CASE NAME	Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1
CITATION	AIR 2014 SUPREME COURT 563, 2014 AIR SCW 78, 2014 (1) ADR 817, (2014) 84 ALLCRIC 774, (2014) 5 CAL HN 110, (2014) 1 KCCR 23
COURT	Supreme Court of India
BENCH	Hon’ble Justice Sudhansu Jyoti Mukhopadhayaand Justice G.S. Singhvi
APPELLANT	Suresh Kumar Koushal and Another
RESPONDENT	Naz Foundation and Others
DECIDED ON	11th December 2013

INTRODUCTION

The Supreme Court of India ruled on December 11, 2013. Suresh Kumar Koushal & Others v. NAZ Foundation & Others reversed the Delhi High Court’s decision and upheld the validity of Section 377[2] of the Indian Penal Code, 1860 (IPC), rejecting the respondents’ claims that the following section violates papers 14, 15, 19(1) (a)-(d), and 21 of the Constitution of India, 1950 (hereinafter the Constitution). These requests are directed against the ruling dated July 2, 2009, by which the Division Bench of the Delhi High Court granted the writ solicitation brought by NAZ Foundation – replier No. 1 herein, by way of Public Interest Litigation (PIL), challenging the indigenous validity of Section 377 of the IPC. Replier No. 1 is a non-governmental organization (NGO) registered under the Societies Registration Act of 1860 that works in the field of HIV/AIDS intervention and prevention. Its work has focused on “Men who have coitus with Men (MSM) or homosexuals or gays” in accordance with integrationist policy. 

Professing that its sweats have been oppressively bloodied by the discriminative stations displayed by state authorities towards sexual nonages, MSM, lesbians, and transgender individuals and that unless respect and quality are restored to these sexual nonages by repealing discriminatory laws such as Section 377 IPC, it will not be possible to help HIV/AIDS. NAZ Foundation filed WP(C)No.7455/2001 before the Delhi High Court impleading the Government of NCT of Delhi, Delhi Commissioner of Police, Delhi State Aids Control Society, National Aids Control Organization (NACO), and Union of India through Ministry of Home Affairs and Ministry of Health and Family Welfare, and supplicated for entitlement of a protestation that Section 377 of IPC, to the extent it’s applicable to and penalizes sexual acts in private between subscribers Replier No. 1 further requested an indefinite order prohibiting the Government of the NCT of Delhi and the Commissioner of Police, Delhi from enforcing the provisions of Section 377 of the IPC in relation to sexual activities committed in private between consenting adults.

FACTS OF THE CASE

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 protestation that Section 377, to the extent that it penalized sexual acts in private between subscribing grown-ups, violated the India Constitution, specifically Articles 14 (equivalency before the law), 15 (non-discrimination), 19(1)(a)-(d) (freedom of speech, assembly, ass The Naz Foundation stated that the rule was discriminatory since it was generally applied to homosexual conduct, criminalizing exertion that homosexual men and women practiced more frequently. This was thought to imperil HIV/AIDS prevention efforts by forcing homosexual men and other sexual minorities underground. 

It was also contended that while private consensual relations were protected under Article 21 of the Constitution, Section 377 was illegal because there was no compelling governmental interest to warrant the restriction of abecedarian freedom. The Naz Foundation also claimed that Section 377 violated Composition 14 on two grounds: first, it was unreasonable and arbitrary to criminalize non-procreative sexual relations, and second, the legislative ideal of penalizing “unnatural” acts had no rational connection to the distinction between procreative and non-procreative sexual acts. In 2004, the High Court denied the writ request on the basis that only intellectual problems were offered, which the court could not address. It performed the same thing in connection to a subsequent review solicitation. The NAZ Foundation disputed both orders, and the writ solicitation was remitted for a new determination in 2006. In 2009, the High Court ruled in favor of the NAZ Foundation, accepting its arguments.

ISSUES RAISED

• Whether Section 377 contradict any of the provisions of Part III of the Indian Constitution, and hence whether it is inherently legal or not? 
• Whether Section 377, which currently criminalizes consensual sexual exertion of two adults in private, violates Composition 21 (Right to Life and Particular Liberty) of the Indian Constitution?

ARGUMENTS FROM BOTH SIDES

Arguments on behalf of the appellant 

• The High Court made a grave error in ruling Section 377 to violate Articles 14, 15, and 21 of the Constitution because it ignored the absence of any foundational data in the Respondent’s writ, which is required for determining the validity of any statutory provision. The talkie evidence provided in its place was not a basis for assuming that homosexuals were singled out for discriminatory treatment under the law. 
• The figures included in the Respondent’s solicitation were insufficient to raise the possibility that Section 377 hurt HIV/AIDS control and that decriminalization would reduce the frequency of such cases. The petitioners further claimed that the data given was falsified and deceptive. 
• Regardless of gender, Section 377 includes consensual acts of carnal intercourse. It is absolutely gender-neutral. No bracket has been created because the statute does not target a specific class, rendering the High Court’s conclusion that it violated Composition 14 invalid.
  Section 377 does not violate the right to sequestration and quality guaranteed by Composition 21, and the right to sequestration does not include the right to commit any offense as described by Section 377 or any other section.

Arguments on behalf of the respondent

The Court should consider shifting values and Section 377’s temporal reasonableness. The Constitution is a dynamic text that should adapt to new problems and difficulties as they arise. The status of Indian society is rapidly changing, and activities that were previously considered offenses should no longer be used to correct them. 

The right to equivalence under Composition 14 and the right to quality and sequestration under Composition 21 are inextricably linked and must be met before other indigenous rights can be fully realized. 

Section 294[8] distinguishes between private and public immoral acts. It should be interpreted in light of Indigenous vittles, which include the right to be alone.
Section 377 is impermissibly imprecise, delegated policymaking powers to the police, and leads to the violation and abuse of LGBT people’s rights. Petitioners provided evidence of widespread misuse and opportunity (citing judicial findings and NGO reports). 

Section 377 does not establish any concept or procedure for using discretion in determining which of the cases falling within the astronomically written law may be investigated. It is unclear whether the offense can be committed within the home.

JUDGMENT

The Supreme Court of India concluded that Section 377 IPC did not violate the Constitution, dismissing the Repliers’ writ suit. The court agreed that it and the High Court had the authority to declare any statute to be null and void, whether it was enacted before or after the Constitution was adopted. However, it stated that there is a presumption of constitutionality in favor of all legislation, including pre-constitutional ones, because Parliament is supposed to act in the best interests of the people. The idea of severability allows unconstitutional sections of legislation to be separated from the underlying rudiments of the law in question while the remainder is retained.

The court stated that while it and the High Court were qualified to evaluate the legality of the statute and strike it down to the degree of its conflict with the Constitution, the analysis must be guided by the presumption of constitutionality, and the courts must exercise moderation. The court decided that unless a blatant indigenous violation was proven, the court lacked the authority to overturn the law.

The court called attention to the Indian Penal Code’s numerous amendments since its repeal in 1860, totaling around 30 amendments. The court cited numerous Section 377-related cases dating back to the nineteenth century, saying that no consistent rule could be derived from them to identify conduct that would fall under Section 377.

The Supreme Court stated that the party had “miserably failed” to provide details about state agencies’ discriminatory treatment of sexual minors and their subsequent denial of fundamental moral rights. The court also cited Re Special Courts Bill, 1987(1979) 1 SCC 380, which established the scope of Composition 14, including the notion that legislation should treat all people equally in terms of benefits given and arrears assessed.

CONCLUSION

In reviewing the reading down of Section 377 by the High Court, the Supreme Court stated that the High Court had overlooked the fact that a minuscule part of the country’s population constitutes lesbians, gays, bisexuals, or transgenders and that over the last 150 times, less than 200 people had been fulfilled under Section 377, concluding from this that this cannot be made a sound basis for declaring that section ultra vires the vittles of Articles 14, 15, and 21 of the Co The court also found that the discriminatory treatment complained of by the Naz Foundation as a result of Section 377 was neither commanded nor blinked by the provision itself and that the fact that police authorities and others misused Section 377 was not a reflection of the provision’s viability, but rather an applicable factor for Parliament to consider when deciding whether to amend it. 

Concerning the operation of Composition 21 of the Constitution, the Supreme Court noted that the law must be adeptly enacted while also being just, fair, and reasonable, giving birth to a variety of licit state interests and the idea of proportionality. The court clearly said that Composition 21 acknowledged the right to a high-quality life. In evaluating the High Court’s ruling that Section 377 violated the right to sequestration, autonomy, and quality, the Supreme Court spent little time analyzing the operation of Composition 21 to Section 377, instead criticizing the High Court for relying too heavily on judgments from other authorities in its desire to cover the “so-called rights of LGBT persons.” It found that “Section 377 does not suffer from the vice of iniquity” without providing any further details.