BATCH 2019-24

SUBJECT: INTERPRETATION OF STATUES

THE DOCTRINE OF PRESUMPTION OF

CONSTITUTIONALITY

Submitted to: Submitted by:

Aakanksha Parashar Vamaxi Chauhan
Assistant Professor 91901041011
Faculty of Law B.COM LLB (Hons.)
Marwadi University Marwadi University

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DECLARATION BY THE STUDENT

I the undersigned solemnly declare that the project report titled on “The Doctrine of Presumption
of Constitutionality” is based on my own work carried out during the course of our study under
the supervision of MS. AAKANKSHA PARASHAR. I assert the statements made and
conclusions drawn are an outcome of my research work. I further certify that
• The work contained in the report is original and has been done by me under the general
supervision of my supervisor.
• The work has not been submitted to any other Institution for any other
degree/diploma/certificate in this university or any other University of India or abroad.
• We have followed the guidelines provided by the university in writing the report.
• Whenever we have used materials (data, theoretical analysis, and text) from other
sources, we have given due credit to them in the text of the report and giving their details
in the references.

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SUPERVISOR’S CERTIFICATE

This is to certify that the work incorporated in the project report entitled “The Doctrine of
Presumption of Constitutionality” is a record of work carried out by VAMAXI SHIVKUMAR
CHAUHAN,91901041011 Under my guidance and supervision for the award of Degree OF
B.Com LLB (Hons.), Faculty of Law, Marwadi University, Rajkot, India. To the best of my/our
knowledge and belief the project report
• Embodies the work of the candidates themselves,
• Has duly been completed,
• Fulfils the requirement of the Ordinance relating to the degree of the Marwadi University
and
• Is up to the desired standard both in respect of contents and language for being referred to
the examiners.

MS.AAKANKSHA PARASHAR,
Assistant Professor
Faculty of Law
Marwadi University

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ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not forget
to thank them.

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Index:

Sr. Number Particulars Pg. Number

1 Introduction 6-7

2 Rule of Construction 8-10

3 Limitations of the Rule 11

4 Severability 12-13

5 Section 377- Whether its constitutional or unconstitutional? 14-15

Delhi High Court ((Naz Foundtion v. Government of NCT of Delhi

6 16-20
& Ors.)
Supreme Court Judgment (Suresh Kumar Koushal & Anr. vs. Naz
7 21-24
Foundtion & Ors.)

8 Conclusion 25

9 Reference 26

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INTRODUCTION – PRESUMPTION OF CONSTITUTIONALITY

“It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by
which any law is passed, to presume in favor of its validity, until its violation of the Constitution
is proved beyond a reasonable doubt.”1

- Justice Bushrod Washington

A corollary of this maxim is that if the constitutional question turns upon circumstances, courts
will presume the existence of a state of facts which would justify the legislation that is
challenged.2

This principle of presumption of constitutionality of a statute “is but a particular application of

the canon of construction embodied in the Latin Maxim- ut res magis valeat quam pereat’3 -
which is an aid to the resolution of any ambiguities or obscurities in the actual words used in any
document that is manifestly intended by its makers to create legal rights or obligations….”.4 This
requires, so said Lord Bridge in Hector v. A.G. of Antigua and Barbados5, “that if it is possible
to read the statutory language as subject to an implied term which avoids conflict with
constitutional limitations, the court should be very ready to make such an implication.” This
presumption does not merely mean that the burden of proof lies on the attacking party. It also
means that in resolving a doubt or ambiguity, the court should lean in favour of the validity of
the statute.

There is, therefore, a presumption that the Legislature does not exceed its jurisdiction, and the
burden of establishing that the Act is not within the competence of the Legislature, or that it has
transgressed other constitutional mandates, such as those relating to fundamental rights, is

1
Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 270 (1827). See also Fletcher v. Peck, 6 Cr. (10 U.S.) 87, 128 (1810);
Legal Tender Cases, 12 Wall. (79 U.S.) 457, 531 (1871).
2
Munn v. Illinois, 94 US 113, 132 (1877); Lindsley v. Natural Carbonic Gas Co., 220 US 61, 78–79 (1911);
Metropolitan Cas. Ins. Co. v. Brownell, 294 US 580, 584 (1935).
3
It means: it is better for a thing to have effect than to be made void; the construction must therefore be such as will
preserve rather than destroy. See Broom’s Legal Maxims.
4
Lord Diplock in A.G. v. Momodou Jobe (1984) 1 AC 689, 702.
5
(1990) 2 All ER 103, 107.

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always on the person who challenges its vires.6 Unless it becomes clear beyond reasonable doubt
that the legislation in question transgresses the limits laid down by the organic law of the
Constitution it must be allowed to stand as the true expression of the national will. The principle
is however subject to the exception that once the citizen is able to establish that the impugned
legislation has invaded his fundamental rights, the State must justify saving the law. Further the
State may also have to satisfy that the restrictions imposed on fundamental rights satisfy the test
of proportionality which requires a stricter test of reasonableness.

One of the earliest statements of the principle is that of Chief Justice Marshall in Fletcher v.
Peck:

“the question, whether a law be void for its repugnancy to the constitution, is at all times
a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a
doubtful case. The court, when compelled by duty to render such a judgment, would be unworthy
of its station, of it were unmindful of the solemn obligations which that situation imposes. But it
is not on slight implication and vague conjecture that the legislature is to be pronounced to have
transcended its powers, and its acts to be considered as void. The opposition between the
constitution and the law should be such that the judge feels the clear and strong conviction of
their incompatibility with each other.”

6
Chiranjitlal Chowdhary v. Union of India, AIR 1951 SC 41, p. 45

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RULE OF CONSTRUCTION

If on one construction a given statute will become ultra vires the power of the legislature whereas
on another construction, which may be open, the statute remains effective and operative, the
Court will prefer the latter, on the ground that the Legislature is presumed not to have intended
an excess of its jurisdiction.7 But the rule applies only where two views are possible as to the
meaning of the statutory language.
General words may, therefore, be construed, narrowly or widely, with reference to the powers of
the Legislature and their meaning applied to those matters in respect of which the legislative
competence exists.8 Thus, if it is possible to read the statutory language as subject to an implied
term which avoids conflict with constitutional limitations, the court should be very ready to
make such an implication.
The principle was examined in some detail by the Federal Court in considering the validity of the
Hindu Women’s Right to Property Act, 1937. The Act which was passed by the Council of State
after commencement of Part III of the Government of India Act, 1935, when the subject of
devolution of agricultural land had been committed exclusively to Provincial Legislatures, dealt
in quite general terms with the ‘Property’ or ‘separate property’ of a Hindu dying intestate or his
‘interest in joint family property’. A question, therefore, arose whether the Act was ultra vires of
the powers of the Central legislature. The Federal Court held the Act intra vires by construing the
word ‘property’ as meaning ‘property other than agricultural land; Gwyer C.J. observed : “If the
word necessarily and inevitably comprises all forms of property, including agricultural land,
then clearly the Act went beyond the powers of the legislature, but when the legislature with
limited and restricted powers makes use of a word of such wide and general import, the
presumption must surely be that it is using it with reference to that kind of property with respect
to which it is competent to legislate and to no other. The leaned Chief Justice further observed:
“There is a general presumption that a legislature does not intend to exceed its jurisdiction, and
there is ample authority for the proposition that general words in a statute are to be construed
with reference to the powers of the legislature which enacts it.

7
In Re, Hindu Women’s Right to Property Act, AIR 1941FC 72, p. 75
8
New Delhi Municipal Committee v. State of Punjab, AIR 1997SC 2847

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The rule was applied by the Supreme Court in its construction of Section 124 A of the Indian
Penal Code. The section which relates to offence of sedition makes a person punishable who ‘by
words, either spoken or written or by sign or visible representations, or otherwise, brings or
attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the
Government established by law’. The section as construed by the Privy Council, did not make it
essential for an activity to come within its mischief that the same should involve intention or
tendency to create disorder, or disturbance of law and order or incitement to violence. The
Federal Court had, however, taken a different view. In the Supreme Court when the question
came up as to the constitutional validity of the section, the Court differing from the Privy
Council adopted the construction placed by the Federal Court and held that on a correct
construction, the provisions of the section are limited in their application “to acts involving
intention or tendency to create disorder or disturbance or incitement to violence; and one of the
reasons for adopting this construction was to avoid the result of unconstitutionality in view of
Articles 19 (1) (a) and 19(2) of the Constitution. Sinha, C.J., in speaking for the Court said: “It is
well settled that if certain provisions of law, construed in one way, would make them consistent
with the Constitution and another interpretation would render them unconstitutional, the Court
would lean in favour of the former construction. The application of this rule in this case is,
however, open to one objection. The basis of the rule being the assumed intention of the
legislature not to transgress the Constitutional barriers, how can that intention be assumed when
at the time the law was passed there were no such barriers; and the limitations as to legislative
competence were brought in by constitution long after the enactment of the law?. This criticism
finds support from the decision of the Supreme Court in Gulabbhai v. Union of India,9 but as
held in this case the principle of severability in application or severability in enforcement, if that
be possible, may still be applied. However, in spite of the above criticism it seems now settled
that a pre-constitutional law can be read down by interpretation to avoid its being declared
invalid as violating the Constitution.
In Govindlalji v. State of Rajasthan,10 where a question arose as to the constitutional validity of
the Rajasthan Nathdwara Temple Act (13 of 1959), the words ‘affairs of the temple’ occurring in

9
AIR 1967SC 1110, p. 1117 (para 18)
10
AIR 1963 SC 1638

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section 16 of the said Act were construed as restricted to secular affairs as on a wider
construction the section would have violated Articles 25 and 26 of the Constitution.
Just as general words may be construed in a limited sense to avoid the statute becoming
unconstitutional, so also words may be construed in a wider sense if a narrower construction
renders the law unconstitutional and that result is avoided by giving the words a wider meaning.
In an extreme case11 the Supreme Court, while upholding the validity of the Bhopal Gas Leak
Disaster (Processing of Claims) Act, 1985 which confers exclusive power on the Central
Government to make and prosecute all claims for compensation arising out of the Bhopal Gas
Leak Disaster, inferred an implied obligation of the Government to give interim relief to the
victims or their dependents for their sustenance and maintenance. This obligation was inferred,
as according to the majority view, it was necessary to sustain the constitutionality of the Act
which had deprived the claimants, who were poor persons, to sue for damages or to enter into
compromise or settlement in respect of their claims. This obligation was said to be implicit in the
spirit of the Act and constituted ‘the major inarticulate premise’ upon which the Act proceeded.
It was further held that sections 9 and 10 of the Act, which empowered the Government to frame
a scheme for registration and processing of claims, and creation of a fund for administration of
the scheme and which contemplated payments to claimants before adjudication or settlement of
the claims by the court ought to be meaningfully construed to effectuate the implied obligation.

11
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480

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LIMITATIONS OF THE RULE

Even acting within its competence neither parliament nor a State Legislature can violate any
provisions of Constitution. A law enacted by Parliament and State Legislatures is therefore open
to judicial review on the grounds of lack of legislative competence and violation of other
provisions of the Constitution. In deciding whether a provision is violative of a fundamental right
the test to be applied is of its “direct and inevitable effect” on the fundamental right.12
In applying the rule of construction of confining the general words to the field of legislative
competence, the limitations of this doctrine must also be kept in view. The rule applies unless the
restricted meaning of the words makes the legislation incomplete or unintelligible.13
Regulation 9(b), made under the Delhi Road Transport Authority Act, 1950, conferring
unrestricted power to terminate the services of a permanent or confirmed employee and
expressed in unambiguous terms, was not read down to save it and was declared ultra vires
offending Articles 14 and 21 of the Constitution.14 It was held by the majority that when the
provision in question is cast in a definite and unambiguous language or when the remaking of the
provision will lead to its distortion or when extensive additions or alterations will be needed to
save it, the rule will have no application and the Court will have no option but to declare the
provision ultra vires.
In its efforts to save laws from being declared invalid, court sometimes appears to exhibit
judicial ‘heroics’ in recasting them. In a case15 a rule of six lines providing for cessation of
membership of a society on non-payment of membership fee in advance by March for a year was
“read down” and recast into a rule consisting of thirty three lines to provide opportunity to the
member to prove that the fee was paid in time or that there was sufficient cause for non-payment.
This was done to avoid the rule being declared void for unreasonableness.
It, thus, seems to have become more and more difficult to answer the question regarding whether
a particular legislation will be read down to validate it or struck down as unconstitutional.

12
Maneka Gandhi v. Union of India (1978) 1 SCC 248
13
Venkatraman & Co. v. State of Madras AIR 1966SC 1089
14
Delhi Transport Corpn. V. DTC Mazdoor Congress AIR 1991 SC 101
15
Hyderabad Karnataka Education Society v. Registrar of Societies AIR 2000 SC 301

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SEVERABILITY

If the enactment cannot be saved by construing it consistent with its constitutionality, it may be
seen whether it can be partly saved. When the Act is held to be in part inconsistent with the
higher law in the Constitution, it can be partly saved if the test of severability is satisfied. The
doctrine of severability was considered by the Supreme Court in RMD Chamarbaugwala v.
Union of India,16 where Venkatarama Aiyyar, J., speaking for the Court observed that “when a
statute is in part void, it will be enforced as against the rest, if that is severable from what is
invalid”. The Court also summarized the rules of construction for determining severability,
essentially from American authorities, into the following seven propositions:
1. The test to be applied is whether the legislature would have enacted the valid part if it had
known that the rest of the statute was invalid.
2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated
from one another, then the invalidity of a portion must result in the invalidity of the Act in its
entirety. On the other hand, if they are so distinct and separate that after striking out what is
invalid, what remains is in itself a complete code independent of the rest, then it will be upheld
notwithstanding that the rest has become unenforceable.
3. Even when the provisions which are valid are distinct and separate from those which are
invalid , if they all form part of a single scheme which is intended to be operative as a whole,
then also the invalidity of a part will result in the failure of the whole.
4. Likewise, when the valid and invalid parts of the statute are independent and do not form part
of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in
substance different from what it was when it emerged out of the legislature, then also it will be
rejected in its entirety
5. The separability of the valid and invalid provisions of a statute does not depend on whether the
law is enacted in the same or different section(s); it is not the form but the substance of the
matter that is material, and that has to be ascertained on an examination of the Act as a whole
and of the setting of the relevant provision therein.

16
AIR 1957 SC 628

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6. If after the invalid portion is expunged from the statute what remains cannot be enforced
without making alterations and modifications therein, then the whole of it must be struck down
as void, as otherwise it will amount to judicial legislation.
7. In determining the legislative intent on the question of separability, it will be legitimate to take
into account the history of the legislation, its object, the title and the preamble to it.
The test is not of textual severability but of substantial severability which permits even
modification of the text in order to achieve severance but “this can only be done when the court
is satisfied that it is affecting no change in the substantial purpose and effect of the impugned
provision”.17

17
DPP V. Hutchinson, (1990) 2 All ER 836

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S.377 – WHETHER CONSTITUTIONAL OR UNCONSTITUTIONAL?

Recently, in the centre of much debate, analysis and academic writing has been the Naz
Foundation case. The case relates to the constitutionality of section 377 of the Indian Penal Code
which provides for “unnatural offences”. The challenge by the petitioner was founded on the
plea that Section 377 IPC, on account of it covering sexual acts between consenting adults in
private infringes the fundamental rights guaranteed under Articles 14, 15, 19 & 21 of the
Constitution of India. The Supreme Court judgment overruled the Delhi High Court verdict
which had held that the section is violative of fundamental rights to the extent it criminalized
consensual penal non-vaginal intercourse between adults.
The Delhi High Court judgment was much criticized by the religious groups who claimed that
religious scriptures went against sodomy and thus, the decision hurts religious feelings Now,
there has been much criticism of the Supreme Court judgment in various sections of the society;
in particular the LGBT community, who describe the provision as draconian in nature and rate
this judgment as superannuated, colonial and a gross violation of their fundamental rights.
However, I have tried to analyze both the verdicts objectively on the touchstone of before-
mentioned rules of construction and their limitations which are well-established to test the
constitutionality of a statute.

Provision under consideration

Section 377 of the Indian Penal Code, 1860

Unnatural offences.-Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.
Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.

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Facts of the case

• The petition was filed by Naz Foundation, an NGO working for the rights of
homosexuals and in the field of HIV/AIDS intervention and prevention.
• The petitioners pled that Section 377 IPC should only apply to non-consensual penile
non-vaginal sex and penal non-vaginal sex involving minors and that consensual sex of
such kind between adults should be saved and excepted from this provision.
• The writ petition18 was dismissed by the Delhi High Court in 2004 on the ground that
there is no cause of action in favour of the petitioner and that such a petition cannot be
entertained to examine the academic challenge to the constitutionality of the legislataion.
• The Supreme Court set aside this order observing that the matter requires consideration
and thus, the matter was remitted to a fresh bench.

18
WP (C) 7455/2001

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Delhi High Court judgment (Naz Foundation v. Government of NCT of Delhi
& Ors.)19

Important Arguments advanced by the petitioner:

• It was submitted that section 377 IPC is based upon traditional Judeo-Christian moral and
ethical standards, which conceive of sex in purely functional terms, i.e., for the purpose of
procreation only. Any non-procreative sexual activity was thus viewed as being "against the
order of nature". So, this legislation criminalizing consensual oral and anal sex is outdated and
has no place in modern society.
• Section 377 IPC serves as the weapon for police abuse; detaining and questioning,
extortion, harassment, forced sex, payment of hush money; and perpetuates negative and
discriminatory beliefs towards same-sex relations and sexuality minorities and thereby cripples
HIV/AIDS prevention efforts. Section 377 IPC thus creates a class of vulnerable people that is
continually victimized by the provision. Section 377 IPC's legislative objective of penalizing
"unnatural sexual acts" has no rational nexus to the classification created between procreative
and non-procreative sexual acts, and is thus violative of Article 14 of the Constitution of India.
• Prohibition of certain private, consensual sexual relations (homosexual) provided by
Section 377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right
to life and liberty under Article 21.
• The expression "sex" as used in Article 15 cannot be read restrictive to "gender" but
includes "sexual orientation" and, thus read, equality on the basis of sexual orientation is implied
in the said fundamental right against discrimination. The petitioner argues that criminalization of
predominantly homosexual activity through Section 377 IPC is discriminatory on the basis of
sexual orientation and, therefore, violative of Article 15.
• Prohibition against homosexuality in Section 377 IPC curtails the basic freedoms
guaranteed under Article 19 (1)(a) (b) (c) & (d); in that, an individual's ability to make personal
statement about one's sexual preferences, right of association/assembly and right to move freely
so as to engage in homosexual conduct are restricted and curtailed.

Arguments advanced by the respondent

19
WP(C) No.7455/2001; Date of decision: 2nd July, 2009

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 • It was submitted that section 377 has been generally invoked in cases of allegation of
child sexual abuse and for complementing lacunae in the rape laws and not mere homosexuality.
• Reference has been made to 42nd report of the Commission wherein it was observed that
Indian society by and large disapproved of homosexuality, which disapproval was strong enough
to justify it being treated as a criminal offence even where the adults indulge in it in private.
• Article 19(2) expressly permits imposition of restrictions in the interest of decency and
morality.
• Section 377 IPC prevents HIV by discouraging rampant homosexuality.

Interpretation of provision by Delhi High Court and the Judgment

• Extensive reference was made to foreign judgments20 and writings21 and international
human rights covenants (like Article 12 UDHR dealing with right to privacy) while deciding the
case in favour of constitutionality of section 377. It is to be noted that sobered use of foreign
decisions of countries following same system of jurisprudence as ours and rendered on statutes in
pari materia has been permitted by practice in Indian Courts. Foreign decisions are a relevant
external aid to construction.
• Court also referred the 172nd report of the Law Commission of India, focused on the
need to review the sexual offences laws in the light of increased incidents of custodial rape and
crime of sexual abuse against youngsters, and inter alia, recommending deletion of the section
377 IPC by effecting the recommended amendments in Sections 375 to 376E of IPC.
• Court also took note of the statement of the Solicitor General of India appearing on
behalf of India at the Periodic Review before the United Nations Human Rights Council. He
stated: "Around the early 19th Century, you probably know that in England they frowned on
homosexuality, and therefore there are historical reports that various people came to India to take
advantage of its more liberal atmosphere with regard to different kinds of sexual conduct. ... As a
result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they
inserted s.377 in the Indian Penal Code, which brought in the concept of sexual offences against
the order of nature. Now in India we didn't have this concept of something being ‘against the

20
Planned parenthood of Southeastern Pa v. Casey, 505 US 833 where Court confirmed constitutional protection to
personal decisions relating to marriage, procreation, contraception and family relationships
21
Michael O'Flaherty and John Fisher, "Sexual Orientation, Gender Identity and International Human Rights Law:
Contextualising the Yogyakarta Principles" - Human Rights Law Review 8:2(2008), 207-248]

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order of nature’. It was essentially a Western concept which has remained over the years.” It is
clear that Section 377 IPC, whatever its present pragmatic application, was not enacted keeping
in mind instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a
conception of sexual morality specific to Victorian era. Thus, we see that the court has taken
cognizance of the surrounding circumstances and history of the legislation to identify the
mischief. Thus, another external aid of construction put to use.
• The nature of the provision of Section 377 IPC and its purpose is to criminalize private
conduct of consenting adults which causes no harm to anyone else. It has no other purpose than
to criminalize conduct which fails to conform with the moral or religious views of a section of
society. It is well established that if the objective of a legislation is irrational, unjust and unfair,
necessarily classification will have to be held as unreasonable. Here, the discrimination severely
affects the rights and interests of homosexuals and deeply impairs their dignity. The inevitable
conclusion is that the discrimination caused to LGBT community is unfair and unreasonable and,
therefore, in breach of Article 14 of the Constitution of India.
• Court held that ‘sexual orientation’ is a ground analogous to sex in Article 1522. Thus,
discrimination on the basis of sexual orientation cannot be permitted by Article 15. Thus, section
377 was found violative of Article 15. We see that court has applied golden rule of interpretation
to avoid injustice which would not be avoided if a mechanical interpretation of the language is
done.
• Court relied on the case of Anuj Garg v. Hotel Association of India23 and the principles
laid down in this case. In that case, the Act in question was also a pre- constitutional legislation
and although it was saved in terms of Article 372 of the Constitution, challenge to its validity on
the touchstone of Articles 14, 15 and 19 of the Constitution of India, was held as permissible in
law. There is thus no presumption of constitutionality of a colonial legislation. Therefore, though
the statute could have been held to be a valid piece of legislation keeping in view the societal
condition of those times, but with the changes occurring therein both in the domestic as also
international arena, such a law can also be declared invalid.

22
Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. – (1) The State
shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
23
(2008) 3 SCC 1

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 • The Court discussed two distinct concepts - "strict scrutiny" borrowed from the US
jurisprudence, and "proportionality review" which has its origin in the jurisprudence of Canadian
and European courts. The Court held that the interference prescribed by the State for pursuing
the ends of protection should be proportionate to the legitimate aims. The standard for judging
the proportionality should be a standard capable of being called reasonable in a modern
democratic society. It is for the court to review that the majoritarian impulses rooted in moralistic
tradition do not impinge upon individual autonomy. This is the backdrop of deeper judicial
scrutiny of such legislations world over." The Court held that Article 15's prohibition of sex
discrimination implies the right to autonomy and self- determination, which places emphasis on
individual choice. Therefore, a measure that disadvantages a vulnerable group defined on the
basis of a characteristic that relates to personal autonomy must be subject to strict scrutiny.
• Court opined that there is one and only one ground for declaring an Act of the legislature
(or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the
Constitution in so evident a manner as to leave no manner of doubt. The courts are obliged in
discharging their own sovereign jurisdiction, to give considerably less deference to the
legislature in such a case.
• Court went on to discuss and apply the principle of severability. The prayer of the
petitioner was to declare Section 377 IPC as unconstitutional to the extent the said provision
affects private sexual acts between consenting adults in private so that applicability of section
377 IPC continues to cases involving non-consensual sex.
Two kinds of severability were discussed: (a) a statutory provision may contain distinct and
separate words dealing with distinct and separate topics. The first sub-section may be valid and
the second void. In such a case, the Court may delete the second sub-section by treating it as
severable.
(b) There is however another kind of severability namely severability in application, or
severability in enforcement. The question of this other kind of severability arises when an
impugned provision is one indivisible whole. Here severability cannot be applied by deleting an
offending provision and leaving the rest standing.
Court thus applied this second kind of severability to the provision and declared that Section 377
IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21,
14 and 15 of the Constitution. The provisions of Section 377 IPC was held to continue to govern

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non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. This
clarification was to be hold till, of course, Parliament chooses to amend the law to effectuate the
recommendation of the Law Commission of India in its 172nd Report.

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Supreme Court Judgment (Suresh Kumar Koushal & Anr. vs. Naz Foundation
& Ors.)24

Arguments advanced by the appellant

• It was contended that that the writ petition filed by respondent no.1 did not contain
foundational facts necessary for pronouncing upon constitutionality of a statutory provision and
showing that Section 377 had been used for prosecution of homosexuals as a class and that few
affidavits and unverified reports of some NGOs relied upon by respondent no.1 could not supply
basis for recording a finding that homosexuals were being singled out for a discriminatory
treatment.
• It was submitted that the right to privacy can be curtailed by following due process of law
and the Code of Criminal Procedure prescribes a fair procedure, which is required to be followed
before any person charged of committing an offence under Section 377 IPC can be punished.
The right to privacy does not include the right to commit any offence as defined under Section
377 IPC or any other section.
• It was further submitted that the section does not create a class and applies to both man
and woman if they indulge in carnal intercourse against the order of nature. Learned senior
counsel argued that if the view expressed by the High Court is taken to its logical conclusion,
any provision could be declared to be violative of Article 14. Therefore, the finding of the High
Court that this law offended Article 14 as it targets a particular community is without any basis.
• The counsel on behalf of the appellant argued that if the language of the section was
plain, there was no possibility of severing or reading it down. And so long as the law stands on
the statute book, there was a constitutional presumption in its favour. The counsel further
emphasized that mere possibility of abuse of any particular provision cannot be a ground for
declaring it unconstitutional.

Arguments on behalf of respondent

• Interpretation of Section 377 is not in consonance with the scheme of the IPC, with
established principles of interpretation and with the changing nature of society. It was submitted
that when the same act is committed by 2 consenting males, and not one, it cannot be regarded as

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CIVIL APPEAL NO.10979 OF 2013 (Arising out of SLP(C) NO.873 of 2010)

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an offence when- (i) The act is done in private; (ii) The act is not in the nature of sexual assault,
causing harm to one of the two individuals indulging in it; and (iii) No force or coercion is used
since there is mutual consent.
• The respondent further took help of the Heading of the Chapter under which the
provision has been placed. It is placed at the end of the Chapter XVI (Of Offences affecting the
human body) and not in Chapter XIV (Of Offences affecting the Public Health, Safety,
Convenience, Decency and Morals). Thus, it was contended by the respondent that the provision
should be construed associated with sexual assault and consensual acts should not be
criminalized under this or under the garb of morality. Chapter Headings and sub headings were
said to provide a guide to interpreting the scope and ambit of Section 377.
The view is now settled that the Headings or Titles prefixed to sections or group of sections can
be referred to in construing an Act.25
• The appellants contended that Section 377 was too broadly phrased as it may include: (1)
Carnal intercourse between husband and wife; (2) Carnal intercourse between man and woman
for pleasure without the possibility of conception of a human being; (3) Use of contraceptives
between man and woman; (4) Anal sex between husband and wife; (5) Consenting carnal
intercourse between man and man; (6) Non consenting carnal intercourse between man and man;
(7) Carnal intercourse with a child with or without consent. The Section does not, however, lay
down any principle or policy for exercise of discretion as to which of all these cases he may
investigate. It is silent on whether the offence can be committed taking within its ambit, the most
private of places, the home. Though facially neutral, an analysis of the judgments shows that
heterosexual couples have been practically excluded from the ambit of the section and
homosexual men are targeted by virtue of their association with the proscribed acts.
• That the history of unnatural offences against the order of nature and their enforcement in
India during the Mogul time, British time and post independence, show that the concept was
introduced by the British and there was no law criminalizing such acts in India. It is based on
Judeo- Christian moral and ethical standards which conceive of sex on purely functional terms,
that is, for procreation. Post independence the section remained on the statute books and is now
seen as part of Indian values and morals.

25
Bhinka v. Charan Singh, AIR 1959 SC 960, p.966

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 • It was submitted that section 377 distinguishes between carnal intercourse which is
against the order of nature and not against the order of nature. This classification is
unintelligible. It is arbitrary and not scientific. The object of the classification which seeks to
enforce Victorian notion of sexual morality which included only procreative sex is unreasonable
as condemnation of non procreative sex is no longer a legitimate state object.

Interpretation of the provision by the Supreme Court and the Judgment

• The Apex Court much emphasized on the doctrine of presumption of constitutionality,
even in case of a pre-constitutional statute. Court held that there is nothing to suggest that this
principle would not apply to pre-Constitutional laws which have been adopted by the Parliament
and used with or without amendment. If no amendment is made to a particular law it may
represent a decision that the Legislature has taken to leave the law as it is and this decision is no
different from a decision to amend and change the law or enact a new law. The 172nd Law
Commission Report specifically recommended deletion of that section and the issue has
repeatedly come up for debate. However, the Legislature has chosen not to amend the law or
revisit it. This shows that Parliament, which is undisputedly the representative body of the people
of India has not thought it proper to delete the provision. Court further observed that: “unless a
clear constitutional violation is proved, this Court is not empowered to strike down a law merely
by virtue of its falling into disuse or the perception of the society having changed as regards the
legitimacy of its purpose and its need.
• Court opined that whether a law conferring discretionary powers on an administrative
authority is constitutionally valid or not should not be determined on the assumption that such
authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of
power given by law does occur; but the validity of the law cannot be contested because of such
an apprehension26. That 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. Respondent No.1 attacked Section 377 IPC on the

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Sushil Kumar Sharma v. Union of India and Ors. (2005) 6 SCC 281

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ground that the same has been used to perpetrate harassment, blackmail and torture on certain
persons, especially those belonging to the LGBT community. Court opined that 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.
• Court observed that 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 if in the trial
conducted in accordance with the provisions of the Code of Criminal Procedure and other
statutes of the same family the person is found guilty. Therefore, the High Court was not
considered to be right in declaring Section 377 IPC ultra vires.
• Court further stated that only a miniscule fraction of the country’s population constitutes
lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons
have been prosecuted (as per the reported orders) 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.
• Court also dismissed the “blindfolded” use of foreign judgments by the Delhi High Court.
It stated that though these judgments shed considerable light on various aspects of this right and
are informative in relation to the plight of sexual minorities, they cannot be applied blindfolded
for deciding the constitutionality of the law enacted by the Indian legislature.
• Court held that Section 377 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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CONCLUSION

Since the presumption of constitutionality rests on the assumption that it is unnecessary as well
as improper for courts to review the wisdom or desirability of legislation because bad laws may
be repealed through the political process, employment of the presumption loses its fundamental
justification when the persons or groups adversely affected by a law find themselves denied
effective access to that process.
The presumption of Constitutionality, in most of the cases, leaves the minor group of people
whose interests have been infringed, at the mercy of an intolerant majority and stringent policies
of the court.
In the Naz Foundation Case, the Apex Court has shown exemplary judicial restraint after a very
long time. This was probably the reason that the judgment shocked many. However, this judicial
restraint seems to be coupled with an ignorance of minority interests and rights. The fact that
Court made an observation that the community is miniscule and the reported cases are far and
few itself seems unfair and leaves them at the mercy of the majority.
However, it is observed that Delhi High Court gave weightage to the limitation of the rule of
construction as was discussed before i.e., violation of fundamental rights, whereas the Supreme
Court tilted in favour of the presumption of Constitutionality of a provision.

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REFERENCES

Books
• Justice Singh G.P, “INTERPRETATION OF STATUTES”, LexisNexis Butterworths
Co, 2010.
• Justice Karim Fazal, “JUDICIAL REVIEW OF PUBLIC ACTIONS”, Volume 1,
Universal Law Publishing Co.

• P. St. Langan J., “MAXWELL ON INTERPRETATION OF STATUTES”, 12th

edition, LexisNexis Butterworths India.

Bare Acts
• Indian Penal Code, 1860

• The Constitution of India

Websites
www.manupatra.com

www.indiankanoon.org

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