Suresh Kumar Kousahl & Anr. v. Naz Foundation & Ors.

Read this judgement to find out the Supreme Court's stance on Section 377 in the year 2013 and how the same was in stark contrast to its recent judgement in the Navtej Singh Johar case.
CITATIONCivil Appeal 10972 of 2013
COURTSupreme Court of India
JUDGES/CORAMJustice G.S. Singhvi, Justice S.J. Mukhopadhyay
DATE OF JUDGEMENT11.12.2013

Introduction

The case concerns the constitutionality of Section 377 of the Indian Penal Code which created an offence of voluntarily having carnal intercourse “against the order of nature” with any man, woman or animal, punishable by up to ten years imprisonment or a fine. Although the provision appears to be neutral on its face, it was argued to have a discriminatory effect on LGBT persons, particularly homosexual men.

Facts

The facts of the case are as follows: In 2001 the NAZ Foundation – a non-governmental organization working in the field of HIV/AIDS intervention and prevention – filed a writ petition before the Delhi High Court seeking a declaration that Section 377, to the extent that it penalized sexual acts in private between consenting adults, violated the provisions of Indian Constitution, specifically, Articles 14, 15, 19(1) (a)-(d) and 21.

In the year 2009, the High Court’s decision was in favor of the NAZ Foundation and it accepted the contentions that consensual same-sex sexual relations between adults should be decriminalized, holding that such criminalization was in contravention of the Constitutional rights to life and personal liberty, equality before the law and non-discrimination. In reaching its decision, the court placed a great deal of emphasis on domestic judgments, the court also relied on comparative law in reaching its decision, referring to judgments from various foreign jurisdictions. 

In its reasoning, the High Court stated that Section 377 “grossly violates [homosexual individuals’] right to privacy and liberty embodied in Article 21 insofar as it criminalizes consensual acts between adults in private”. The decision was appealed to the Supreme Court and attracted a large number of interveners. Interveners supporting the Appellants included organizations and individuals (Suresh Kumar Koushal) who have stated that they had an interest in protecting the moral, cultural and religious values of Indian society.

Issues

The main issues in the case were:

  1. Whether or not Section 377 of I. P. C violates any of the provisions of the Part III of the Constitution of India and therefore whether it is constitutionally valid.
  2. Whether or not Section 377, in so far it criminalizes consensual sexual activity of two adults of the same sex in private, is violating Article 21 guaranteed by the Constitution of India.
  3. Whether or not the High Court was justified in entertaining the challenge to Section 377.
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Summary of court decision and judgment

The Bench deciding the case allowed the appeal and overturned the High Court’s previous decision, finding its declaration to be “legally unsustainable”. The Supreme Court ultimately found that Section 377 IPC does not violate the Constitution and dismissed the writ petition filed by the Respondents.

The Supreme Court acknowledged that there is a presumption of constitutionality in favour of all laws, including pre-constitutional laws, as the Parliament is deemed to act for the benefit of the people. With regard to Section 377 the court observed that whilst it and the High Court were able to review the constitutionality of the law, and were able to strike it down to the extent of its inconsistency with the Constitution, the analysis must be guided by the presumption of constitutionality and the courts must exercise self-restraint.

The court concluded that unless a clear constitutional violation was proved, the court was not empowered to invalidate the law. The court stated that in light of the legislative history of Section 377, it would still apply to same-sex couples irrespective of age and consent. The Court nevertheless maintained that – “Section 377 does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation”.

In determining the application of Article 14 of the Constitution to the constitutionality of Section 377, the Supreme Court quoted from Re: Special Courts Bill[1], which set out the scope of Article 14, including the principle that legislation need not treat all people exactly the same, but that “all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.” Thereafter the court held that:

Those who indulge in carnal intercourse in the ordinary course and those who indulge in canal intercourse against the order of nature constitute different classes [emphasis added] and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification”.

The court also regarded the discriminatory treatment complained of by the Naz Foundation as a result of Section 377 as being neither mandated nor condoned by the provision itself and the fact that the police authorities and others misuse Section 377 was not a reflection of the vires of the provision but instead may simply be a relevant factor for Parliament to consider whilst judging whether to amend Section 377.

In assessing the High Court’s ruling that Section 377 violated the right to privacy, autonomy and dignity, the Supreme Court spent little time analyzing the application of Article 21 to Section 377, instead criticizing the High Court for relying too extensively upon judgments from other jurisdictions in its anxiety to protect the “so-called rights of LGBT persons”. It concluded that “Section 377 does not suffer from the vice of unconstitutionality” with no further elaboration.

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Analysis

The reasoning penned in this case has be tritely noted and referred in many other cases before and after its effect. Though for a long time the Indian Courts have assumed the decision of this case i.e. re-criminalisation of carnal intercourse against the order of nature covered under section 377; to be appropriate without opining that the Indian Constitution is a vibrant, living document and its wide insurances must be alterably translated to include new circumstances and tests.

The private, consensual sexual relations are protected under the right to personal liberty under Article 21 under the privacy and dignity claim. While considering the issue of Article 21, The High Court had sketched out the broadened extent of the right to life and liberty which also incorporates right to protection of one’s dignity, autonomy and privacy, the Division Bench referred to Indian and foreign judgments, the Yogyakarta Principles – identifying with sexuality as a structure of personality and the worldwide patterns in the assurance of security and nobility privileges of gay people.

In the Indian Constitution, the right to live with dignity and the right of privacy are recognized as dimensions of Article 21; High Court noted that Section 377 of IPC denies a person’s dignity and criminalizes his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.

In Maneka Gandhi v Union of India[2], the Court reiterated that the term ‘personal liberty’ is of “the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man.” Sexual orientation and sexual activity is a matter of one’s privacy. In the same case, the court went on to explain the intention of the founding fathers regarding regulation of Article 21 and said “Thus expanded and read for interpretative purposes, Article 21 clearly brings out the implication, that the Founding Fathers recognized the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by law.”

However, in the above case, Section 377 is used arbitrarily and it classifies between procreative sexual activities and non procreative sexual activities which show no compelling State interest to make such a law to regulate and deny such an important fundamental right. The erroneous impact of the Suresh Kumar Koushal Case is highlighted by analysing the recent case of Navtej Singh Johar & Ors. Vs. Union of India through Secretary Ministry of Law and Justice[3] which is a landmark decision of the Supreme Court of India decided on 6th of September 2018 that decriminalized all consensual sex among adults in private, including homosexual sex, thereby overruled the judgment of Suresh vs. Naz. The 2018 case happened to be the first case where the petitioners had argued that they had all been directly aggrieved because of Section 377 alleging it to be a direct violation of fundamental rights.

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The court found that the criminalization of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice Dipak Misra pronounced that the court found that “criminalizing carnal intercourse” to be “irrational, arbitrary and manifestly unconstitutional”.

The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India. This included “the choice of who to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation”. The judgment also made note that LGBTs are entitled to an equal citizenship and protection under law, without discrimination.

Conclusion

Popular morality is distinct from constitutional morality, as derived from constitutional values, the popular morality is based on shifting notions of right and wrong and cannot be made a sole standard for passing any test of determining public interest and if there is any type of morality that can pass the test of compelling state interest, it should be constitutional morality.

Our Constitution provides for Equality and Freedoms to all its citizens and this equality cannot be denied to any individual who carries a different or unnatural way of life; provided such lifestyle doesn’t infringe the guaranteed rights of other citizens. Subject to the findings I see it appropriate to state that the Supreme Court has dismissed a huge number of cases in a past based on an erroneous rationale result of series of blunders penned by the Judiciary. This also includes the incorrect judgment of the Supreme Court in this case (Suresh vs. Naz Foundation).


[1] 1987 (1979) 1 SCC 380.

[2] AIR 1978 SC 597.

[3] W. P. (Crl.) No. 76 of 2016 (Supreme Court of India).