
JUDGES: G.S. Singhvi, Sudhansu Jyoti Mukhopadhaya, JJ.
Date of Decision: 11-12-2013

Respondent NAZ Foundation is a Non-Governmental Organisation (NGO) filed a writ petition before the Delhi High Court praying for grant of a declaration that section 377 of IPC to the extent it is applicable to and penalises sexual acts in private between consenting adults is violative of articles 14, 15, 19(1)(a)-(d) and 21 of the Constitution. The respondent pleaded that the thrust of section 377, IPC is to penalise sexual acts which are “against the order of nature”; that the provision is based on traditional Judeo-Christian moral and ethical standards and is being used to legitimise discrimination against sexual minorities; that section 377, IPC does not enjoy justification in contemporary Indian society and that the section’s historic and moral underpinning do not resonate with the historically held values in Indian society concerning sexual relations.
The Delhi High Court, however, dismissed the writ petition by observing that no cause of action has accrued to the respondent and purely academic issues cannot be examined by the Court. The review petition filed by the respondent was also dismissed by the High Court. The respondent then challenged both the orders of the High Court by filing Special Leave Petition before the Supreme Court. The Supreme Court remitted the writ petition to the High Court for fresh decision. The Division Bench of the Delhi High Court extensively considered the contentions of the parties and declared that section 377, insofar as it criminalizes consensual sexual acts of adults in private is violative of articles 21, 14 and 15 of the Constitution. Aggrieved thereby the petitioner preferred an appeal before the Supreme Court against the decision of the High Court.

Constitutional validity of section 377 of IPC.

Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that section 377 suffers from the vice of arbitrariness and irrational classification. What section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes if the person is found guilty. Therefore, the High Court was not right in declaring section 377 of IPC ultra vires articles 14 and 15 of the Constitution.

While reading down section 377, IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans genders and in last more than 150 years less than 200 persons have been prosecuted for committing offence under section 377, IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of articles 14, 15 and 21 of the Constitution. The requirement of substantive due process has been read into the Indian Constitution through a combined reading of articles 14, 21 and 19 and it has been held as a test which is required to be satisfied while judging the constitutionality of a provision which purports to restrict or limit the right to life and liberty, including the rights of privacy, dignity and autonomy, as envisaged under article 21. In order to fulfill this test, the law must not only be competently legislated but it must also be just, fair and reasonable. Arising from this are the notions of legitimate state interest and the principle of proportionality.

The respondent attacked section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the Lesbian Gay Bisexual and Transgender (LGBT) community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending section 377, IPC.

Section 377 of IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.

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