2.

Suresh Kumar Koushal & Anr vs Naz Foundation & Ors on 11 December, 2013

Facts-

1. Appeals directed against order dated 2.7.2009 by which the Division Bench of the
Delhi High Court allowed the writ petition filed by NAZ Foundation – respondent
No.1 herein, by way of Public Interest Litigation (PIL) challenging the constitutional
validity of Section 377 of the Indian Penal Code, 1860.

Jurisdiction-

1. The High Court and the Supreme Court are empowered to declare as void any pre-
Constitutional law to the extent of its inconsistency with the Constitution and any law
enacted post the enactment of the Constitution to the extent that it takes away or
abridges the rights conferred by Part III of the Constitution. In fact a constitutional
duty has been cast upon the Court to test the laws of the land on the touchstone of the
Constitution and provide appropriate remedy if and when called upon to do so. Seen
in this light the power of judicial review over legislations is plenary. However,
keeping in mind the importance of separation of powers and out of a sense of
deference to the value of democracy that parliamentary acts embody, self-restraint has
been exercised by the judiciary when dealing with challenges to the constitutionality
of laws. This form of restraint has manifested itself in the principle of presumption of
constitutionality. (Para 26)
2. Applying these principles to the specific case, while the court has the power to review
the constitutionality of the law, it should exercise self-restraint and be guided by the
presumption of constitutionality. Despite debates, recommendations for deletion, and
changes in related laws, the Legislature has not amended or revisited Section 377.
Unless a clear constitutional violation is proven, the court is not empowered to strike
down a law merely due to disuse or changing societal perceptions about its legitimacy
and need. (Para 32)

Analysis and Decision-

Historical Background of Section 377 IPC:

Enacted in 1860, the Indian Penal Code (IPC) and Section 377 were products of the
Legislative Council, receiving the Governor General's assent on October 6, 1860. Over time,
interpretations of acts falling under Section 377 have evolved, transitioning from non-
procreative to imitative of sexual intercourse and eventually encompassing sexual perversity.

Legal Precedents and Definitions:

Various judgments, including R. V. Jacobs, Govindarajula In re, and Khanu v. Emperor,

illustrate the changing understanding of carnal intercourse against the order of nature. These
cases provide different perspectives on what constitutes an offense under Section 377.

Evolution of Interpretation:

The evolution of interpretations is highlighted, noting cases where acts like inserting the
penis in the mouth or having intercourse between the thighs were considered offenses under
Section 377. The changing societal views on sexual acts are reflected in the legal
interpretations over time.

Case Examples:

Specific cases, such as Khandu v. Emperor and Lohana Vasantlal Devchand v. The State,
illustrate instances where courts examined acts like carnal intercourse with a bullock through
the nose or the insertion of the male organ into the mouth. The criteria for determining an
offense under Section 377 include penetration, reciprocity, and acts against the order of
nature.

Contemporary Views on Section 377:

Cases of later years are cited, such as Fazal Rab Choudhary v. State of Bihar (1982), where
the court reduced a sentence based on the nature of the offense. The relevance of penetration
and the broad scope of acts covered by Section 377 are emphasized.

Uniform Test for Interpretation:

Despite various cases, the court notes the difficulty in establishing a uniform test for
classifying acts as "carnal intercourse against the order of nature." The absence of a
consistent approach in non-consensual and coercive situations raises uncertainty about how
the court might rule in cases of consensual intercourse between adults.

Section 377 IPC: Age and Consent:

The court asserts that Section 377 applies irrespective of age and consent, regulating sexual
conduct regardless of gender identity and orientation. It emphasizes that the section does not
criminalize a particular identity or orientation but rather identifies specific acts that constitute
an offense.

Summary of Legal Precedents and Challenge to Section 377 IPC:

The court discusses the High Court's justification for entertaining a challenge to Section 377
IPC without a factual foundation. Precedents from Southern Petrochemical Industries and
Seema Silk and Sarees stress the importance of factual foundations for challenging legal
provisions. The writ petition by respondent No.1 lacked detailed information on
discriminatory incidents against sexual minorities, making it insufficient to support the
challenge to Section 377 IPC. The Court emphasizes the need for a rational classification in
laws and criticizes the High Court's decision to declare Section 377 ultra vires Articles 14,
15, and 21.

Summary of Due Process and Privacy in Constitutional Rights:

The court addresses the violation of Article 21 of the Constitution and the incorporation of
substantive due process through Articles 14, 21, and 19. It discusses the right to privacy,
derived from international declarations and Article 21, encompassing privacy, dignity, and
autonomy. Various cases, including Kharak Singh, Gobind, Suchita Srivastava, and Mr. X v.
Hospital Z, highlight the scope and importance of privacy, individual autonomy, and the right
to live with dignity under Article 21.
Summary of Respondent No. 1's Challenge to Section 377 IPC:

Respondent No. 1 challenged Section 377 IPC, arguing it led to harassment and
discrimination, especially against the LGBT community. The court rejects the argument that
misuse of the section by authorities affects its validity, emphasizing that abuse doesn't per se
invalidate a law. The judgment cautions against blindly applying foreign legal principles and
concludes that Section 377 IPC is not unconstitutional. The appeals are allowed, the
impugned order is set aside, and respondent No. 1's writ petition is dismissed, leaving the
legislature free to consider changes.

Quoted Conclusion of the Judgement-

56. While parting with the case, we would like to make it clear that this Court has merely
pronounced on the correctness of the view taken by the Delhi High Court on the
constitutionality of Section 377 IPC and found that the said section does not suffer from any
constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free
to consider the desirability and propriety of deleting Section 377 IPC from the statute book or
amend the same as per the suggestion made by the Attorney General.