Supreme Court of India
SURESH KUMAR KOUSHAL AND ANOTHERversusNAZ FOUNDATION AND OTHERS
- Citation
- 2013 INSC 823
- Decided
- 11 December 2013
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
Section 377 of the Indian Penal Code does not suffer from any constitutional infirmity and is not violative of Articles 14, 15 or 21 of the Constitution.
Summary
The Supreme Court examined the constitutional validity of Section 377 of the Indian Penal Code, which criminalises "carnal intercourse against the order of nature". The petitioners argued that the provision violated Articles 14, 15 and 21 of the Constitution by arbitrarily classifying "unnatural" acts, being vague, and infringing the right to privacy, dignity and autonomy of consenting adults, especially LGBT persons. The Court applied the presumption of constitutionality, the doctrines of severability and reading down, and held that the provision does not target a specific class, is not vague to the point of unconstitutionality, and that any misuse by authorities does not invalidate the law. Consequently, Section 377 was held to be constitutionally valid. The appeal was allowed, setting aside the Delhi High Court's declaration and dismissing the writ petition.
Issues considered
- The constitutionality of Section 377 IPC under Article 14 (equality) – whether it is arbitrary or irrational in classification
- The constitutionality of Section 377 IPC under Article 15 – whether it discriminates on the basis of sexual orientation
- The constitutionality of Section 377 IPC under Article 21 – whether it infringes the right to privacy, dignity and autonomy
- Whether Section 377 is vague and indeterminate, rendering it unconstitutional
- Whether the High Court could read down or strike down Section 377 on constitutional grounds
- The applicability of the presumption of constitutionality to pre‑Constitutional statutes like the IPC
- The relevance of legislative intent, historical context and the 172nd Law Commission Report in interpreting Section 377
- The effect of alleged police misuse of the provision on its constitutional validity
Legislation cited
- Constitution of Indias. 13, s. 14, s. 15, s. 19, s. 21, s. 226, s. 32, s. 372
- Indian Penal Code, 1860s. 377
- Protection of Human Rights Act, 1993s. 2
Subjects
Section 377Indian Penal CodeLGBT rightsPrivacyArticle 21Article 14Article 15Constitutional validityVaguenessArbitrarinessReading downSeverabilityJudicial reviewSexual orientationHIV/AIDS
Judgment
[2013) 17 S.C.R. 116
A SURESH KUMAR KOUSHAL AND ANOTHER
v.
NAZ FOUNDATION AND OTHERS
(Civil Appeal N0.10972 of 2013)
DECEMBER 11, 2013
B
[G.S. SINGHVI AND SUDHANSU
JYOTI MUKHOPADHAYA, JJ.]
Penal Code, 1860:
c
s. 377 - Constitutional validity of - Whether suffers from
the vice of arbitrariness and irrational classification and
whether violative of Art. 21 - To the extent, it penalizes sexual
acts in private between consenting adults - Held: s. 377 /PC
D does not suffer from the vice of unconstitutionality - 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 - People falling in the later
category cannot claim that s. 37.7 suffers from vice of
E arbitrariness and irrational classification - s. 377 does not
criminalise a particular people or identity or orientation but
merely identifies certain acts which if committed would
constitute an offence - The factual foundation in support of
challenge to s. 377 is insufficient to record a finding that
F homosexuals are subjected to discriminatory treatment - The
facts of the case cannot be made sound basis for declaring
s. 377 ultra vires the provisions of Arts. 14, 15 and 21 -
Despite the verdict, liberty given to the competent legislature
G to consider the desirability and propriety of deleting or
amending s. 377 - Constitution of India, 1950 - Arts. 14, 15
and 21 - Universal Declaration of Human Rights (1948) -
Article 12 - International Covenant of Civil and Political Rights
and European Convention on Human Rights - Article 17.
H 116
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 117
s. 377 - Acts of carnal intercourse against the order of A
nature - Determination of - Held: Such acts can be
determined with reference to the act itself and the
circumstances in which they are executed.
s. 377 - Applicability of - Held: In the light of plain B
meaning and legislative history of the provision, it would apply
irrespective of age and consent.
Constitutionalism:
Presumption of constitutionality - Held: Every legislation
c
enacted by Parliament or State Legislature carries with it
presumption of constitutionality - The presumption is
applicable to the pre-Constitutional as well as post-
Constitutional laws - Constitution of India, 1950 - Article 13. D
Constitutionality of law - Determination of - Held:
Declaration of law as unconstitutional, is one of the last resorts
taken by the courts - The court would accept an interpretation
which would be in favour of constitutionality - The courts would
E
preferably put into service the principles of 'reading down' and
'reading into' the provision to make it effective, workable and
to ensure the attainment of the object of the Act.
Constitutional validity of a penal provision -
F
Determination of - Held: Vagueness and arbitrariness go to
the root of a provision and may render it unconstitutional -
However, while analyzing a provision, the vagaries of
language and prior application of the law must be kept in mind
- Constitution of India, 1950 - Art. 14.
G
Constitutional validity of a provision which purports to
restrict the rights guaranteed under Art. 21 of the Constitution
- Determination of - Held: The requirement of substantive
due process has been read into the Constitution through a
H
118 SUPREME COURT REPORTS (2013] 17 S.C.R.
A combined reading of Articles 14, 21 and 19 - 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
B order to fulfill this test, the law must not only be competently
legislated but it must also be just, fair. and reasonable -
Constitution of India, 1950 - Arts. 14, 19 and 21.
Vires of a penal provision - Determination of - field:
C Misuse of the provision by the police authorities etc. cannot
be a ground to determine the vires of the provision - Penal
Code, 1860 - s.
377.
Judicial Review - Scope of - Power of judicial review
D over legislations is plenary -. But the courts exercise self- ·
restraint keeping in mind importance of principle of separation
of powers and value of democracy.
Doctrines/Principles:
E
Doctrine of Severability - Applicability.
Principle of presumption of constitutionality -
Applicability.
F Principles of 'reading down' and 'reading into' -
Applicability.
Interpretation of Statutes - Reading down of statute -
Applicability.
G
Respondent No. 1, a Non-Governmental
Organization (NGO), which works in the field of HIV/AIDS,
filed writ petition seeking declaration that s.377 of IPC is
violative of Articles 14, 15, 19(1)(a)-(d) and 21 of the
Constitution, to the extent it is applicable to and penalizes
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 119
sexual acts in private between consenting adults. The A
respondent inter alia took the plea that private
consensual sexual relations are protected under the right
to liberty under .the privacy and dignity; that Section 377
IPC insofar as it criminalises consensual, non-procreative
sexual relations is unreasonable and arbitrary and B
therefore violative of Article 14; that Section 377 creates
a classification between "natural" (penile-vaginal) and
"unnatural" (penile-non-vaginal) penetrative sexual acts;
that the legislative objecti~ of penalising unnatural acts
has no rational nexus with the classification between c
natural (procreative) and unnatural (non-procreative)
sexual acts and is thus violative of Article 14; that Section
377 serves as a weapon for police abuse; and that it
drives gay men and 'men who have sex with men' (MSM)
and sexual minorities generally underground which D
cripples HIV/AIDS prevention• methods.
Initially the writ petition was dismissed on the ground
that no cause of action had accrued to respondent No.1.
In i{ppeal, when the matter was remitted by this Court, the
High Court allowed the petition. Hence the present E
appeal.
Allowing the appeal, the Court
HELD: 1.1. High Court and this Court are empowered F
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 Ill of the Constitution. In fact a constitutional duty G
has been cast upon this 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 H
120 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 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
B manifested itself in the principle of presumption of
constitutionality. [Para 26) [194-E-H; 195-A]
Anuj Garg vs. Hotel Association of India, Peerless
General Finance Investment Co. Ltd. vs. Reserve Bank of
C India (1992) 2 SCC 343: 1992 (1) SCR 406; Va/lamattom
and Anr. v. Union of India AIR 2003 SC 2902: 2003 (1)
Suppl. SCR 638 - relied on.
1.2. Every legislation enacted by Parliament or State
D Legislature carries with it a presumption of
constitutionality. This is founded on the premise that the
, legislature, being a representative ,body of the people and
accountable to them is aware of their needs and acts in
their best interest within the confines of the Constitution.
E 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
F 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. In light of this, both pre and post Constitutional
laws are manifestations of the will of the people of India
G through the Parliament and are presumed to be
constitutional. [Para 28) [198-C-F]
1.3. The doctrine of severability and the practice of
reading down a statute both arise out of the principle" of
presumption of constitutionality and are specifically
H
I
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 121
recognized in Article 13 which renders the law, which is A
pre-Constitutional to be void only to the extent of
inconsistency with the Constitution. [Para 29) [198-F-G]
R.M.D. Chamarbaugwal/a vs. The Union of India (UOI)
AIR 1957 SC 628: 1957 SCR 93 - followed. B
1.4. Another significant canon of determination of
constitutionality is tha_t the Courts would be reluctant to
d~clare a law Invalid or ultra vires on account of
unconstitutionality. The Courts would accept an c
inte.rpretation, · which would be in favour of
constitutionality rather than the one which would render
thi;! . law unconstitutional. Declaring the law
unconstitutional is one of the last resorts taken by the
Courts. The Courts would preferably put into service the D
_principle of 'reading down' or 'reading into' the provision
lo make it effective, workable and ensure the attainment
. of the object of the Act. [Para 30) [201-E-G]
D.S. Nakara and Ors. vs. Union of India (UOI) (1983) 1 E
SCC 305:'1983 (2) SCR 165; Minerva Mills Ltd. and Ors. vs.
Union of India (UOI) and Ors. (1980) 3 SCC 625: 1981 (1)
SCR 206; Delhi Transport Corporation vs. D. T.C. Mazdoor
Congress and Ors. 1991 Supp (1) SCC 600: 1990 (1) Suppl.
SCR.142 - followed. F
Nam1t Sharma vs. Union of India (2013) 1 SCC 745;
Commissioner of Sales Tax, Madhya Pradesh, Indore and
Ors. vs. Radhakrishan and Ors. (1979) 2 SCC 249 - relied
on. G
1.5. Thus, the High Court and this Court are
empower€d to review the constitutionality of Section 377
IPC and strike it down to the extent of its inconsistency
with the Constitution. [Para 32) [206-F] H
122 SUPREME COURT REPORTS [2013) 17 S.C.R.
A 1.6. After the adoption of the IPC in 1950, around 30
amendments have been made to the statute, the most
recent being in 2013 which specifically deals with sexual
offences, a category to which Section 377 IPC belongs:
The 172nd Law Commission Report specifically
B 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-
e delete the provision. Such a conclusion is further
strengthen~d by the fact that despite the decision of the
Union of India not to challenge in appeal the order of the
Delhi High Court, the Parliament has not made any
0 amendment in the law. While this does not make the law
immune from constitutional challenge, it must'
nonetheless guide understanding of character, scope,
ambit and import. [Para 32) [206-G-H; 207-A-C]
E 2. The IPC along with Section 377 as it exists today
was passed by the Legislative Council and the Governor
General assented to it on 6.10.1860. The understating of
acts which fall within the ambit of Section. 377 has
changed from non-procreative to imitative of sexual
F intercourse to sexual perversity. The acts which fall within
the ambit of Section 377 can only be determined with
reference to the act itself and the circumstances in which
it is executed. Nonetheless in light of the plain meaning
and legislative history of Section 377 IPC it would apply
G irrespective of age and consent. Section 377 IPC does not
criminalize a particular people or identity or orientatio11o.
It merely identifies certain acts which if committed would
constitute an offence. Such a prohibition regulates
sexual conduct regardless of gender identity and
H orientation. [Para 38) [216-C-D; 227-8, D-F]
. SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 123
Lohana Vasantlal vs. State AIR 1968 Guj 352; State v. A
Bachmiya Musamiya (1999) 3 Gui LR 2456; Govindarajula
In re. (1886) 1 Weir 382; Khandu vs. Emperor 35 Cri LJ 1096
: AIR 1934 Lah ·261; State of Kera/a vs. Kundumkara
Govindan and Anr. 1969 Cri LJ 818; Fazal Rab Choudhary
. vs. State of Bihar (1982) 3 SCC 9; Kedar Nath S/o B
Bhagchand vs. State of Rajasthan 1985 (2) WLN 560; Calvin
Francis vs. Orissa 1992 (2) Crimes 455; Mihir alias Bhikari
Charan Safiu vs. State 1992 Cri LJ 488 ·- referred to.
3.1. -The High Court was not justified in entertaining C
the challenge to Section 377. IPC despite the fact that
respondent No;1 had not laid factual foundation to
support its cha)lenge. The writ - petition filed by
respondent No.1 .was singularly laconic inasmuch as
except giving brief detail of the work being done by it for D
HIV prevention targeting MSM community, it miserably
failei:I to furnish the particulars of the incidents of
discriminatory attitude exhibited by the State agencies
·towards sexual minorities and consequential denial of E
basic human rights to them. Respondent No.1 has also
not furnished the particulars of the cases involving
harassment and assault from public and public
authorities to sexual minorities. Only in the affidavit filed
before this Court on behalf of the Ministry of Health and F
Family Welfare, Department of AIDS Control it has been
averred that estimated HIV prevalence among FSW
(female sex workers) is 4.60% to 4.94%, among MSM
(men who have sex with men) is 6.54% to 7.23% and IOU
(injecting drug users) is 9.42% to 10.30%. The total G
population of MSM as in 2006 was estimated to be
25,00,000 and 10% of them are at risk of HIV. The State-
wise break up of estimated size of high risk men who
have sex with men, the State-wise details of total adult
population, estimated adult HIV prevalence and H
124 SUPREME COURT REPORTS [2013] 17 S.C.R.
A estimated number of HIV infections as in 2009 has been.
given in the affidavit. [Paras 39 and 40) [227-F-G, 228-G-
H; 229-A-D]
Southern Petrochemical Industries vs. Electricity
B Inspector (2007) 5 SCC 447: 2007 (6) SCR 955; Seema Silk
and Sarees vs. Directorate of Enforcement (2008) 5 SCC
580: 2008 (8) SCR 201 - relied on.
3.2. While reading down Section 377 IPC, the High
c Court overlooked that a miniscule fraction of the
country's population constitute 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
D 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. [Para 43) [234-D-E]
3.3. Those who indulge in carnal intercourse in the
E 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
F 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 Cr.P.C. and other statutes of the
same family, the person is found guilty. Therefore, the
G High Court was not right in declaring Section 37"7 IPC
ultra vires Articles 14 and 15 of the Constitution. [Para 42)
[234-A-C]
Re: Special Courts Bill, 1978 (1979) 1 SCC 380: 1979
H (2) SCR 476 - followed.
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 125
3.4. The vagueness and arbitrariness go to the root A
of a provision and may render it unconstitutional, making
its implementation a matter of unfettered discretion. This
is especially so in case of penal statutes. However while
analyzing a provision the vagaries of language must be
borne in mind and prior application of the law must be B
considered. [Para 44] [234-F-G]
A.K. Roy and Ors. vs. Union of India and Ors. (1982) 1
SCC 271: 1982 (2) SCR 272 - followed.
K.A. Abbas vs. The Union of India (UOI) and Anr. (1970)
c
2 SCC 780: 1971 (2) SCR 446 - relied on.
4.1. 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 D
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
E
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. [Para 45] [237-A-C]
F
Maneka Gandhi vs. Union of India (1978) 1 SCC 248:
1978 (2) SCR 621 - relied on.
4.2. The right to privacy has been guaranteed by
Article 12 of the Universal Declaration of Human Rights G
(1948), Article 17 of the International Covenant of Civil and
Political Rights and European Convention on Human
Rights. It has been read int~ Article 21 through an
expansive reading of the right to life and liberty. [Para 46]
[238-E-F] H
126 SUPREME COURT REPORTS [2013) 17 S.C.R.
A Kharak Singh vs. State of UP and Ors. (1964) 1 SCR
332; Gobind vs. State of MP (1975) 2 SCC 148: 1975 (3)
SCR 946 - relied on.
4.3. Respondent No.1 attacked Section 377 IPC on
B the ground that the same has been used to perpetrate
harassment, blackmail and torture on certain persons,
especially those belonging to the LGBT comm4nity. This
treatment is neither mandated by the section nor
condoned by it and the mere fact that the section is
C 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. [Para 51] [246-
B-C]
D
Sushi/ Kumar Sharma vs. Union of India and Ors. (2005)
6 SCC 281: 2005 (1) Suppl. SCR 730; Jagmohan Singh vs.
State of U.P. (1973) 1 SCC 20: 1973 (2) SCR 541 - relied
on.
E
A.K. Gopa/an vs. State of Madras 1950 SCR 88; R.C.
Cooper VS. Union of India (1970) 1 sec 248:1970 (3) SCR
530; State of Madras vs. V.G. Row 1952 SCR 597; Surendra
Pal vs. Saraswati Arora (1974) 2 SCC 600: 1975 (1) SCR
F 687; Suchita Srivastava a·nd Anr. vs. Chandigarh
Administration (20!)9) 9 SCC 1; Mr. X vs. Hospital Z (1998)
8 SCC 296: 1998 (1) Suppl. SCR 723; Francis Coralie
Mullin vs. Administrator, Union Territory of Delhi and Ors.
(1981) 1 SCC 608: 1981 (2) SCR 516 - referred to.
G 5. 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.
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 127
It is clarified that this Court has merely pronounced A
on the correctness of the view taken by the 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 8
propriety of deleting Section 377 IPC from the statute
book or amend the same as per the suggestion made by
the Attorney General. [Para 54 and 56] [254-B, 0-E]
Gobind vs. State of Madhya Pradesh and Anr. (1975) 2 C
SCC 148: 1975 (3) SCR 946; Lawrence vs. Texas 539 U.S.
558 (2003); Dudgeon vs. UK, European Court of Human
Rights Application No.7525/1976 Norris vs. Republic of
Ireland, European Court of Human Rights Application No.
10581/1983; The National Coalition for Gay and Lesbian D
Equality vs. The Minister of Justice, South African
Constitutional Court 1999 (1) SA 6; State of M.P. vs. Baldeo
Prasad, (1961) 1 SCR 970; Coelho (Dead} by LRs vs. State
of Tamil Nadu and Ors. (2007) 2 SCC 1: 2007 (1) SCR 706;
E
Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha and Ors.
(2007) 3 SCC 184: 2007 (1) SCR 317; Peerless General
Finance Investment Co. Ltd. vs. Reserve Bank of India (1992)
2 sec 343; Southern Petrochemical Industries VS. Electricity
Inspector (2007) 5 SCC 447: 2007 (6) SCR 955; Tamil Nadu F
Electricity Board vs. Status Spinning Mills (2008) 7 SCC 353:
2008 (9) SCR 870; Seema Silk and Sarees vs. Directorate
of Enforcement (2008) 5 SCC 580: 2008 (8) SCR 201 -
referred to.
G
Khanu vs. Emperor AIR 1925 286 (Sind); Jayalakshmi
vs. State (2007) 4 MLJ 849; Krishna vs. State of Madras,
1951 SCR 621; Gay and Lesbia{J Equality vs. Minster of
Justice and Ors. 1998 (12) BCLR 1517 (CC); Queen
H
128 SUPREME COURT REPORTS (2013] 17 S.C.R.
A Empress vs. Khairati 1884 ILR 6 ALL 204; M. Nagaraj vs.
Uo/ (2006) 8 SCC 212: 2006 (7) Suppl. SCR 336; Tractor
Export vs. Tarapore .and Co. (1969) 3 SCC 562: 1970 (3)
SCR 53; Jolly George vs. Bank of Cochin (1980) 2 SCC 360:
1980 (2) SCR 913; Gramaphone Company of India Ltd. vs.
B Birendra Bahadur Pandey (1984) 2 SCC 534: 1984 (2) SCR
664; Ve/lore Citizens Welfare Forum vs. Uo/ (1996) 5 SCC
647: 1996 (5) Suppl. SCR 241; Vishaka and Ors. vs. State
of Rajasthn and Ors. (1997) 6 SCC 241; 1997 (3) Suppl.
C SCR 404; PUCL vs. Uol and Anr (1997) 1 SCC 301: 1996
(10 ) Suppl. SCR 321 PUCL vs. Uo/ and Anr (1997) 3 SCC
433: 1997 (1) SCR 923; Apparel Export Promotion Council
vs. A.K. Chopra (1999) 1 SCC 759: 1999 (1) SCR 117;
Pratap Singh vs. State of Jharkhand (2005) 3 SCC 551: 2005
D (1) SCR 1019; PUCL vs. Uol and Anr. (2005) 2 SCC 436:
2005 (1) SCR 494; Entertainment Network (India) Ltd. vs.
Super Cassette Industries (2008) 12 SCC 10; Smt. Se/vi vs.
State of Karnataka (2010) 7 SCC 263: 2010 (5) SCR 381;
Mithu vs. State of Punjab (1983) 2 SCC 277: 1983 (2) SCR
E 690; State of Punjab vs. Dalbir Singh (2012) 2 SCALE 126;
Rajesh Kumar vs. State through Govt of NCT of Delhi (2011)
11 SCALE 182; Francis Coralie Mullin; Prem Shankar Shukla
vs. Delhi Administration (1980) 3 SCC 526: 1980 (3) SCR
855; Maharashtra University of Health Science and Ors. vs.
F Satchikitsa Prasarak Manda/ and Ors. (2010) 3 SCC 786:
2010 (3) SCR 91; DK Basu vs. State of WB (1997) 1 SCC
416: 1996 (10 ) Suppl. SCR 284; Egan vs. Canada [1995]
2 SCR 513; Law vs. Canada (Minister of Employment and
Immigration [1999] 1 SCR 497; AK Roy vs. Uol (1982) 1
G SCC 271: 1982 (2) SCR 272; KA Abbas vs. Uol and Anr.
(1970) 2 SCC 760, Harish Chandra Gupta vs. State of UP AIR
1960 All 650; Subhash Chandra and Anr. vs. Delhi
Subordinate Services Selection Board (2009) 15 SCC 458:
2009 (12) SCR 978; Kartar Singh vs. State of Punjab (1994)
H
· SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 129
3 SCC 569: 1994 (2) SCR 375; M Nagaraj vs. Uo/ (2006) 8 A
SCC 212: 2006 (7) Suppl. SCR 336; Deepak Sibal vs.
Punjab University (1989) 2 SCC 145: 1989 (1) SCR 689;
Grace Jayamani vs. EP Peter AIR 1982 Kant. 46; Punjab
Province vs. Dau/at Singh AIR 1946 PC 66; State of Bombay
vs. Bombay Education Society [1955] SCR 568; Ram B
Krishna Da/mia vs. Shri Justice S.R. Tendolkar and Ors. AIR
1958 SC 538: 1959 SCR 2790 - cited.
Principles of Statutory Interpretation 13th Edn. 2012
- referred to: c
"The Indian Constitution - Cornerstone of A Nation",
by Granville Austin - referred to.
Case Law Reference :
D
1975 (3) SCR 946 referred to Para 10
539 U.S. 558 (2003) referred to Para 10
1999 (1) SA 6 referred to Para 10
E
[2001] 2 WLR 1389 referred to Para 14
319 US 624 (1943) l.R referred to Para 14
2007 (1) SCR 706 referred to Para 14
F
2007 (1) SCR 317 referred to Para 14
(1992) 2 sec 343 referred to Para 14
2007 (6) SCR 955 referred to Para 16;4
G
2008 (9) SCR 870 referred to Para 16.4
2008 (8) SCR 201 referred to Para 16.4
1950 SCR 88 referred to Para 16.8
H
130 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 1970 (3) SCR 530 referred to Para 16.8
1978 (2) SCR 621 referred to Para 16.8
AIR 1925 286 (Sind) referred to Para 16.8
B (1961) 1 SCR 970 referred to Para 17.8
(2007) 4 MLJ 849 referred to Para 17.9
1951 SCR 621 cited Para 18.1
c 1998 (12) BCLR 1517 (CC) cited Para 19.9
1884 ILR 6 ALL 204 cited Para 19.9
1981 (2) SCR 516 cited Para 19.11
2006 (7) Suppl. SCR 336 cited Para 19.11
D
1970 (3) SCR 53 cited Para 19.11
1980 (2) SCR 913 .c;ited Para 19.11
1984 (2) SCR 664 cited Para 19.11
E
1996 (5) Suppl. SCR 241 cited Para 19.11
1997 (3) Suppl. SCR 404 cited Para 19.11
1996 (10) Suppl. SCR 321 cited Para 19.11
F
1997 (1) SCR 923 cited Para 19.11
1999 (1) SCR 117 cited Para 19.11
2005 (1) SCR 1019 cited Para 19.11
G 2005 (1) SCR 494 cited Para 19.11
(2008) 12 sec 1o cited Para 19.11
2010 (5) SCR 381 cited Para 19.11
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 131
1983 (2) SCR 690 cited Para 19.13 A
(2012) 2 SCALE 126 cited Para 19.13
(2011) 11 SCALE 182 cited Para 19.13
1980 (3) SCR 855 cited Para 19.14 B
2010 (3) SCR 91 cited, Para 19.14
2005 (1) Suppl. SCR 624 cited Para 19.14
1996 (10 ) Suppl. SCR 284 cited Para 19.14
c
[1995] 2 SCR 513 cited Para 19.14
[1999] 1 SCR 497 cited Para 19.14
1982 (2) SCR 272 cited Para 19.16
D
(1970) 2 sec 760 cited Para 19.16
AIR 1960 All 650· cited Para 19.16
2009 (12) SCR 978 cited Para 19.16
E
1994 (2) SCR 375 cited Para 19.17
2006 (7) Sui>pl. SCR 336 cited Para 19.17
2007 (12) SCR 991 cited Para 19.17
F
1989 (1) SCR 689 cited Para 19.17
1992 (1) SCR 406 cited Para 19.18
AIR 1982 Kant. 46 cited Para 19.18
AIR 1946 PC 66 cited Para 19.19 G
[1955] SCR 568 cited· Para 19.19
1959 SCR 279 followed Para 27
H
132 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 2003 (1) Suppl. SCR 638 relied on Para 27
1957 SCR 930 followed Para 29
(2013) 1 sec 745 relied on Para 30
B 1983 (2) SCR 165 followed Para 30
(1979) 2 sec 249 relied on Para 30
1981 (1) SCR 206 followed Para 30
1990 (1) Suppl. SCR 142 followed Para 30
c
AIR 1968 Guj 352 referred to Para 38
1991 Cri LJ 488 referred to Para 38
(1886) 1 Weir 382 referred to Para 38
D
AIR 1934 Lah 261 referred to Para 38
1969 Cri LJ 818 referred to Para 38
(1982) 3 sec 9 referred to Para 38
E
1985 (2) WLN 560 referred to Para 38
1992 (2) Crimes 455 referred to Para 38
1992 Cri LJ 488 referred to Para 38
F
(1999) 3 Gui LR 2456 referred to Para 38
2007 (6) SCR 955 relied on Para 39
2008 (8) SCR 201 relied on Para 39
G 1979 (2) SCR 476 followed Para 41
1982 (2) SCR 272 followed Para 44
1971 (2) SCR 446 relied on Para 44
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 133
(1964) 1 SCR 332 relied on Para 46 A
1975 (3) SCR 946 relied on Para 46
c2009) 9 sec 1 referred to Para 48
1998 (1) Suppl. SCR 723 referred to Para 49 B
1981 (2) SCR 516 referred to Para 50
2005 (1) Suppl. SCR 730 relied on Para 51
1973 (2) SCR 541 relied on Para 52 c
1952 SCR 597 · referred to Para 52
1975 (1) SCR 687 referred to Para 53
CIVIL APPELLATE JJJRISDICTION : Civil Appeal No.
D
10972 of 2013.
From the Judgment and Order dated 02.07.2009 of the
High Court of Delhi at New Delhi in WP No. 7455 of 2001.
WITH E
Civil Appeal No. 10974, 10986,10981, 10983, 10984, 10975,
10973, 10985, 10976 ' 10980, 10982, 10977, 10978, 10979
of 2013.
F
Mohan Jain, ASG, J.S. Attri, Anand Grover, T.S. Doabia,
K. Radhakrishnan, Shyam Divan, Ashok. Desai, Siddarth
Luthra, Amit Anand Tiwari, Kiran Suri, S.J. Amith, Huzefa
Ahmadi, Garima Kapoor, Rishad A. Chaudhary, Mrigank
Prabha~ar, Ejaz maqbool, Harshvir Pratap Sharma, K.S. Rana, G
Manof V. George, Tehmina Arora, Alex Joseph, K. Gireesh
Kumar, K.C. Ranjith, B.D. Das, Shilpa M. George, lrshad Hanif,
Mushtaq Ahmad, Salish Aggarwal, Lakshmi Raman Singh,
Sushil Kumar Jain, K. C. Dua, P.V. Yogeswaran, T.A. Khan,
H
134 SUPREME COURT REPORTS [2013] 17 S.C.R.
A D.K. Thakur, Deepak Jain, B.K. Prasad,, Subhash Sharma,
Arvind Narrain, Nikhil Nayyar, Pritha Srikumar, Shivangi Rai,
Mihir Samson, Amritananda Chakravorty, Tripti Tandon,
Chanchal Kumar Ganguli, Dr. Chaudhary Shamsuddin Khan,
Sunil Roy, B.V. Bairam Das, Abrahm M. Pattiyani, Manju A.
B Pattiyani, Dr. Ashwani Bhardwaj, P. Ramesh Kumar, Vasurnan
Khandelwal, Mayur Suresh, Jawahar Raja, Vaishnavi, (for
Meenakshi Arora), Menka Guruswamy, Bipin Aspatwar, Raina
Kapur, Praneet Ranjan, Brahmajeet Mishra, Raghwendra
r Upadhyay, Dayan Krishnan, Siddharth Narrain, Gautam
N.irayan, Raja! Kumar, Nikhil Menon, S.K. Sinha, Pukhramban
"'1esh Kumar, Mohit Kumar Shah, Rajshekhar Rao, Karan
L .d1iri, Arundhati Katju, Liz Mathew for the appearing Parties
Ram Murti, Petitioner-In-Person, Purshottaman Mullali;
D Respondent-In-Person.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
E 2. These appeals are 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
F Indian Penal Code, 1860 (IPC) in the following terms:
"We declare that Section 377 IPC, insofar it criminalises
consensual sexual acts of adults in private, is violative of
Articles 21, 14 and 15 of the Constitution. The provisions
G of Section 377 IPC will continue to govern non-consensual
penile non-vaginal sex and penile non-vaginal sex involving
minors. By 'adult' we mean everyone who is 18 years of
age and above. A person below 18 would be presumed
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 135
[G.S. SINGHVI, J ]
not to be able to consent to a sexual act. This clarification A
will hold till, of course, Parliament chooses to amend the
law to effectuate the recommendation of the Law
Commission of India in its 172nd Report which we believe
removes a great deal of confusion. Secondly, we clarify
that our judgment will not result in the re-opening of criminal B
cases involving Section 377 IPC that have already attained
finality."
3. The Background facts:
c
(i) Respondent No.1 is a N_on-Governmental Organisation
(NGO) registered under the Societies Registration Act, 1860
which works in the field of HIV/AIDS intervention and prevention.
Its work has focussed on targeting 'men who have sex with men'
(MSM) or homosexuals or gays in consonance with the D
integrationist policy. Alleging that its efforts have been severely
impaired by the discriminatory attitudes exhibited by State
authorities towards sexual minorities, MSM, lesbians and
transgender individuals and that unless self respect and dignity
is restored to these sexual minorities by doing away with E
discriminatory laws such as Section 377 IPC it will not be
possible to prevent HIV/AIDS, NAZ Foundation filed WP(C) No.
7455/2001 before the Delhi High Court impleading the
Government of NCT of Delhi; Commissioner of Police, Delhi;
F
Delhi State Aids Control Society; National Aids Control
Organisation (NACO) and Union of India through Ministry of
Home Affairs and Ministry of Health & Family Welfare and
prayed for grant of a declaration that Section 377 IPC to the
extent it is applicable to and penalises sexual acts in private G
between consenting adults is violative of Articles 14, 15,
19(1 )(a)-(d) and 21 of the Constitution. Respondent No.1 further
prayed for grant of a permanent injunction restraining
Government of NCT of Delhi and Commissioner of Police, Delhi
H
136 SUPREME COURT REPORTS [2013] 17 S.C.R.
A from enforcing the provisions of Section 377 IPC in respect of
sexual acts in private between consenting adults.
(ii) Respondent No.1 pleaded that the thrust of Section 377
IPC is to penalise sexual acts which are "against the order of
B 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
C do not resonate with the historically held values in Indian society
concerning sexual relations. Respondent No.1 relied upon
172nd Report of the Law Commission which had
recommended deletion of Section 377 and pleaded that
notwithstanding the recent prosecutorial use of Section 377
D IPC, the same is detrimental to people's lives and an
impediment to public health due to its direct impact on the lives
of homosexuals; that the section serves as a weapon for police
abuse in the form of detention, questioning, extortion,
harassment, forced sex, payment of hush money; that the
E section perpetuates negative and discriminatory beliefs
towards same sex relations and sexual minorities in general;
and that as a result of that it drives gay men and MSM and
sexual minorities generally underground which cripples HIV/
F AIDS prevention methods. According to respondent No.1,
Section 377 is used predominantly against homosexual
conduct as it criminalises activity practiced more often by men
or women who are homosexually active. The evidence that
refutes the assumption that non-procreative sexual acts are
G unnatural includes socio-scientific and anthropological evidence
and also the natural presence of homosexuality in society at
large.
(iii) That private, consensual sexual relations are protected
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 137
[G.S. SINGHVI, J.]
under the right to liberty under Article 21 under the privacy and A
dignity claim. It was further pleaded that Section 377 IPC is not
a valid law because there exists no compelling State interest
to justify the curtailment of an important fundamental freedom;
that Section 377 IPC insofar as it criminalises consensual, non-
procreative sexual relations is unreasonable and arbitrary and B
therefore violative of Article 14.
(iv) Another plea taken by respondent No.1 was that
Section 377 creates a classification between "natural" (penile-
vaginal) and "unnatural" (penile-non-vaginal) penetrative sexual C
acts. The legislative objective of penalising unnatural acts has
no .rational nexus with the classification between natural
(procreative) and unnatural (non-procreative) sexual acts and
is thus violative of Article 14.
D
4. By an order dated 2.9.2004, the Division Bench of the
High Court dismissed the writ petition by observing that no
cause of action has accrued to respondent No.1 and purely
academic issues cannot be examined by the Court. The review
petition filed by respondent No.1 was also dismissed by the E
High Court vide order dated 3.11.2004.
5. Respondent No.1 challenged both the orders in SLP (C)
Nos. 7217-7218/2005, which were converted to Civil Appeal
No. 952/2006. This Court allowed the appeal vide order dated F
3.2.2006 and remitted the writ petition for fresh decision by the
High Court. The relevant portions of that order are reproduced
below:
"The challenge in the writ petition before the High Court G
was to the constitutional validity of Section 377 of the
Indian Penal Code, 1860. The High Court, without
examining that issue, dismissed the writ petition by the
impugned order observing that there is no case of action
H
138 SUPREME COURT REPORTS [2013] 17 S.C.R.
A in favour of the appellant as the petition cannot be filed to
test the validity of the Legislation and, therefore, it cannot
be entertained to examine the academic challenge to the
constitutionality of the provision.
B The learned Additional Solicitor General. if we may say so,
rightly submits that the matter requires examination and is
not of a nature which ought to have been dismissed on the
ground afore-stated. We may, however, note that the
appeal is being strenuously opposed by Respondent No.6.
c We are, however. not examining the issue on merits but
are of the view that the matter does require consideration
and is not of a nature which could have been dismissed
on the ground afore-stated. In this view, we set aside the
impugned judgment and order of the High Court and remit
D Writ Petition (C) No. 7455 of 2001 for its fresh decision by
the High Court."
6. NACO and the Health Ministry had filed counter in the
form of an affidavit of Shri M.L. Soni, Under Secretary to the
E Government of India, Ministry of Health & Family Welfare,
National AIDS Control Organisation. He outlined the strategy
adopted by NACO for prevention and control of HIV/AIDS in
India which includes identification of high risk groups and the
provision of necessary tools and information for protection and
F medical care. The deponent averred that National Sentinel
Surveillance Data 2005 estimated that HIV prevalence in "men
who have sex with men" (MSM) is 8% while in general
population it is lesser than 1%. The MSM population is
G estimated at 25 lacs as of January 2006. Shri Soni also stated
that NACO has developed programmes for undertaking
targeted interventions among MSM population and that for
prevention of HIV/AIDS there is a need for an enabling
environment where people indulging in risky behaviour may be
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 139
[G.S. SINGHVI, J.]
encouraged not to conceal information so that they are A
provided with access to NACO services.
7. On behalf of the Ministry of Home Affairs, Government
of India, Shri Venu Gopal, Director (Judicial) filed an affidavit
and pleaded that Section 377 does not suffer from any B
constitutional infirmity. Shri Venu .Gopal further pleaded that an
unlawful act cannot be rendered legitimate because the person
to whose detriment it acts consents to it; that Section 377 has
been applied only on complaint of a victim and there are no
instances of arbitrary use or application in situations where the C
terms of the section do not naturally extend to Section 377 IPC;
that Section 377 IPC is not violative of Articles 14 and 21 of
the Constitution. According to Shri Venu Gopal, Section 377
IPC provides a punishment for unnatural sexual offences, carnal
intercourse against the order of nature and does not make any D
distinction between procreative and non-procreative sex.
8. Joint Action Council Kannur and Shri B.P. Singhal, who
were allowed to act as interveners, opposed the prayer made
in the writ petition and supported the stand taken by the E
Government. Another intervener, i.e., Voices Against 377,
supported the prayer of respondent No.1 that Section 377
should be struck down on the ground of unconstitutionality.
9. The Division Bench of the High <;ourt extensively F
considered the contentions of the parties and declared that
Section 377, insofar as it criminalises consensual sexual acts
of adults in private is violative of Articles 21, 14 and 15 of the
Constitution. While dealing with the question relating to violation
of Article 21, the High Court outlined the enlarged scope of the G
right to life and liberty which also includes right to protection of
one's dignity, autonomy and privacy, the Division Bench
referred to Indian and foreign judgements, the literature and
H
140 SUPREME COURT REPORTS [2013) 17 S.C.R.
A international understanding (Yogyakarta Principles) relating to
sexuality as a form of identity and the global trends in the
protection of privacy and dignity rights of homosexuals and held:
'The sphere of privacy allows persons to develop human
B relations without interference from the outside community
or from the State. The exercise of autonomy enables an
individual to attain fulfilment, grow in self-esteem, build
relationships of his or her choice and fulfil all legitimate
goals that he or she may set. In the Indian Constitution, the
c right to live with dignity and the right of privacy both are
recognised as dimensions of Article 21. Section 377 IPC
denies a person's dignity and criminalises his or her core
identity solely on account of his or her sexuality and thus
violates Article 21 of the Constitution. As it stands, Section
D 377 IPC denies a gay person a right to full person hood
which is implicit in notion of life under Article 21 of the
Constitution.
The criminalisation of homosexuality condemns in
E perpetuity a sizable section of society and forces them to
live their lives in the shadow of harassment, exploitation,
humiliation, cruel and degrading treatment at the hands of
the law enforcement machinery. The Government of India
estimates the MSM number at a~ound 25 lacs. The number
F of lesbians and transgender is said to be several lacs as
well. This vast majority (borrowing the language of the
South African Constitutional Court) is denied "moral full
citizenship". Section 377 IPC grossly violates their right to
privacy and liberty embodied in Article 21 insofar as it
G
criminalises consensual se)<ual acts between adults in
private. These fundamental rights had their roots deep in
the struggle for independence and, as pointed out by
Granville Austin in "The Indian Constitution - Cornerstone
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 141
[G.S. SINGHVI, J.]
of A Nation", "they were included in the Constitution in the A
hope and expectation that one day the tree of true liberty
would bloom in India". In the words of Justice V.R. Krishna
Iyer these rights are cardinal to a decent human order and
protected by constitutional armour. The spirit of Man is at
the root of Article 21, absent liberty, other freedoms are 8
frozen.
A number of documents, affidavits and authoritative reports
of independent agencies and even judgments of various
courts have been brought on record to demonstrate the C
widespread abuse of Section 377 IPC for brutalizing MSM
and gay community persons, some of them of very recent
vintage. If the penal clause is not being enforced against
homosexuals engaged in consensual acts within privacy,
it only implies that this provision is not deemed essential D
for the protection of morals or public health vis-a-vis said
section of society. The provision, from this perspective,
should fail the "reasonableness" test."
10. The High Court discussed the question whether E
morality can be a ground for imposing restriction on
fundamental rights, referred to the judgments in Gobind v. State
of Madhya Pradesh and another (1975) 2 SCC 148, Lawrence
v. Texas 539 U.S. 558 (2003), Dudgeon v. UK, European Court
of Human Rights Application No. 7525/1976, Norris v. Republic F
of Ireland, European Court of Human Rights Application No.
10581/1983, The National Coalition for Gay and Lesbian
Equality v. The Minister of Justice, South African Constitutional
Court 1999 (1) SA 6, the words of Dr. Ambedkar quoting
G
Grotius while moving the Draft Constitution, Granville Austin in
his treatise "The Indian Constitution - Cornerstone of A Nation"
'
the Wolfenden Committee Report, 172nd Law Commission of
India Report, the address of the Solicitor General of India before
United Nations Human Rights Council, the opinion of Justice H
142 SUPREME COURT REPORTS (2013] 17 S.C.R.
A Michael Kirby, former Judge of the Australian High Court and
observed:
"Thus popular morality or public· disapproval of certain acts
is not a valid justification for restriction of the fundamental
B rights under Article 21. Popular morality, as distinct from
a constitutional morality derived from constitutional values,
is based on shifting and subjecting notions of right and
wrong. If there is any type of "morality" that can pass the
test of compelling state interest, it must be "constitutional"
c morality and not public morality.
The argument of the learned ASG that public morality of
homosexual conduct might open floodgates of delinquent
behaviour is not founded upon any subsiantive material,
D even from such jurisdictions where sodomy laws have been
abolished. Insofar as basis of this argument is concerned,
as pointed out by Wolfenden Committee, it is often no
more than the expression of revulsion against what is
regarded as unnatural, sinful or disgusting. Moral
E indignation, howsoever strong, is not a valid basis for
overriding individuals' fundamental rights of dignity and
privacy. In our scheme of things, constitutional morality
must outweigh the argument of public morality, even if it
be the majoritarian view. In Indian context, the latest report
F (172nd) of Law Commission on the subject instead shows
heightened realization about urgent need to follow global
trends on the issue of sexual offences. In fact, the admitted
case of Union of India that Section 377 IPC has generally
been used in· cases of sexual abuse or child abuse, and
G
conversely that it has hardly ever been used in cases of
consenting adults, shows that criminalization of adult same-
sex conduct does not serve any public interest. The
compelling state interest rather demands that public health
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 143
[G.S. SINGHVI, J ]
measures are strengthened by de-criminalization of such A
activity, so that they can be identified and better focused
upon.
For the above reasons we are unable to accept the stand
of the Union of India that there is a need for retention of B
Section 377 IPC to cover consensual sexual acts between
adults in private on the ground of public morality."
11. The High Court then considered the plea of respondent
No.1 that Section 377 is violative of Article 14 of the c
Constitution, referred to the tests of permissible classification
as also the requirements of reasonableness ~nd non-
arbitrariness as laid down by this Court and held that the
classification created by Section 377 IPC does not bear any
rational nexus to the objective sought to be achieved. The D
observations made by the High Court on this issue are
extracted below:
"It is clear that Section '377 IPC, whatever its present
pragmatic application, was not enacted keeping in mind E
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 drawing on notions of carnality and
sinfulness. In any way, the legislative object of protecting
women and children has no bearing in regard to F
consensual sexual acts between adults in private. The
second legislative purpose elucidated is that Section 377
IPC serves the cause of public health by criminalizing the
homosexual behaviour. As already held, this purported
legislative purpose is in complete contrast to the G
averments in NACO's affidavit. NACO has specifically
stated that enforcement of Section 377 IPC adversely
contributes to pushing the infliction underground, make
H
144 SUPREME COURT REPORTS [2013] 17 S.C.R.
A risky sexual practices go unnoticed and unaddressed.
Section 377 JPC thus hampers HIV/AIDS prevention
efforts. Lastly, as held earlier, it is not within the
constitutional competence of the State to invade the
privacy of citizen's lives or regulate conduct to which the
B citizen alone is concerned solely on the basis of public
morals. The criminalization of private sexual relations
between consenting adults absent any evidence of serious
harm deems the provision's objective both arbitrary and
unreasonable. The state interest "must be legitimate and
c relevant" for the legislation to be non-arbitrary and must be
proportionate towards achieving the state interest. If the
objective is irrational, unjust and unfair, necessarily
classification will have to be held as unreasonable. The
D nature of the provision of Section 377 IPC and its purpose
is to criminalise private conduct of consenting adults which
causes no harm to anyone else. It has no other purpose
than to criminalise conduct which fails to conform with the
moral or religious views of a section of society. The
E discrimination severely affect~ the rights and interests of
homosexuals and deeply impairs their dignity."
12. The High Court took note of the Declaration of
Principles of Equality issued by the Equal Rights Trust in April,
F 2008. It referred to the judgments in The National Coalition for
Gay and Lesbian Equality v. The Minister of Justice, Lawrence
v. Texas, Romer v Evans, Vriend v. Alberta and held:
"Section 377 IPC is facially neutral and it apparently targets
not identities but acts, but in its operation it does end up
G
unfairly targeting a particular community. The fact is that
these sexual acts which are criminalised are associated·
more closely with one class of persons, namely, the
homosexuals as a class. Section 377 IPC has the effect
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 145
[GS. SINGHVI, J.)
o.f viewing all gay men as criminals. When every1hing A
associated with homosexuality is treated as bent, queer,
repugnant. the whole gay and lesbian community is marked
with deviance and perversity. They are subject to extensive
prejudice because what they are or what they are
perceived to be, not because of what they do. The result B
is that_a significant group of the population is, because of
its sexual nonconformity, persecuted, marginalised and
turned in on itself. [Sacl')s, J. in The National Coalition for
Gay and Lesbian Equality v. The Minister of Justice, para C
108].
13. The High Court also discussed the case of Anuj Garg
v. Hotel Association of India in detail and made reference to
the principles of strict scrutiny and proportionality review as
borrowed from the jurisprudence of the US Supreme Court, the D
Canadian and European Courts and proceeded to observe:
"On a harmoniou~ construction of the two judgments, the
Supreme Court must be interpreted to have laid down that
the principle of 'strict scrutiny' would not apply to affirmative E
action under Article 15(5) but a measure that
disadvantages a vulnerable group defined on the basis of
a ct:iaracteristic that relates to personal autonomy must be
subject to strict scrutiny.
F
Thus personal autonomy is inherent in the grounds
mentioned in Artide 15. The grounds that are not specified
in ArtiCle 15 but are analogous to those specified therein,
will be those which have the potential to impair the personal
autonomy of an individual. This view was earlier indicated G
in Indra Sawhney v. Union of India, (1992) Supp. 3 SCC
217 ....
As held in Anuj Garg, if a law discriminates on any of the
H
146 SUPREME COURT REPORTS [2013) 17 S.C.R.
A prohibited grounds, it needs to be tested not m~rely
against "reasonableness" under Article 14 but be subject
to "strict scrutiny". The impugned provision in Section 377
IPC criminalises the acts c:if sexual minorities particularly
men who have sex with men and gay men. It
B disproportionately impacts them solely on the basis of their
sexual orientation. The provision runs counter to ihe
constitutional values and the notion of human dignity which
is considered to be the cornerstone of our Constitution.
Section 377 IPC in its application to sexual acts of
c consenting adults in privacy discriminates a section of
people solely on the ground of their sexual orientation
which is analogous to prohibited ground of sex. A provision
of law branding one section of people as criminal bas~d
D wholll( on the State's moral disapproval of that class goes
counter to the equality guaranteed under Articles 14 and
15 under any standard of review.
A constitutional provision must be construed, not in ·a
narrow and constricted sense, but in a wide and liberal
E
manner so as to anticipate and take account of changing
conditions and purposes so that the constitutional provision
does not get atrophied or fossilized but remains· flexible
enough to meet the newly emerging problems. [Francis
F Coralie Mullin v. Union Territory of Delhi (1981) 1 SCC
608, Para 6 of SCC)."
14. Finally, the High Court elaborated upon the scope of
the Court's power to declare a statutory provision invalid,
G referred to the judgments in Stde of Madras v. V. G. Row, R.
(Alconbury Ltd.) v. Environment Secretary, [2001) 2 WLR
1389, West Virginia State Board of Education_ v. Barnette, 319
US 624 (1943), l.R. Coelho (Dead) by LRs v. State of Tamil
Nadu & Ors., (2007) 2 SCC 1 and Raja Ram Pal v. Hon'ble
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 147
[G.S. SINGHVI, J.]
Speaker, Lok Sabha & Ors., (2007) 3 SCC 184, Peerless A
General Finance Investment Co. Ltd. v. Reserve Bank of
India, (1992) 2 SCC 343 and held:
"It is true that the courts should ordinarily defer to the
wisdom of the legislature while exercising the power of B
juGttefal review of legislation. But it is equally well settled
that the degree of deference to be given to the legislature
is dependent on the subject matter under consideration.
When matters cif "high constitutional importance" such as
constitutionally entrenched human rights - are under C
consideration, the courts are obliged in discharging their
own sovereign jurisdiction, to give considerably less
deference to the legislature than would oth.erwise be the
case.
D
In the present case, the two constitutional rights relied upon
. i.e. 'right to personal liberty' and 'right to equality' are
fundamental human rights which belong to individuals
simply by virtue of their humanity, independent of any
utilitarian consideration. A Bill of Rights does not 'confer' E
fundamental human rights. It confirms their existence and
accords them protection.
After the conclusion of oral hearing, learned ASG filed his
written submissions in which he claimed that the courts F
have only to interpre,t the law as it is and have no power
to declare the law in"1alid. According to him, therefore, if
we were to agree with the petitioner, we could only make
recommendation to Parliament and it is for Parliament to
amend the law. We are constrained to observe that the G
submission of learned ASG reflects rather poorly on his
understanding of the constitutional scheme. It is a
fundamental principle of our constitutional scheme that
every organ of the State, every authority under the
H
148 SUPREME COURT REPORTS [2013] 17 S.C.R.
A Constitution derives its power or authority under the
Constitution and has to act within the limits of powers. The
judiciary is constituted as the ultimate interpreter of the
Constitution and to it is assigned the delicate task of
determining what is the extent and scope of the power
B conferred on each branch of government, what are the
limits on the exercise of such power under the Constitution
and whether any action of any branch transgresses such
limits. The role of the judiciary is to protect the fundamental
rights. A modern democracy while based on the prLnciple
c of majority rule implicitly recognizes the need to protect the
fundamental rights of those who may dissent or deviate
from the majoritarian view. It is the job of the judiciary to
balance the principles ensuring that the government on the
basis of number does not override fundamental rights. After
D
the enunciation of the basic structure doctrine, full judicial
review is an integral part of the constitutional scheme. To
quote the words of Krishna Iyer, J. "... The compulsion of
constitutional humanism and the assumption of full faith in
E life and liberty cannot be so futile or fragmentary that any
transient legislative majority in tantrums against any
minority by three quick readings of a Bill with the requisite
quorum, can prescribe any unreasonable modality and
thereby sterilise the grandiloquent mandate."
F
15. The order of the High Court has been challenged by
large number of organizations and individuals including Joint
Action Council Kannur and Shri B.P. Singhal, who were
interveners before the High Court. During the pendency of the
G special leave petitions several individuals and organisations
filed IAs for permission to intervene. All the IAs were allowed
vide order dated 7.2.2011 and the applicants were permitted
to act as interveners. The details of the parties and interveners
before this Court are as unqer:
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 149
[G.S. SINGHVI, J]
Case Name Description Details A
Number before the
Court
SLP (C) No. Suresh Petitioners Petitioners are
15436/2009 Kumar (Not parties citizens of India B
(CC No. Koushal & before the who believe they
. 9255/2009) Anr. High Court) have the moral
responsibility and
duty in protecting
cultural values of c
Indian society.
Samajik Intervener- The applicant is a
Ekta Party IA No. 4/2009 political party
registered by the
Election D
Commission of
India under Sec
29A,
Representation
of People Act, E
1951 vide order
dt. 20.4.1995. It
is interested in
the welfare of the
citizens, their F
rights, functioning
of the State and
interest of public
at large.
G
Mr. Shyam Intervener-IA The applicant is a
Senegal No. 6/2009 film maker and a
citizen. He seeks
;
impleadment in
the SLP in light of
H
150 SUPREME COURT REPORTS [2013] 17 S.C.R.
A the fact that due
to the
misunderstanding
and confusion of
thought with
B regard to
homosexuality, all
points of view
must be projected
before this
c Hon'ble Court .
.
Trust God lnterveners- The applicant is a
Missionaries IA No. 7/2010 registered
charitable trust
D having the main
aim to preserve
and protect life for
humanity and
earth and takes
support from
E
human rights,
social and
religious
organisations,
such as CBCI,
F NCCI and KCBC,
etc. The applicant
claims to be vitally
interested in the
outcome of the
G appeal and is an
affected party.
Minna Interveners - The applicants
Saran & IA No. 8/2010 are parents of
H Others lesbian, gay,
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 151
[G.S. SINGHVI, J.]
(Parents of A
bisexual and
LGBT transgender
Children) persons from
different
professional,
socio-cultural B
backgrounds and
different regions
of India. They
have a direct and
immediate stake c
in the
proceedings and
are necessary
and proper
parties. No D
prejudice will be
caused to the
petitioners if the
applicants are
impleaded but E
the applicants will
sufferer
irreparable harm
and damage as
criminalisation
F
not only affects
the LGBT
persons but also
their families.
Their struggles of
G
having to
understand
sexuality at odds
with Section 377
IPC have resulted
H
152 SUPREME COURT REPORTS [2013] 17 S.C.R.
A in accepting thei1
children's
sexuality and the1
are acutely awarE
of the social
B stigma prejudice,
myths and
stereotypes that
surround the
subject of
c homosexuality in
India.
Dr. Shekhar lnterveners - The Applicants
Seshadri & IA No. 9/2010 are mental health
Others · professionals
D (Professor who have been
of practising as
Psychiatry psychiatrists,
al the clinical
National psychologists
E Institute of and behavioral
Mental psychologists in
Health and the field of menta
Neuro health in reputed
Scie~ces, medical
F Bangalore) institutions
throughout India.
They claim to
have had
considerable
G expertise in
addressing the
mental health
concerns of
Lesbi.an, Gay,
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 153
[G.S. SINGHVI, J] ·
Bisexual and A
Transgender
persons. The
Applicants
submit that
sexual orientatior B
is an immutable
characteristic
and is present a
birth.
Nivedita
c
lnterveners - The Applicants
Menon & I.A. No. 10/ are
Others 2010 academicians
(Professor who wish to
in contribute to the
D
Political debate on the
Thought, issues raised by
Jawaharlal the judgment anc
Nehru to draw attention
University) to the mental
distress caused E
to the LGBT
community.
Raina lnterveners - The applicants
Kapur & IA No. 13/ are law
Ors. 2011 professors,
teachers and
research
associates with
Jindal Global
Law School
working in
different fields of
law such as
jurisprudence,
154 SUPREME COURT REPORTS [2013] 17 S.C.R.
A
human rights,
sexuality studies
and law, criminal
justice, and
cultural studies
B and law, and
feminist legal
theory. They are
concerned with
the correct
c interpretation of
statutes and the
constitutional
validity of Section
'377 !PC:
[)
SLP (C) No. Delhi Petitioner The petitioner
24334/2009 Commission (Not parties has been
for before the constituted
Protection High Court) under the
of Child Commissions
E
Rights for Protection of
Child Rights Ad,
2005 read with
Gel MHA
notification dt.
F 15.1.2008. Under
Sec 13(1j) the
Commission is
empowered to
take sue mote
G notice of
deprivation and
violation of child
rights, non
implementation
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 155
[G.S. SINGHVI, J.]
of laws providing A
for protection and
development of
children, and non
compliance of
policy decisions, B
guidelines or
instructions
aimed at
mitigating
hardship and c
ensuring welfare
of children and
providing relief.
Its functions
. include: study and
' D
monitor matters
relating to
constitutional and
legal rights of
children; examine
and review E
safeguards for
protection of child
rights and
effective
implementation F
of the same;
review existing
law and
recommend
amendments; G
look into
complaints of
taking suo moto
action in cases
H
156 SUPREME COURT REPORTS [2013] 17 S.C.R.
A involving violation
of child rights;
monitor
implementation
of laws; present
B reports to the
Central
Government. It is
the moral duty of
the Commission
c to protect the
best interest of
children and
provide them
with an
D atmospt1ere
where the
freedom and
dignity of all
children is safe
E and a child may
bloom without
any fear of abuse.
exploitation and
deprivation.
F CC No. Ram Murti Petitioner He is a citizen of
13105/2009 (not party India and has a
before the duty to report if
High Court something illegal
is happening.
G
SLP (C) No. B.P. Petitioner
22267/2009 Singhal (Respondent
7 - Intervener
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 157
[G.S. SINGHVI, J.]
before the A
High Court)
SLP (C) No. B. Krishna Petitioner (not The petitioner is
34187/2009 Bhat a party before a citizen of India
the High and a public B
Court) spirited
individual, social
worker and
environmentalist
who believes in c
the Rule of Law
and has
successfully
prosecuted a
number of Plls in
D
Karnataka High
Court, other High
Courts and the
Supreme Court
on issues of
protection of E
green belt, illegal
extraction of
monies from
citizens of
Bangalore, F
property taxes,
Illegal mining,
stray dog
menace,
development of G
tanks, shifting of
slaughter house,
caste based
I reservation, etc.
j
H
158 SUPREME COURT REPORTS [2013) 17 S.C.R.
A SLP (C) No. Joint Petitioner
286/2010 Action (respondent 6
Council, - Intervener
Kannur before the
High Court)
B
SLP (C) No. The Tamil Petitioner (not The petitioner is
872/2010 Nadu a party before a registered trust
Muslim the High working for the
Munnetra Court) betterment of the
Kazhagam
c poor and
downtrodden in
general and for
those belonging
to the minority
Muslim
D
community in
particular It is a
mass based
voluntary
organisation of
E Muslims of Tamil
Nadu functioning
since 1955 in
Tamil Nadu. The
preside.nt
F appeared before
the UN Minority
Rights Working
Group and the
organisation has
G set up a Tsunami
Relief Fund of Rs
7 million. It has
worked against
spread of AIDS
H and has worked
. SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 159
[GS. SINGHVI, J]
in blood donation A
and has been
given two awards
by the Tamil
Nadu State AIDS
Control Board. B
SLP (C) No. Raza Petitioner (not The petitioner is
873/2010 . Academy a party before an organisation
tlie High working for
Court) welfare of the
general public
c
and it has done
tremendous work
in public interest.
SLP (C) No. Krantikati Petitioner (not Krantikari D
3q216/200 Manuvadi a party before Manuwadi
Morcha the High Morch a
Party & Court) (Revolutionary
Anr. Manuist Front), is
a Hindutva E
political
organisation in
India. It is one of
the registered
unrecognized F
political parties in
India. The
president of
KMM is Ram
Kumar Bhardwaj,
G
grandson of
freedom fighter
Rudra Dutt
Bhardwaj.
H
160 SUPREME COURT REPORTS [2013] 17 S.C.R.
A CC No. Utkal Petitioner (not Note: There is no
19478/2009 Christian a party before information on
Council the High the petitioner in
rep. by Court) the SLP.
Secretary
B Miss
Jyotsna
Rani Patro
CC No. All India Petitioner (not The petitioner is
425/2010 Muslim a party before a registered
c Personal the High society
Law Board Court) estc;iblished to
protect and
preserve Muslim
Personal Laws. It
D strives to uphold
the traditional
values and ethos
of the Muslim
community and
E promotes
essential values
of Islam and also
a national ethos
among Muslims.
F The members of
the society are
religious scholars
(ulemas), Muslim
intellectuals and
G professionals
from different
disciplines.
SLP (C) No. Sh. S.K. Petitioner (not Petitioner is
20913/2009 Tijarawala a party before spokesperson of
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 161
[G.S. SINGHVI, J.]
A
the High Yoga Guru
Court) Swami Ramdev
Ji is running a
social welfare
trust in the name
of "Bharat 8
Swabhiman"
Patanjali
Yogpeeth Trust.
Petitioner is an
eminent social c
worker and write1
interested in
protecting cultura
values of the
Indian society. D
SLP (C) No. Apostolic Petitioner (not With a desire to
20914/2009 Churches a party before promote unity,
Alliance the High build
rep. by its Court) relationships, anc
E
bishop see increased
Sam T. cooperation
Varghese amongst
Churches, a few
pastors from
F
growing
independent
churches in
Kerala have
come together
and formed a G
body called the
"Apostolic
Churches
Alliance" (ACA).
The Alliance has H
162 SUPREME COURT REPORTS. [2013] 17 S.C.R.
A
been formed witt
the primary
purpose of
addressing
spiritual, legal or
B any other kind of
issue which may
be relevant to thE
Churches at any .
given time or
c place. The ACA
is a registered
body with nine
Pastors as
members of the
D Core Group and
is in its early
stages of growth.
Pastor Sam T.
Varghese of Life
E Fellowship,
Trivandrum,
serves as its
General
Overseer.
F SLP (C) No. Prof. Bhim Petitioner (not
25364/2009 Singh a party before
the High
Court)
G CC No. Sanatan Petitioner (not
14042/2009 Dharam a party before
Pritinidhi the High
Sabha Court)
Delhi
H (Registered)
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 163
[G.S. SINGHVI, J.]
16. ARGUMENTS A
16.1 Shri Amrendra Sharan, Senior Advocate appearing
for the appellant in Civil Appeal arising out of SLP(C)
No.24334/2009 - Delhi Commission for Protection of Child
Rights led arguments on behalf of those who have prayed for B
setting aside the impugned order. He was supported by Shri
V. Giri, Senior Advocate appearing for Apostolic Churches
Alliance [SLP(C) No. 20914/2009] and Utkal Christian Council
[SLP(C) No.19478/2009], Shri K. Radhakrishnan, Senior C
Advocate appearing for intervener - Trust God Missionaries,
and S/Shri. Sushi! Kumar Jain, counsel for the appellant -
Kranthikari Manuvadi Morcha Party (SLP(C) No.36216/2009),
Huzefa Ahmadi appearing for All India Muslim Personal Law
Board (SLP(C) No. CC425/2010), Purshottaman Mui Ioli D
appearing in person for Joint Action Council, Kannur (SLP (C)
No.286/2010), Ajay Kumar for the appellant- S.K. Tijarawala
(SLP(C) No.20913/2009), Praveen Agrawal, counsel for the
·appellant -Suresh Kumar Kaushal (SLP(C) No.15436/2009,
H.P. Sharma, counsel for the appellant- B.P. Singhal (SLP(C) E
No.22267/2009), K.C. Dua, counsel for appellant - S.D.
Pritinidhi Sabha Delhi (SLP(C) No.CC .14042/2009), PV.
Yogeswaran for appellant - Shim Singh (SLP(C) No.25346/
2009), Lakshmi Raman Singh, counsel for appellant - Tamil
Nadu Muslim Munn. Kazhgam and Mushtaq Ahmad, counsel F
for appellant - Raza Academy (SLP(C) No.873/2010). Shri
Amarendra Sharan made the following arguments:
16.2 That the High Court committed serious error by
declaring Section 377 IPC as violative of Articles 21, 14 and G
15 of the Constitution insofar as it criminalises consensual
sexual acts of adults in private .completely ignoring that the writ
petition filed by respondent no.1 did not contain foundational
H
164 SUPREME COURT REPORTS [2013] 17 S.C.R.
A facts necessary for pronouncing upon constitutionality of a
statutory provision. Learned counsel extensively referred to the
averments contained in the writ petition to show that respondent
no.1 had not placed any tangible material before the High Court
to show that Section 377' h~d been used for prosecution of
B 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.
c 16.3 The statistics incorporated in the affidavit filed on
behalf of NACO were wholly insufficient for recording a finding
that Section 377 IPC adversely affected control of HIV/AIDS
amongst the homosexual community and that decriminalization
0 will reduce thEj number of such cases.
16.4 The High Court is not at all right in observing that
Section 377 IPC obstructs personality development of
homosexuals or affects their self-esteem because that
E observation is solely based on the reports prepared by the
academicians and such reports could not be relied upon for
grant of a declaration that the se'ction impugned in the writ
petition was violative of Articles 14 and 15 of the Constitution.
In support of these arguments, learned counsel relied upon the
F judgments in Southern Petrochemical Industries v. Electricity
Inspector (2007) 5 SCC 447, Tamil Nadu Electricity Board v.
Status Spinning
, Mills (2008) .7 SCC 353 and Seema Silk
and Sarees v. Directorate of Enforcement (2008) 5 SCC 580.
G 16.5 That Section 377 !PC is gender neutral and covers
voluntary acts of carnal intercourse against the order of nature
irrespecti·, ; of the gender of the persons committing the act.
They pointed out that the section impugned in the writ petition
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 165
[G.S. SINGHVI, J.]
includes the acts of carnal intercourse between man and man, A
man and woman and woman and woman and submitted that '
no Constitutional right vests in a person to indulge in an activity
which has the propensity to cause harm and any act whicb has
the capacity to cause harm to others cannot be validated. They
emphasized that anal intercourse between two homosexuals B
is a high risk activity, which exposes. both the participating
homosexuals to the risk of HIV/AIDS and this becomes even
grave in case of a male bisexual having intercourse with female
partner who may not even be aware of the activity of her partner C
and is yet exposed to high risk of HIV/AIDS. They argued that
Section 377 IPC does not violate the right to privacy and dignity
guaranteed under Article 21 of the Constitution.
16.6 That the impugned order does not discuss the D
concept of "carnal intercourse against the order of nature" and
does not adequately show how the section violates the right to
privacy and that also 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 E
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.
F
16.7 That the legislature has treated carnal intercourse
against the order of nature as an offence and the High Court
has not given reasons for reading down the section. The
presumption of constitutionality is strong and the right claimed
should have been directly violated by the statute. Indirect G
violation is not sufficient for declaring Section 377 IPC violative
of Articles 14, 15 and 21 of the Constitution.
16.8 That Article 21 provides that the right to life and liberty
H
166 SUPREME COURT REPORTS [2013) 17 S.C.R.
A is ·subject to procedure prescribed by law. He referred to the
judgments of this Court in AK. Gopalan v. State of Madras
1950 SCR 88, R.C. Cooper v. Union of India (1970) 1 SCC
248, Maneka Gandhi v. Union of India (1978) 1 SCC 248
and submitted that Gopalan's case has not been overruled by
B Maneka Gandhi's case.
16.9 That the term used in Section 375 IPC, which defines
rape is 'sexual intercourse', whereas in Section 377 IPC the
expression is 'carnal intercourse'. In Khanu v. Emperor AIR
C 1925 (Sind), it was held that the metaphor 'intercourse' refers
to sexual relations between persons of different sexes where
the 'visiting member' has to be enveloped by the recipient
organization and submitted that carnal intercourse was
0 criminalized because such acts have the tendency to lead to
unmanliness and lead to persons not being useful in society.
16.1 O Relying .upon the dictionary meanings of the words
'penetration' and 'carnal', Shri Sharan submitted that any
E insertion into the body with the aim of satisfying unnatural lust
would constitute carnal intercourse.
16.11 Assailing the finding of the High Court that Section
377 IPC violates Article 14, Shri Sharan submitted that the
F section does not create a clause 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.
G Shri Sharan further argued that no class was targeted by
Section 377 IPC and no classification had been made and,
therefore, the finding of the High Court that this law offended
Article 14 as it targets a particular community known as
homosexuals or gays is without any basis.
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 167
[G.S. SINGHVI, J.]
16.12. Shri K. Radhakrishnan, learned senior counsel A
appearing for intervener in I.A. No.7 - Trust God Missionaries
argued that Section 377 IPC was enacted by the legislature to
protect social values and morals. He referred to Black's Law
Dictionary to show that 'order of nature' has been defined as
something pure, as distinguished from artificial and contrived. B
He argued that the basic feature of nature involved organs,
each of which had an appropriate place. Every organ in the
human body has a designated function assigned by nature.
The organs work in tand~m and are not expected to be abu~ed.
If it is abused, it goes against nature. The code of nature is
c
inviolable. Sex and food are regulated in society. What is pre-
ordained by nature has to be protected, and man has an
obligation to nature. He quoted a Sanskrit phrase which
transla_ted to "you are dust and go back to dust". Learned senior D
counsel concluded by emph'asising that if the declaration made
by the. High Court is approved, then India's social structure and
the institution of marriage will be detrimentally affected and
. young persons will be tempted towards homosexual activities.
E
16.13 Shri V. Giri, learned senior counsel argued that
Section 377 IPC does not classify people into groups but it
only describes an offence. He submitted that the High Court
made two wrong assumptions: one, that sexual orientation is
immutable and two, that sexual orientation can be naturally F
demonstrated only in a way as contemplated in Section 377
IPC. Learned senior counsel submitted that what has been
criminalized by Section 377 IPC is just the act, independent of
the sex of people or sexual orientation. Shri Giri further
submitted that sufficient evidence is not available to support G
the statement that Section 377 IPC helps with HIV/AIDS
prevention. He referred to the scientific study conducted by the
National Institute of Health on behavioral patterns and AIDS
H
168 SUPREME COURT REPORTS [2013] 17 S.C.R.
A which shows that HIV/AIDS is higher among MSM. Learned
counsel submitted that same sex is more harmful to public
health than opposite sex.
16.14 Shri Huzefa Ahmadi submitted that the right to
B sexual orientation can always be restricted on the principles of
morality and health. He referred to the constitutional assembly
debates on Article 15 to show that the inclusion of sexual
orientation in the term 'sex' was not contemplated by the
founding fathers. Shri Ahmadi also referred to the dissenting
C opinion given by Justice Scalia and Justice Thomas in
Lawrence v. Texas wherein it was stated that promotion of
majoritarian sexual morality was a legitimate state interest. Shri
Ahmadi stressed that Courts, by their very nature, should not
D undertake the task of legislating. He submitted that the Delhi
High Court was not clear if it was severing the law, or reading
it down. He argued that if the language of the section was plain,
there was no possibility of severing or reading it down. He
further argued that, irrespective of the Union Government's
E stand, so long as the law stands on the statute book, there
was a constitutional presumption in its favour.
16.15 Shri Purshottaman Mulloli submitted that the data
presented by NACO was fraudulent and manufactured and the
F disparities and contradictions were apparent.
16.16 Shri Sushil Kumar Jain argued that the High Court
was not at all justified in striking down Section 377 IPC on the
specious grounds of violation of Articles 14, 15 and 21 of t~e
G Constitution and submitted that the matter should have been
left to Parliament to decide as to what is moral and what is
immoral and whether the section in question should be retained
in the statute book. Shri Jain emphasized that mere possibility
of abuse of any particular provision cannot be a ground for
H
I
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 169
[G.S. SINGHVI, J.]
declaring it unconstitutional. A
16.17 Shri Praveen Aggarwal argued that all fundamental
rights operate in a square of reasonable restrictions. There is
censorship in case of Freedom of Speech and Expression.
High percentage of AIDS amongst homosexuals shows that B
the act in dispute covered under Section 377 IPC is a social
evil and, therefore, the restriction on it is reasonable.
17. Shri F.S. Nariman, Senior Advocate appearing for
Minna Saran and others (parents of Lesbian Gay Bisexual and c
Transgender (LGBT) children), led arguments on behalf of the
learned counsel who supported the order of the High Court.
Shri Nariman referred to the legislative history of the statutes
'enacted in Britain including Clauses 361 and 362 of the Draft
D
Penal.-Code, 1837 which preceded the enactment of Section
377 IPC in its present form and made the following arguments:
17.1 Interpretation of Section 377 is not in consonance
with the scheme of the IPC, with established principles of
E
interpretation and with the changing nature of society.
17.2 That Section 377 punishes whoever voluntarily has
carnal intercourse against the order of nature. This would render
liable to punishment- (a) Any person who has intercourse with
F
his wife other than penile - vaginal intercourse; (b) Any person
who has intercourse with a woman without using a
contraceptive.
17.3 When the same act is committed by 2 consenting
G
males, and not one, .it cannot be regarded as 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. H
170 SUPREME COURT REPORTS (2013] 17 S.C.R.
A 17.4 Section 377 must be read in light of constitutional
provisions which include the "right to be let alone". The
difference between obscene acts in private and public is
statutorily recognized in Section 294 IPC.
B 17.5 The phraseology of Section 377 ('Carnal intercourse
against the order of nature') is quaint and archaic, it should be
given a meaning which reflects the era when it was enacted.
(1860)
C 17.6 Section 377 should be interpreted in the context of
its placement in the IPC as criminalizing an act in some way
adversely affecting the human body and not an act which is an
offence against morals as dealt with in Chapter XIV. The
language of Section 377 is qua harm of adverse affection to
D the body which is the context in which the section appears. It
would have to be associated with sexual assault. 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
E Health, Safety, Convenience, Decency and Morals).
17.7 Chapter Headings and sub headings provide a guide
to interpreting the scope and ambit of Section 377. The
Petitioners rely on G.P. Singh, Principles of Statutory
F Interpretation, 13th Ed. 2012, pp 167 - 170, Raichuramatham
Prabhakar v. Rawatmal Dugar, (2004) 4 SCC 766 at para 14
and OPP v. Schildkamp, 1971 A.C. 1 at page 23. Headings
or Titles may be taken as a condensed name assigned to
indicate collectively the characteristics of the subject matter
G dealt with by the enactment underneath.
17.8 Section 377 is impermissibly vague, delegates policy
making powers to the police and results in harassment and
abuse of the rights of LGBT persons. The Petitioners rely on
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION ,171
[G.S. SINGHVI, J.]
State of MP v. Baldeo Prasad, (1961) 1 SCR 970 at 989 which A
held that, 'Where a statute empowers the specified authorities
to take preventive action against the citizens it is essential that
it should expressly make it a part of the duty of the said
authorities to satisfy themselves about the existence of what B
the statute regards as conditions precedent to the exercise of
the said authority. If the statute is silent in respect of one of
such. conditions precedent, it undoubtedly constitutes a serious
infirmity which would inevitably take it out of the provisions of
Article 19 (5).' c
17.9 Widespread abuse and harassment of LGBT
· persons u/s 377 has been incontrovertibly establ.ished. The
appellants rely on paras 21, 22, 50, 74 and 94 of the judgment
of the Division Bench of the Delhi High Court in Suresh Kumar D
Kaushal v. Naz Foundation which records evidence of various
instances of the use of Section 377 to harass members of the
LGBT community. These were based on paras 33 and 35 of
the Writ Petition filed by the Naz Foundation challenging the
vires of Section 377. It was supported by various documents E
brought on record, such as Human Rights Watch Report, July
2002 titled, "Epidemic of Abuse: Police Harassment of HIV/
AIDS Outreach Workers in India"; Affidavits giving instances
of torture and sexual abuse; Jayalakshmi v. State, (2007) 4
MLJ 849 dealing with sexual abuse and torture of a eunuch by F
police; An Order of a Metropolitan Magistrate alleging an
offence u/s 377 against two women even though there is an
express requirement of penetration under the Explanation to
Section 377.
G
17.10 Section 377 is ultra vires of Article 14 as there is
no classification apparent on the face of it.
H
172 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 17.11 The appellants contend that Section 377 is 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
B 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.
c 17 .12 The Section does not 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,
0 the home.
17.13 Section 377 targets the LGBT community by
criminalizing a closely held personal characteristic such as
sexual orientation. By covering within its ambit, consensual
E sexual acts by persons within the privacy of their homes, it is
repugnant to the right to equality.
18. Shri Shyam Divan, learned senior counsel representing
respondent No.11-Voices Agaif']st 377, made the following
F arguments:
18.1 Section 377 is ultra vires Articles 14, 15, 19(1)(a)
and 21 of the Constitution inasmuch as it violates the dignity
and personhood of the LGBT community. Sexual rights and
G sexuality are a part of human rights and are guaranteed under
Article 21. It is scientifically established that consensual same
sex conduct is not "against the order of nature". LGBT persons
do not seek any special rights. They merely seek their right to
equality of not to be criminalized for being who they are. Our 1
H
•
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 173
[G.S. SINGHVI, J.]
Constitution does not deny any citizen the right to fully develop A
relationships with other persons of the same gender by casting
a shadow of criminality on such sexual relationships. Justice
Vivian Bose in Krishna v. State of Madras, 1951 SCR 621
stated: 'When there is ambiguity or doubt the construction of
any clause in the chapter on Fundamental Rights, it is our duty B
to resolve it in favour of the freedoms so solemnly stressed.'
Section 377 in its interpretation and operation targets LGBT
persons and deprives them of their full moral citizenship. This
Court has developed great human rights jurisprudence in cases C
concerning under trials, scavengers and bonded labourers to
interpret the notion of 'dignity'. The Delhi High Court has
exercised its jurisdiction to separate out the offending portion
of Section 377 IPC. Shri Divan also referred to the legislative
history of Section 377 IPC and argued that this provision D
perpetuates violation of fundamental rights of LGBT persons.
Shri Divan referred to the incidents, which took place at
Lucknow (2002 and 2006), Bangalore (2004 and 2006), Delhi
(2006), Chennai (2006), Goa (2007), and Aligarh (2011) to
bring home the point that LGBT persons have been targeted E
by the police with impunity and the judiciary at the grass route
level has been extremely slow to recognize harassment suffered
by the victims. He also relied upon 'Homosexuality: A Dilemma
in Discourse, Corsini Concise Encyclopaedia of Psychology
F
and Behavioural Science', articles written by Prof. Upendra
Baxi and Prof. S.P. Sathe, 172nd Report of the Law
Commission which contained recommendation for deleting
Section 377 IPC and argued that Section 377 has been rightly
declared unconstitutional because it infringes right to privacy G
and right to dignity. He relied upon the statement made by the
Attorney General on 22.3.2012 that the Government of India
does not find any legal error in the order of the High Court and
accepts the same. Shri Divan further argued that Section 377
H
174 SUPREME COURT REPORTS [2013] 17 S.C.R.
A IPC targets LGBT persons as a class and is, therefore, violative
of Articles 14 and 15 of the Constitution.
19. Shri Anand Grover, learned senior counsel for
respondent No.1 made the following submissions:
B
19.1 Section 377 criminalises certain sexual acts covered
by the expressions "carnal intercourse against the order of
nature" between consenting adults in private. The expression
has been interpreted to imply penile non vaginal sex. Though
C facially neutral, these acts are identified and perceived by the
broader society to be indulged in by homosexual men.
19.2 By criminalising these acts which are an expression
of the core sexual personality of homosexual men, Section 377
D makes them out to be criminals with deleterious consequences
thus impairing their human dignity.
19.3 Article 21 protects intrusion into the zone of intimate
relations entered into in the privacy of the home and this right
E is violated by Section 377, particularly of homosexual men. The
issue is therefore whether protection of the privacy is available
to consenting adults who may indulge in "carnal intercourse
against the order of nature''.
F 19.4 Section 377 does not fulfil the just fair and reasonable
criteria of substantive due process now read into Article 21.
19.5 Criminalisation impairs health services for gay men
and thus violates their right to health under Article 21.
G
19.6 Section 377 is vague and seeks to introduce a
classification which is not based on rational criteria and the
object it seeks to advance is not a legitimate state object.
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 175
[G.S. SINGHVI, J.]
19. 7 The history of unnatural offences against the order of A
nature and their enforcement in India during the Mogul time,
British time and post independence, shows that the concept
was introduced by the British and there was no law criminalising
such acts in India. It is based on Judea-Christian moral and
B
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.
19.8 Though facially neutral, an analysis of the judgments
c
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.
D
19.9 The criminalisation of Section 377 impacts
homosexual men at a deep level and restricts their right to
dignity, personhood and identity, privacy, equality and right to
health by criminalising all forms of sexual intercourse that
homosexual men can indulge in as the penetrative sexual acts E
they indulge in are essentially penile non vaginal. It impacts
them disproportionately as a class especially because it
restricts only certain forms of sexual· intercourse that
heterosexual persons can indulge in. The expression of
homosexual orientation which is an innate and immutable F
characteristic of homosexual persons is criminalised by
Section 377. The section ends up criminalising identity and
not mere acts as it is usually homosexual or transgender
persons who are associated with the sexual practices
proscribed under Section 377 (relied on National Coalition G
for Gay and Lesbian Equality v. Minster of Justice & Ors.
1998 (12) BCLR 1517 (CC), Queen Empress v. Khairati 1884
ILR 6 ALL 204, Noshirwan v. Emperor'). While the privacy of
H
176 SUPREME COURT REPORTS [2013) 17 S.C.R.
A heterosexual relations, especially marriage are clothed in
legitimacy, homosexual relations are subjected to societal
disapproval and scrutiny. The section has been interpreted to
limit its application to same sex sexual acts (Govindrajulu, in
re, (1886) 1 Weir 382. Grace Jayamani v. E Peter AIR 1982
8 Kar 46, Lohana Vasantlal Devchand v. State). Sexual intimacy
is a core aspect of human experience and is important to
mental health, psychological well being and social adjustment.
By criminalising sexual acts engaged in by homosexual men,
C they are denied this fundamental human experience while the
same is allowed to heterosexuals. The section exposed
homosexual persons to disproportionate risk of prosecution
and harassment. There have been documented instances of
harassment and abuse, for example, Lucknow 2001 and
o Lucknow 2006.
19.10 Criminalisation creates a culture of silence and
intolerance in society and perpetuates stigma and
discrimination against homosexuals. Homosexual persons are
E reluctant to reveal their orientation to their family. Those who
have revealed their orientation are faced with shock, denial
and rejection and some are even pressurised through abuse
and marriage to cure themselves. They are subjected to
conversion therapies such as electro-convulsive therapy
F although homosexuality is no longer considered a disease or
a mental disorder but an alternate variant of human sexuality
and an immutable characteristic which cannot be changed.
Intact the American Psychiati-Y Association and American
Psychological Association filed an amicus brief in Lawrence
G v. Texas demonstrating the harm from and the groundlessness
of the criminalisation of same sex sexual acts.
19.11 Fundamental rights must be interpreted in an
H
I
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 177
[G.S. SINGHVI, J.]
expansive and purposive manner so as to enhance the dignity A
of the individual and worth of the human person. The
Constitution is a living document and.it should remain flexible
to meet newly emerging problems and challenges. The rights
under Articles 14, 19 and 21 must be read together. The right
to equality under Article 14 and the right to dignity and privacy 8
under Article 21 are interlinked and must be fulfilled for other
rights to be truly effectuated. International law can be used to
expand and give effect to fundamental rights guaranteed under
our Constitution. This includes UDHR, ICCPR and ICESCR C
which have been ratified by India. In particular the ICCPR and
ICESCR have been domesticated through enactment of
Section 2 of the Protection of Human Rights Act 1993 (Francis
Coralie Mullin v. Administrator, UT of Delhi (1981) 1 SCC
608, M. Nagaraj v. Uol (2006) 8 SCC 212, Maneka Gandhi D
v. Uol (1978) 1 SCC 248, Tractor Export v. Tarapore & Co.,
(1969) 3 SCC 562, Jolly George v. Bank of Cochin (1980) 2
SCC 360, Gramaphone Company of India Ltd. v. Birendra
Bahadur Pandey (1984) 2 SCC 534, Vellore Citizens Welfare
Forum v. Uol (1996) 5 SCC 647, Vishaka & Ors. v. State of E
Rajasthn & Ors (1997) 6 SCC 241, PUCL v. Uo/ &Anr(1997)
1 SCC 301, PUCL v. Uol & Anr (1997) 3 SCC 433, Apparel
Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759,
Pratap Singh v. State of Jharkhand (2005) 3 SCC 551, PUCL
v. Uol & Anr. (2005) 2 SCC 436, Entertainment Network (India) F
Ltd. v. Super Cassette Industries (2008) 12 SCC 10, Smt.
Se/vi v. State of Kamataka (2010) 7 SCC 263).
19.12 Section 377 violates the right to privacy, dignity and
G
health guaranteed under Article 21 of all persons especially
homosexual men.
19.13 Section 377 fails the criteria of substantive due
H
178 SUPREME COURT REPORTS [2013] 17 S.C.R.
A process under Article 21 as it infringes upon the private sphere
of individuals without justification which is not permissible. The
principle has been incorporated into Indian jurisprudence in
the last few years after the Maneka Gandhi case. The test of
whether a law is just fair and reasonable has been applied in
B examining the validity of state action which infringes upon the
realm of personal liberty (Mithu v. State of Punjab (1983) 2
SCC 277, Se/vi v. State of Karnataka (2010) 7 SCC 263,
State of Punjab v. Dalbir Singh (2012) 2 ~CALE 126, Rajesh
C Kumar v. State through Govt of NCT of Delhi (2011) 11
SCALE 182).
19.14 The guarantee of human dignity forms a part of
Article 21 and our constitutional culture. It seeks to ensure full
0 development and evolution of persons. It includes right to carry
on functions and activities which constitute the bare minimum
of expression of the human self. The right is intimately related
to the right to privacy. Dignity is linked to personal self
realisation and autonomy. Personal intimacies and sexual
E relations are an important part of the expression of oneself. In
light of the right to privacy, dignity and bodily integrity, there
should be no restriction on a person's decision to participate
or not participate in a sexual activity. By making certain sexual
relations between consenting adults a crime, Section 377 by
F its existence demeans and degrades people and imposes an
examination on sexual intercourse. This is regardless of
whether it is enforced. By denying sexual expression which is
an essential experience of a human being, Section 377 violates
the dignity of homosexual men in particular. Sex between two
G men can never be penile vaginal and hence virtually all pen~e
penetrative acts between homosexual men are offences. As
the society associates these acts with homosexual men they
become suspect of committing an offence thus creating fear
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 179
[G.S. SINGHVI, J.]
and vulnerability and reinforcing stigma of being a criminal (refer A
to Francis Coralie Mullin, Prem Shankar Shukla v. Delhi
f\dministration (1980) 3 SCC 526, Maharashtra University of
Health Science and Ors. v. Satchikitsa Prasarak Manda/ and
Ors. (2010) 3 SCC 786, Kharak Singh, Noise Pollution (V), In
re (2005) 5 SCC 733, DK Basu v. State of WB (1997) 1 SCC B
416, Gobind, Suchita Srivastava v. Chandigarh
Administration (2009) 9 SCC 1, Egan v. Canada (1995] 2
SCR 513, Law v. Canada (Minister of Employment and
Immigration (1999] 1 SCR '497, Lawrence v. Texas,. National C
Coalition of Gay and Lesbian Equality & Ors.).
19.15 Right to health is an inherent part of the right to life
under Article 21, it is recognised by the ICESC which has been
domesticated through Section 2 of the Protection of Human D
Rights Act 1993. Article 12 orthe ICESCR requires states to
take measures to protect and fulfil the health of all persons.
States are obliged to ensure the availability and accessibility
of health services, information, education facilitates and goods
without discrimination especially to vulnerable and marginalised E
sections of the population. The Govt. has committed to
addressing the needs of those at the greatest risk of HIV
including MSM and transgendered persons. The risk of
contracting HIV through unprotected penile anal sex is higher
than through penile vaginal sex. The HIV prevalence in MSM F
is 7.3% which is disproportionately higher than in that of the
general population which is less than 0.5%. The prevalence
continues to rise in many States and this is because of the
stigmatisation of the MSM population due to which they are
not provided with sexual health services including prevention G
services such as condoms. Due to pressure, some MSM also·
marry women thus acting as a bridge population.
Criminalisation increases stigma and discrimination and acts
H
180 SUPREME COURT REPORTS [2013] 17 S.C.R.
A as a barrier to HIV prevention programmes. Section 377
thwarts health services by preventing collection of HIV data,
impeding dissemination of information, forcing harassment,
threats and closure upon organisations who work with MSM,
preventing supply of condoms as it is seen as aiding an
B offence; limits access to health services, driving the community
underground; prevents disclosure of symptoms; increases
sexual violence and harassment against the community; and
creates an absence of safe spaces leading to risky sex. There
C are little if any negative consequences of decriminalisation and
studies have shown a reduction in STDs (sexually transmitted
diseases) and increased psychological adjustment.
19.16 Section 377 is vague and arbitrary. It is incapable
of clear construction such that those affected by it do not know
0
the true intention as it does not clearly indicate the prohibition.
The expression "carnal intercourse against the order of nature"
has not been defined in the statute. In the absence of legislative
guidance, courts are left to decide what acts constitute the
E same. A study of the cases shows that application has become
inconsistent and highly varied. From excluding oral sex to now
including oral sex, anal sex and penetration into artificial orifices
such as folded palms or between thighs by terming them as
imitative actors or acts of sexual perversity, the scope has been
F so broadened that there is no reasonable idea of what acts
are prohibited. It is only clear that penile vaginal acts are not
covered. This results in aroitrary application of a penal law
which is violative of Article 14 (refer to AK Roy v. Uol (1982).
1 SCC 271, KA Abbas v. Uol and Anr. (1970) 2 SCC 760,
G Harish Chandra Gupta v. State of UP AIR 1960 All 650,
Subhash Chandra and Anr. v. Delhi Subordinate Services
Selection Board (2009) 15 SCC 458).
19.17 Section 377 distinguishes between carnal
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 181
[G.S. SINGHVI, J.]
intercourse which is against the order of nature and not against A
the order of nature. This classification is unintelNgible. It is
arbitrary and not scientific. Due to an absence of legislative
guidance it is left to the Court to decide what constitutes
against the order of nature. The test in this regard has shifted
from acts without possibility of procreation to imitative acts to
B
acts amounting to sexual perversity. These parameters cannot
be discerned on. an objective basis. The object of the
classification which seeks to enforce Victorian notion of sexual
morality which included only procreative sex is unreasonable C
as condemnation of non procreative sex is no longer a
legitimate state object. Furthermore advancing public morality
is subjective and cannot inform intrusions in personal autonomy
especially since it is majoritarian. Even assuming that the
section was valid when it was enacted in 1861, the D
unreasonableness is pronounced with time and the justification
does not hold valid today. (refer to OS Nakara v. Uol (1983) 1
SCC 305, KartarSingh v. State of Punjab (1994) 3 SCC 569,
M Nagaraj v. Uol (2006) 8 SCC 212, Anuj Garg v. Hotel
Association of India (2008) 3 SCC 1, Deepak Sibal v. Punjab E
University (1989) 2 SCC 145, Suchita Srivastava v.
Chandigarh Administration).
19.18 Section 377 is disproportionate and discriminatory
in its impact on homosexuals. The law must not only be F
assessed on its proposed aims but also on its implications
and effects. Though facially neutral, the section predominantly
outlaws sexual activity between men which is by its very nature
penile non vaginal. While heterosexual persons indulge in oral
G
and anal sex, their conduct does not attract scrutiny except
when the woman is underage or unwilling. In fact, Courts have
even excluded married heterosexual couples from the ambit
of Section 377. When homosexual conduct is made criminal,
H
182 SUPREME COURT REPORTS [2013] 17 S.C.R.
A this declaration itself is an invitation to perpetrate discrimination.
It also reinforces societal prejudices. (Anuj Garg v. Hotel
Association of India, Peerless General Finance Investment
Co. Ltd. v. Reserve Bank of India (1992) 2 SCC 343, Grace
Jayamani v. EP Peter AIR 1982 Kant. 46, Lawrence v. Texas,
8 National Coalition for Gay and Lesbian Equality, Dhirendra
Nadan v. State-Criminal Case Nos.HAA0085 & 86 of 2005
(Fiji High Court).
19.19 Section 377 violates Article 15 by discriminating
C on the ground of sexual orientation as although facially neutral
it treats homosexual men unequally compared to heterosexuals
and imposes an unequal burden on them. The general purport
of Article 15 is to prohibit discrimination on the grounds
0 enumerated therein. It is contended that as Article 15(3) uses
the expression "women" the word sex in Article 15(1) must
partake the same character. However it is submitted that Article
15(3) must not be allowed to limit the understanding of Article
15(1) and reduce it to a binary norm of man and woman only.
E This becomes clear when Article 15(2) is applied to
transgendered persons who identify as a third gender. For
example, Government of India has introduced an option for
"others" in the sex column of the passport application form.
This can be achieved only if the expression "sex" is read to be
F broader than the binary norm of biological sex as man or
woman. The Constitution is a living document and the Court
can breathe content into rights. The underlying purpose against
sex discrimination is to prevent differential treatment for the
reasons of non conformity with normal or natural sexual or
G gender roles. Sex relations are intricately tied to gender
stereotypes. Accordingly discrimination on the ground of sex
necessarily includes discrimination on the basis of sexual
orientation. Like gender discrimination, discrimination on the
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 183
[G.S. SINGHVI, J]
basis of sexual orientation is directed against an immutable A
and core characteristic of human personality. Even international
law recognises sexual orientation as being included in the
ground "sex". The determination of impact of a legislation must.
be taken in· a contextual manner taking into account the content,
purpose, characteristics and circumstances of the law. Section B
377 does not take into account the differences in individuals
in terms of their sexual orientation and makes sexual practices
relevant to and associated wit~ a class of homosexual persons
criminal. It cr.iminalises acts which are normal sexual
c
expressions for homosexual men because they can only indulge
in penetrative acts which are penile non vaginal. Distinction
based on a prohibited ground cannot be allowed regardless
of how laudable the object is. If a law operates to discriminate
against some persons only on the basis of a prohibited ground, D
it must be struck down. (M Nagaraj v. Uol, Anuj Garg v. Hotel
Association of India, Toonen v. Australia, Egan v. Canada,
Vriend v. Alberta, Punjab Province v. Dau/at Singh AIR 1946
PC 66, State of Bombay v. Bombay Education Society [1955]
SCR 568 ). Shri Grover also submitted that the Courts in other E
countries have struck down similar laws that criminalise same-
sex sexual conduct on the ground that they violate the right to
privacy, dignity and equality.
20. Shri Ashok Desai, learned senior counsel, who F
appeared for Shri Shyam Senegal argued that Section 377
IPC, which is a pre-Constitution statute, should be interpreted
in a manner which may ensure protection of freedom and
dignity of the individuals. He submitted that the Court should
also take cognizance of changing values and temporal G
reasonableness of a statute. Shri Desai emphasized that the
attitude of the society is fast changing and the acts which were
treated as offence should no longer be made punitive. He
referred to medical literature to show that sexuality is a human
H
184 SUPREME COURT REPORTS [2013] 17 S.C.R.
A condition and argued that it should not be regarded as a
depravity or a sin or a crime. Learned senior counsel submitted
that in view of Section 377 IPC which stigmatized
homosexuality, not only homosexuals but their families face
stigma and discrimination. He referred to the recommendations
B made by 172nd Law Commission Report for deleting Section
377 IPC, the survey conducted by Outlook Magazine giving
the statistics of the persons who indulged in different ·sexual
practices, the support extended by the eminent persons
C including Swami Agnivesh, Soli J. Sorabjee (Senior Advocate),
Capt. Laxmi Sehgal, Aruna Roy, Prof. Amartya Sen and Prof.
Upendra Baxi for deleting Section 377 JPC and submitted that
the impugned order should be upheld. Learned senior counsel
further argued that Section 377 IPC, which applies to same
o sex relations between consenting adults violates the
constitutional guarantee of equality under Articles 14 and 15
and the High Court rightly applied Yogyakarta principles for
de-criminalisation of the section challenged in the writ petition
filed by respondent No.1. He supported the High Court's
E decision to invoke the principle of severability. Shri Ram
Jethmalani, Senior Advocate, who did not argue the case; but
filed written submissions also supported the impugned order
and argued that the High Court did not commit any error by
declaring Section 377 IPC as violative of Articles 14, 15 and
F 21 of the Constitution.
21. The learned Attorney General, who argued the case
as Amicus, invited our attention to affidavit dated 1.3.2012 filed
on behalf of. the Home Ministry to show that the Group of
G Ministers constituted for looking into the issue relating to
constitutionality of Section 377 JPC recommended that there
is no error in the impugned order, but the Supreme Court may
take final view in the matter. The learned Attorney General
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 185
[G.S. SINGHVI, J.]
submitted that the declaration granted by the High Court may A
not result in deletion of Section 377 IPC from the statute book,
but a proviso would have to be added to clarify that nothing
contained therein shall apply to any sexual C!ctivity between the
two consenting adults in private. Learned Attorney General also
B
emphasised that the Court must take cognizance of the
changing social values and reject the moral views prevalent in
Britain in the 18th century.
22. Shri P.P. Malhotra, learned Additional Solicitor
General, who appeared on behalf of the Ministry of Home
c
Affairs, referred to the affidavit filed before the Delhi High Court
wherein the Ministry of Home Affairs had opposed de-
criminalisation of homosexuality and argued that in its 42nd
Report, the Law Commission had recommended retention of D
Section 377 IPC because the societal disapproval thereof was
very strong. Learned Additional Solicitor General submitted that
the legislature, which represents the will of the people has
decided not to delete and it is not for the Court to import the
extra-ordinary moral values and thrust the same upon the E
society. He emphasized that even after 60 years of
independence, Parliament has not thought it proper to delete
or amend Section 377 IPC and there is no warrant for the High
Court to have declared the provision as ultra vires Articles 14, 15
and 21 of the Constitution. F
23. Shri Mohan Jain, learned Additional Solicitor General
who appeared on behalf of the Ministry of Health, submitted
that because of their risky sexual behaviour, MSM and female
sex workers are at a high risk of getting HIV/AIDS as compared G
to normal human beings. He pointed out that as in 2009, the
estimated number of MSM was 12.4 lakhs.
24. We have considered the arguments/submissions of
H
186 SUPREME COURT REPORTS [2013] 17 S.C.R.
A the learned counsel and perused the detailed written
submissions filed by them. We have also gone through the
voluminous literature placed on record and the judgments of
other jurisdictions to which reference has been made in the
impugned order and on which reliance has been placed by
8 the learned counsel who have supported the order under
challenge.
25. We shall first deal with the issue relating to the scope
of judicial review of legislations. Since Section 377 JPC is a
C pre-Constitutional legislation, it has been adopted after
enactment of the Constitution, it will be useful to analyse the
ambit and scope of the powers of the superior Courts to
declare such a provision as unconstitutional. Articles 13, 14,
0 15, 19, 21, 32, 226 and 372 of the Constitution, which have
bearing on the issue mentioned herein above read as under:
"13. Laws inconsistent with or in derogation of the
fundamental rights.-(1) All laws in force in the territory
E of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such
inconsistency, be void.
F (2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any Jaw
made in contravention of this clause shall, to the extent of
the contravention, be void.
G (3) In this Article, unless the context otherwise requires,-
(a) "law" includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the
territory of India the force of law;
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 187
[G.S. SINGHVI, J.]
(b) "laws in force" includes laws passed or made by a A
Legislature or other competent authority in the territory of
India before the commencement of this Constitution and
not previously repealed, notwithstanding that any such law
or any part thereof may not be then in operation either at B
all or in particular areas.
(4) Nothing in this Article shall apply to any amendment of
this Constitution made under Article 368.
14. Equality before iaw.- The State shall not deny to C
any person equality before the law or the equal protection
of the laws within the territory of India.
15. Prohibition of discrimination on grounds of
'
religion, race, caste, sex or place of birth- D
(1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or
any of them.
E
(2) No citizen shall, on ground only of religion, race, caste,
sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to -
F
(a) access to shops, public restaurants, hotels and places
of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places
of public resort maintained whole or partly out of State G
funds or dedicated to the use of general public.
(3) Nothing in this article shall prevent the State from
making any special provision for women and children.
(4) Nothing in this article or in clause {2) or article 29 shall
H
188 SUPREME COURT REPORTS [2013) 17 S.C.R.
A prevent the State from making any special provision for
the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes.
B (5) Nothing I this article or in sub-clause (g) of clause () of
article 19 shall prevent the State from making any special
provision; by law, for the advancement of any socially and
educationally backward classes of citizen or for the
Scheduled Castes or Scheduled Tribes in so far as such
c special provisions relate to their admission to educational
institutions including private educational institutions,
whether aided or unaided by the State, other than the
minority educational institutions referred to in Clause (1)
of article 30.
D
19. Protection of certain rights regarding freedom of
speech etc.- (1 )All citizens shall have the right-
(a) to freedom of speech and expression;
E
(b) to assemble peaceably anq without arms;
to form associations or unions;
(d) to move freely throughout the territory of India;
F
(e) to reside and settle in any part of the territory of
lndia;and
(f) omitted
G
(g) to practise any profession, or to carnf on any
occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 189
[G.S. SINGHVI, J.]
operation of any existing law, or prevent the State from A
making any law, in so far as such law imposes reasonable
. restrictions on the exercise of the right conferred by the
said sub-clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality or B
in relation to contempt of court, defamation or incitement
to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect
c
the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in
the interests of the sovereignty and integrity of India or
public order, reasonable restrictions on the exercise of
the right conferred by the said sub-clause. D
(4) Nothing in sub-clause of the said clause shall affect
the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, in
the interests of the sovereignty and integrity of India or E
public order or morality, reasonable restrictions on the
exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clauses (d) and (e) of the said clause
shall affect the operation of any existing law in so far as it F
imposes, or prevent the State from making any law
imposing, reasonable restrictions on the exercise of any
of the rights conferred by the said sub-clauses either in
the interests of the general public or for the protection of
G
the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect
the operation of any existing law in so far as it imposes,
H
190 SUPREME COURT REPORTS [2013] 17 S.C.R.
A or prevent the State from making any Jaw imposing, in the
interests of the general public, reasonable restrictions on
the exercise of the right conferred by the said sub-clause,
and, in particular, nothing in the said sub-clause shall affect
the operation of any existing Jaw in so far as it relates to,
B
or prevent the State from making any Jaw relating to, -
(i) the professional or technical qualifications necessary
for practising any profession or carrying on any occupation,
trade or business, or
c
(ii) the carrying on by the State, or by a corporation owned
or controlled by the State, of any trade, business, industry
or service, whether to the exclusion, complete or partial,
of citizens or otherwise.
D
21. Protection of life and personal liberty. - No person
shall be deprived of his life or personal liberty except
according to procedure established by law.
32. Remedies for enforcement of rights conferred by this
E
Part.-
(1) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred
by this Part is guaranteed.
F
(2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the
G
enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the
Supreme Court by clauses (1) and (2), Parliament may
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 191
[G.S. SINGHVI, J.]
by law empower any other court to exercise within the local A
limits of its jurisdiction all or any of the powers exercisable
by the Supreme Court under clause (2).
(4) The right guaranteed by this Article shall not be
suspended except as otherwise provided for by this B
Constitution.
226. Power of High Courts to issue certain writs.-
(1) Notwithstanding anything in Article 32, every High Court C
shall have power, throughout the territories in relation to
which it exercises jurisdiction, to issue to any. person or
authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, D
prohibition, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part
Ill and for any other purpose.
(2) The power conferred by clause (1) to issue directions, E
orders or writs to any Government, authority or person may
also be exercised by any High Court exercising jurisdiction
in relation to the territories within which the cause of action,
wholly or in part, arises for the exercise of such power,
F
notwithstanding that the seat of such Government or
authority or the residence of such person is not within those
territories.
(3) Where any party against whom an interim order, G
whether by way of injunction or stay or in any other manner,
is made on, or in any proceedings relating to, a petition
under clause (1), without-
(a) furnishing to such party copies of such petition and all H
192 SUPREME COURT REPORTS [2013] 17 S.C.R.
A documents in support of the plea for such interim order;
and
(b) giving such party an opportunity of being heard, makes
an application to the High Court for the vacation of such
B order and furnishes a copy of such application to the party
in whose favour such order has been made or the counsel
of such party, fhe High Court shall dispose of the
application within a period of two weeks from the date on
which it is received or from the date on which the copy of
c such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on
which the High Coul't is open; and if the application is not
so disposed of, the interim order shall, on the expiry of
D
thai period, or, as the case may be, the expiry of the said
next day, stand .vacated.
(4) The power conferred on a High Court by this Article
shall not be in derogation of the power conferred on the
E
Supreme Court by clause (2) of Article 32.
372. Continuance in force of existing laws and their
adaptation.-
F
(1) Notwithstanding the repeal by this Constitution of the
enactments referred to in
Article 395 but subject to the other provisions of, this
Constitution, all the law in force in the territory of India
G
immediately before the commencement ofthis Constitution
shall continue fn force therein until altered or repealed or
amended by a competent Legislature or other competent
authority.
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 193
[G.S. SINGHVI, J.]
(2) For the purpose of bringing the provisions of any law A
in force in the territory of India into accord with the
provisions of this Constitution, the President may by order
make such adaptations and modifications of such law,
whether by way of repeal or amendment, as may be
B
necessary or expedient, and provide that the law shall, as
from such date as may be specified in the order, have
effect subject to the adaptations and modifications so
made, and any such adaptation or modification shall not
be questioned in any court of law. c
(3) Nothing in clause (2) shall be deemed-
(a) to empower the President to make any adaptation or
modification of any law after the expiration of three years
D
from the commencement of this.Constitution; or
(b) to prevent any competent Legislature or other
competent authority from repealing or amending any law
adapted or modified by the President under the said
E
clause.
Explanation 1.-The expression "law in force" in this Article
shall include a law passed or made by a Legislature or
othar competent authority in the territory of India before
F
the commencement of this Constitution and not previously
repealed, notwithstanding that it or parts of it may not be
then in operation either at all or in particular areas.
Explanation 11.-Any law passed or made by a Legislature G
or other competent authority in the territory of India which
immediately before the commencement of this Constitution
had extra-territorial effect as well as effect in the territory
of India shall, subject to any such adaptations and
194 SUPREME COURT REPORTS (2013] 17 S.C.R.
A modifications as aforesaid, continue to have such extra-
territorial effect.
Explanation 111.-Nothing in this Article shall be construea
as continuing any temporary law in force beyond the date·
B fixed for its expiration or the date on which it would have
expired if this Constitution had not come into force.
Explanation IV.-An Ordinance promulgated by ihe
Governor of a Province under section 88 of tl:le
c Government of India Act, 1935, and in force immediately
before the commencement of this Constitution shall, unless
withdrawn by the Governor of the corresponding State
earlier, cease to operate at the expiration of six weeks .
from the first meeting after such commencement of the
D
Legislative Assembly of that State functioning under clause
(1) of Article 382, and nothing in this Article shall be
construed as continuing any such Ordinance in force
beyond the said period."
E
26. A plain reading of these Articles suggests that the High
Court and this 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
F Constitution to the extent that it takes away or abridges the
rights conferred by Part Ill of the Constitution. In fact a
constitutional duty has been cast upon this .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.
G 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
H
SURESH KUMAR KQUSHAL v. NAZ FOUNDATION 195
[G.S. SINGHVI, J.]
Challenges to the constitutionality of laws. This form of restraint A
has manifested itself in the principle of presumption of
constitutionality.
27.· The principle was succinctly enunciated by a
'
Constitutional Bench in Ram Krishna Dalmia v. Shri Justice B
S.R. Tendolkar and Ors. AIR 1958 SC 538 in the following
words:
''. .. (b) thatthere is always a presumption in favour of the
constitutionality of an enactment and the burden is upon C
him who attacks it to show that there has been a clear
transgression of the constitutional principles;
(c) that it must be presumed that the legislature
understands and correctly appreciates the need of its own D
people, that its laws are directed to problems made
manifest by experience and that its discriminations are
based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm E
and may confine its restrictions to those cases where the
need is deemed. to be the clearest;
(e) that in order to sustain the presumption of
ccinstitutionality the court may take into consideration F
matters of common knowledge, matters of common report,
the history of the times and may assume every state of
fa_l:ts which can be conceived existing at the time of
legislation; and
G
(f) that while good faith and knowledge of the existing
conditions on the part of a legislature are to be presumed,
if there is nothing on the face of the law or the surrounding
1-1
196 SUPREME COURT REPORTS [2013] 17 S.C.R.
A circumstances brought to the notice of the court on which
the classification may reasonably be regarded as based,
the presumption of constitutionality cannot be carried to
the extent of always holding that there must be some
undisclosed and unknown reasons for subjecting certairi
B individuals or corporations to hostile or discrimLnating
legislation."
The application of the above noted principles .. to pre-
Constitutional statutes was elucidated in the following words:
c
"18. It is neither in doubt nor in dispute that Clause 1 of
Article 13 of the Constitution of India in no uncertain term~
states that all laws in force in the territory of India
immediately before the commencement of the Constitution,
D in so far as they are inconsistent with the provisions of
Part Ill there, shall, to the extent of such inconsistency, be
void. Keeping in view the fact that the Act is a pre-
constitution enactment, the question as regards its·
constitutionality will, therefore, have to be judged as being
E
law in force at the commencement of the Constitution of
India [See Keshavan Madhava Menon v. The State of
Bombay - 1951CriLJ 680 . By reason of Clause 1 of
Article 13 of the Constitution of India, in the event, it be
F held that the provision is unconstitutional the same having
regard to the prospective nature would be void only with
effect from the commencement of the Constitution. Article
372 of the Constitution of India per force does not make
a pre-constitution statutory provision to be constitutional.
G It merely makes a provision for the applicability and
enforceability of pre-constitution laws subject of course to
the provisions of the Constitution and until they are altered,
repealed or amended by a competent legislature or other
competent authorities."
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 197
[G.S. SINGHVI, J.]
Referring to that case, the Court in Anuj Garg v. Hotel A
Association of India and Ors. (2008) 3 SCC 1, while dea~ing
with the constitutionality of Section 30 of Punjab Excise Act,
1914, this Court observed:
"7. The Act is a' pre-constitutional legislation. Although it B
is saved in terms of Article 372 of the Constitution,
challenge to its validity on the touchstone of Articles 14,
15 and 19 ?f the Constitu'tion of India, is permissible in
law: While embarking on the questions raised, it may be
pertinent to know that a statute although could have been C
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." D
In John Val/amattom and Anr. v. Union of India AIR 2003
SC 2902, this Court, while referring to an amendment made in
UK in relation to a provision which was in pari materia with
Section 118 of Indian Succession Act, observed: E
"The constitutionality of a provision, it is trite, will have to
be judged keeping in view the interpretative changes of
the statute affected by passage of time."
F
Referring to the changing legal scenario and having regard
to the Declaration on the Right to Development adopted by
the World Conference on .Human Rights as also Article 18 of
the United Nations Covenant on Civil and Political Rights, 1966,
this Court observed: G
"It is trite that having regard to Article 13(1) of the
Constitution, the constitutionality of the impugned
legislation is required to be considered on the basis of
H
198 SUPREME COURT REPORTS [2013] 17 S.C.R.
A laws existing on 26-1-1950, but while doing so the court
is not precluded from taking into consideration the
subsequent events which have taken place thereafter. It is
further trite that the law although may be constitutional
when enacted but with passage of time the same may be
B held to be unconstitutional in view of the changed
situation."
Presumption of constitutionality:
c 28. Every legislation enacted by Parliament or State
Legislature carries with it a presumption of constitutionality. This
is founded on the premise that the legislature, being a
representative body of the people and accountable to them is
aware of their needs and acts in their best interest within the
D
confines of the Constitution. 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
E 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. In light of
this, both pre and post Constitutional laws are manifestations
of the will of the people of India through the Parliament and
F are presumed to be constitutional.
29. The doctrine of severability and the practice of reading
down a statute both arise out of the principle of presumption
of constitutionality and are specifically recognized in Article 13
G which renders the law, which is pre-Constitutional to be void
only to the extent of inconsistency with the Constitution. In R.M .D.
Chamarbaugwalla v. The: Union of India (UOI) AIR 1957 SC
628, a Constitution Bench of this Court noted several earlier
judgments on the issue of severability and observed as follows:
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 199
[G.S. SINGHVI, J.]
"The doctrine of severability rests, as will presently be A
shown, on a presumed intention of the legislature that if a
part of a statute turns out to be void, that should not affect
the validity of the rest of it, and that that intention is to be
ascertained from the terms of the statute. It is the true
nature of the subject-matter of the legislation that is the B
determining factor, and while a classification made in the
statute might go far to support a conclusion in favour of
severability, the absence of it does not necessarily
preclude it.
c
When a statute is in part void, it will be enforced as
regards the rest, if that is severable from what is invalid. It
is immaterial for the purpose of this rule whether the
invalidity of the statute arises by reason of its subject-
D
matter being outside the competence of the legislature or
by reason of its provisions contravening constitutional
prohibitions.
26. That being the position in law,_ it is now necessary t6
E
consider whether the impugned provisions are severable
in their application to competitions of a gambling character,
assuming of course that the definition of 'prize competition'
in s. 2(d} is-wide enough to include also competitions
involving skill to a substantial degree. It will be useful for F
the determination of this question to refer to certain rules
of construction laid down by the American Courts, where
the question of severability has been the subject of
consideration in numerous authorities. They may be
summarised as follows: G
1. In determining whether the valid parts of a statute are
separable from the invalid parts thereof, it is the intention
of the legislature that is the determining factor. The test to
H
200 SUPREME COURT REPORTS [2013] 17 S.C.R ..
A be applied is whether the legislature would have enacted
the valid part if it had known that the rest of the statute
was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156;
Sutherland on Statutory Construction, Vol. 2, pp. 176-177.
B 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,
c what remains is in itself a complete code independent of
the rest, then it will be upheld notwithstanding that the rest
has become unenforceable. Vide Cooley's Constitutional
Limitations, Vol. 1 at pp. 360-361; Crawford on Statutory
Construction, pp. 217-218.
D
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
E
the failure of the whole. Vide Crawford on Statutory
Construction, pp. 218-219.
4. Likewise, when the valid and invalid parts of a statute
are independent and do not form part of a scheme but
F
what is left after omitting the invalid portion is so thin and
truncated as to be in substance different from what it was
· wheri it emerged out of the legislature, then also it will be
rejected in its entirety.
G
5. The separability of the valid and invalid provisions of a
statute does not depend on whether the law is enacted in
the same section or different sections; (Vide Cooley's
Constitutional Limitations, Vol.· 1, pp. 361-362); it is not
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 201
[G.S. SINGHVI, J.]
the form, but the substance of the matter that is material, A
· and that has to be ascertained on an examination of the
Act as a whole and of the setting of the relevant provisions
therein.
6. If after the invalid portion is expunged from the statute 8
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. Vide Sutherland on Statutory
Construction, Vol. 2, p. 194. C
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
D
preamble to it. Vide Sutherland on Statutory Construction,
Vol. 2, pp. 177-178."
30. Another significant canon of determination of
constitutionality is that the Courts would be reluctant to declare
E
a law invalid or ultra vires on account of unconstitutionality.
The Courts would accept an interpretation, which would be in
favour of constitutionality rat~er than the one which would render
the law unconstitutional. Declaring the law unconstitutional is
one of the last resorts taken by the Courts. The Courts would F
preferably put into service the principle of 'reading down' or
'reading into' the provision to maRe it effective, workable and
ensure the attainment of the object of the Act. These are the
principles which clearly emerge from the consistent view taken
by this Court in its various pronouncements including tlie recent G
judgment in Namit Sharma v. Union of India (2013)1 SCC 745.
In D.S. Nakara and Ors. v. Union oflndia (UOI) (1983) 1
SCC 305 a Constitufion Bench of this Court elucidated upon
H
202 SUPREME COURT REPORTS [2013] 17 S.C.R.
A the practice of reading down statutes as an application of the
doctrine of severability while answering in affirmative the
question wi'lether differential treatment to pensioners related
to the date of retirement qua the revised formula for computation
of pension attracts Article 14 of the Constitution. Some of the
8 observations made in that judgment are extracted below:
"66. If from the impugned memoranda the event of being
in service and retiring subsequent to specified date is
severed, all pensioners would be governed by the
c liberalised pension scheme. The pension will have to be
recomputed in accordance with the provisions of the
liberalised pension scheme as salaries were required to
be recomputed in accordance with the recommendation
D of the Third Pay Commission but becoming operative from
the specified date. It does therefore appear that the
reading down of impugned memoranda by severing the
objectionable portion would not render the liberalised
pension scheme vague, unenforceable or unworkable.
E
67. In reading down the memoranda, is this Court
legislating? Of course 'not' When we delete basis of
classification as violative of Article 14, we merely set at
naught the unconstitutional portion retaining the
F constitutional portion.
68. We may now deal with the last submission of the
learned Attorney General on the point. Said the learned
Attorney-General that principle of severability cannot be
G applied to augment the class and to adopt his words
'severance always cuts down the scope, never enlarges
it'. We are not sure whether there is any principle which
inhibits the Court from striking down an unconstitutional
part of a legislative action which may have the tendency
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 203
[G.S. SINGHVI, J.j
to enlarge the width and coverage of the measure. A
Whenever classification is held to be impermissible and
the measure can be retained by removing the
unconstitutional portion of classification, by striking down
words of limitation, the resultant effect may be of enlarging
the clas.s. In such a situation, the Court can strike down B
the words of limitation in an enactment. That is what is
called reading down the measure. We kinow of no principle
that 'severance' limits the scope of legislation and can
never enlarge it."
c
The basis of the practice of reading down was succinctly
laid down in Commissioner of Sales Tax, Madhya Pradesh,
Indore and Ors. v. Radhakrishan and Ors. (1979) 2 SCC 249
in the following words:
D
"In considering the validity of .a statute the presumption is
. in favour of its constitutionality and the burden is upon him
who attacks it to show that there has been a clear
transgression of constitutional principles. For sustaining
E
the presumption of constitutionality the Court may take into
C<Onsideration matters of common knowledge, matters of
common report, the history of the times and may assume
every state of facts which can be conceived it must always
be presumed that the Legislature understands and F
correctly appreciates the need of its own people and that
discrimination, if any, is based on adequate grounds. It is
well settled that courts will be justified in giving a liberal
interpretation to the section in order to avoid constitutional
invalidity. These principles have given rise to rule of G
reading down the section if it becomes necessary to
uphold the validity of the sections."
H
204 SUPREME COURT REPORTS (2013) 17 S.C.R.
A In Minerva Mills Ltd. and Ors. v. Union of India (UOI)
and Ors. (1980) 3 SCC 625, the Court identified the limitations
upon the practice of reading down:
"69. The learned Attorney General and the learned Solicitor
B General strongly impressed upon us that Article 31C
should be read down so as to save it from the challenge
of unconstitutionality. It was urged that it woi.ild be legitimate
to read into that Article the intendment that only such laws
would be immunised from the challenge under Articles 14
c and 19 as do not damage or destroy the basic structure
of the Constitution. The principle of reading down the
provisions of a law for the purpose of saving it from a
constitutional chaflenge is well-known. But we find it
impossible to accept the contention of the learned Counsel
D
in this behalf because, to do so will involve a gross
distortion of the principle of reading down, depriving that
doct~ine of its only or true rationale when words of width
are used inadvertently. The device of reading down is not
E to be resorted to in order to save the susceptibilities of
the law makers, nor indeed to imagine a law of one's liking
to have been passed. One must at least take the
Parliament at its word when, especially, it undertakes a
constitutional amendment."
F
This was further clarified in Delhi Transport Corporation
v. D.T.C. Mazdoor Congress and Ors. 1991 Supp (1) SCC
600. In his concurring opinion, Ray, J. observed:
G "On a proper consideration of the cases cited hereinbefore
as well as the observations of Seervai in his book
'Constitutional Law of India' and also the meaning that has
been given in the Australian Federal Constitutional Law
by Coin Howard, it is clear and apparent that where any
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 205
[G.S. SINGHVI, J.]
term has been used in the Act which per se seems to be A
without jurisdiction but can be read down in order to make
it constitutionally valid by separating and excluding the part
which is invalid or by interpreting the word in such a
fashion in order to make it constitutionally valid and within
B
jurisdiction of the legislature which passed the said
enactment by reading down the provisions of the Act. This,
however, does not under any circumstances mean that
where the plain and literal meaning that follows from a bare
reading of the provisions of the Act, Rule or Regulation
c
that it confers arbitrary, uncancalised, unbridled,
unrestricted power to. terminate the services of a
permanent employee without recording any reasons for
the·same and without adhering to the principles of natural
justice and equality before the law as envisaged in Article o
14 of the Constitution, cannot be read down to save the
said provision from constitutional invalidity by bringing or
adding words in the said legislation such as saying that it
implies that reasons for the order of termination have to
be recorded. In interpreting the provisions of an Act, it is E
not permissible where the plain language of the provision
gives a clear and unambiguous meaning can be
interpreted by reading down and presuming c;ertain
expressions in order to save it from constitutional invalidity."
F
31. From the above noted judgments, the following
principles can be culled out:,
(i) The High Court and Supreme· Court of India are
empowered to declare as void any lav.,t, whether G
enacted prior to the enactment of the Constitution
or after. Such power can be exercised. to the extent
of inconsistency with the Constitution/contravention
of Part Ill.
H
206 SUPREME COURT REPORTS [2013) 17 S.C.R.
A (ii) There is a presumption of constitutionality in favour
of all laws, including pre-Constitutional laws as the
Parliament, in its capacity as the representative of
the people,. is deemed to act for the benefit of the
people in light of their needs and the constraints of
B
the Constitution.
(iii) The doctrine of severability seeks to ensure that
only that portion of the law which is unconstitutional
is so declared and the remainder is saved. This
c doctrine should be applied keeping in mind the
scheme and purpose of the law and the intention
of the Legislature and should be avoided where
the two portions are inextricably mixed with one
D another.
(iv) The court can resort to reading down a law in order
to save it from being rendered unconstitutional. But
while doing so, it cannot change the essence of
E the law and create a new law which in its opinion
is more desirable.
32. Applying the afore-stated principles to the case in
hand, we deem it proper to observe that while the High Court
F and this Court are empowered to review the constitutionality
of Section 377 IPC and strike it down to the extent of its
inconsistency with the Constitution, self restraint must be
exercised and the analysis must be guided by the presumption
of constitutionality. After the adoption of the IPC in 1950, around
G 30 amendments have been made to the statute, the most recent
being in 2013 which specifically deals with sexual offences, a
category to which Section 377 IPC belongs. The 172nd Law
Commission Report specifically recommended deletion of that
section and the issue has repeatedly come up for debate.
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 207
[G.S. SINGHVI, J.]
However, the Legislature has chosen not to amend the law or A
revisit it. This shows that Parliament, which is undisputedly ttie
representative body of the people of India has not thought it
proper to delete the provision. Such a conclusion is further
strengthened by the fact that despite the decision of the Union
of India to not challenge in appeal the order of the Delhi High B
Court, the Parliament has not made any amendment in the law.
While this does not make the law immune from constitutional
challenge, it must nonetheless guide our understanding of
character, s9ope, ambit and import.
c
33. It is, therefore, apposite to say 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
D
legitimacy of its purpose and its need.
34. We may now notice the relevant provisions of the IPC.
"Section 375. Rape.-A man is said to commit "rape" who,
except in the case hereinafter excepted, has sexual E
intercourse with a woman under circumstances falltng
under any of the six following descriptions:-
First-Against her will.
F
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested in fear of death or of hurt.· G
Fourthly.-With her consent, when the man knows that he
is not her husband, and that her consent is given because
she believes that he is another man to whom she is or
H
208 SUPREME COURT REPORTS [2013] 17 S.C.R.
A believes herself to be lawfully married.
Fjfthly.-With her consent, when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication
or the administration by him personally or through another
B of any stupefying or unwholesome substance, she is
unable to understand the nature and consequences of that
to which she gives consent.
Sixthly.-With or without her consent, when she is under
C sixteen years of age.
Explanation.-Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.
D Exception.-Sexual intercourse by a man with his own wife,
the wife not being under fifteen years of age, is not rape.
376. Punishment for rape.-(1) Whoever, except in the
cases provided for by sub-section (2), commits rape shall
E be punished with imprisonment of either description for a
term which shall not be less than seven years but which
may be for life or for a term which may extend to ten years
and shall also be liable to fine unless the woman raped is
his own wife and is not under twelve years of age, in which
F case, he shall be punished with imprisonment of either
description for a term which may extend to two years or
with fine or with both:
Provided that the court may, for adequate and special
G reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven
years.
(2) Whoever,-
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 209
[G.S. SINGHVI, J.]
(a) being a police officer commits rape- A
(i) within the limits of the police station to which he is
appointed; or
.;.
(ii) in the premises of any station house whether or not B
situated in the police station to which he. is appointed; or
(iii) on a woman in his custody or in the custody of a police
officer subordinate to him; or
c
(b) being a public servant, takes advantage of his official
position and commits rape on a woman in his custody as
such public servant or in the custody of a public servant
subordinate to him; or
D
(c) being on the management or on the staff of a jail,
remand home or other place of custody established by or
under any law for the time being in force or of a women's
or children's institution takes advantage of his official
position and commits rape on any inmate of such jail, E
remand home, place or institution; or
'(d) being on the management or on the staff of a hospital,
takes advantage of his official position and commits rape
on a woman in that hospital; or F
(e) commits rape on a woman knowing her to be pregnant;
or
(f) commits rape on a woman when she is under twelve G
years of age; or
(g) commits gang rape,
H
210 SUPREME COURT REPORTS [2013] 17 S.C.R.
A shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be
for life and shall also be liable to fine:
Provided that the court may, for adequate and special
B reasons to be mentioned in the judgment, impose a
sentence of imprisonment of either description for a term
of less than ten years.
Explanation 1.-livhere a women's is raped by one or more
C in a group of persons acting in furtherance of their common
intention, each of the persons shall be deemed to have
committed gang rape within the meaning of this sub-
section.
D Explanation 2.-"women's or children's institution" means
an institution, whether called and orphanage or a home
for neglected women or children or a widows' home or by
any other name, which is established and maintained for
the reception and care of women or children.
E
Explanation 3.-"hospital" means the precincts of the
hospital and includes the precincts of any institution for
the reception and treatment of persons during
convalescence or of persons requiring medical attention
F
or rehabilitation.
377. Unnatural offences.-Whoever voluntarily has
carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment
G
for life, or with imprisonment of either description for a
term which may extend to ten years, and shall also be
liable to fine.
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 211
[GS. SINGHVI, J.]
Explanation.-Penetration is sufficient to constitute the A
carnal intercourse necessary to the offence described in
this section."
35. Before proceeding further, we may also notice
dictionary meanings of some words and expressions, B
which have bearing on this case. .....
Buggery - a carnal copulation against nature; a man or
a woman with a brute beast, a man with a man, or man
unnaturally with a woman. This term is often used C
interchangeably with "sodomy". (Black's Law Dictionary
6th Edn. 1990)
Carnal - Pertaining to the body, its passions and its
appetites animal; fleshy; sensual; impure; sexual. People D
v. Battilana, 52 Cal. App.2d 685, 126 P.2d· 923, 928
(Black's Law Dictionary 6th edn. 1990)
Carnal knowledge - Coitus; copulation; the act of a man
having sexual bodily connections with a woman; sexual E
intercourse. Carnal knowledge of a child is unlawful sexual
intercourse with a female child under the age of consent.
It is a statutory crime, usually a felony. Such offense is
popularly known as "statutory rape". While penetration is
an essential element, there is "carnal knowledge" if there F
is the slightest penetration of the sexual organ of the
female by the sexual organ of the male. State v. Cross,
2000 S.E.2d 27, 29. It is not necessary that the vagina be
entered or that the hymen be ruptured; the entering of the
G
vulva or labia is sufficient. De Armond v. State, Oki. Cr.,
285 P.2d 236. (Black's Law Dictionary 6th edn. 1990)
Nature - (1) A fundamental quality that distinguishes one
H
212 SUPREME COURT REPORTS [2013] 17 S.C.R.
A thing from another; the essence of something. (2)
Something pure or true as distinguished from something
artificial or contrived. (3) The basic instincts or impulses
of someone or something (Black's Law Dictionary 9th
edn).
B
Legislative History Of Section 377
England
c 36. The first records of sodomy as a crime at Common
Law in England were chronicled in the Fleta, 1290, and later
in the Britton, 1300. Both texts prescribed that sodomites should
be burnt alive. Such offences were dealt with by the
ecclesiastical Courts.
D
The Buggery Act 1533, formally an Act for the punishment
of the vice of Buggerie (25 Hen. 8 c. 6), was an Act of the
Parliament of England that was passed during the reign of
Henry VIII. It was the country's first civil sodomy law. The Act
E defined buggery as an unnatural sexual act against the will of
God and man and prescribed capital punishment for
commission of the offence. This Act was later defined by the
Courts to include only anal penetration and bestiality. The Act
remained in force until its repeal in 1828.
F
The Buggery Act of 1533 was re-enacted in 1563 by
Queen Elizabeth I, after which it became the charter for the
subsequent criminalisation of sodomy in the British Colonies.
Oral-genital sexual acts were removed from the definition of
G buggery in 1817.
The Act was repealed by Section 1 of the Offences against
the Person Act 1828 (9 Geo.4 c.31) and by Section 125 of the
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 213
[G.S. SINGHVI, J.]
Criminal Law (India) Act 1828 (c.74). It was replaced by Section A
15 of the Offences against the· Person Act 1828, and ection
63 of the Criminal Law (India) Act 1828, which provided that
buggery would continue to be a capital offence.
With the enactment of the Offences against the Person B
Act 1861 buggery was no longer a capital offence in England
and Wales. It was punished with imprisonment from 10 years
to life.
c
37. The offence of sodomy was introduced in India on
25. 7 .1828 through the Act for Improving the Administration of
Criminal Justice in the East Indies (9.George.IV).
D
Chapter LXXIV Clause LXlll "Sodomy" - "And it be
enacted, that every person convicted of the abominable crime
of buggery committed with either mankind or with any animal,
shall suffer death as a felon".
E
In 1837, a Draft Penal Code was prepared which included:
Clauses 361 - "Whoever intending to gratify unnatural lust,
touches for that purpose any person or any animal or is by his
own consent touched by any person· for the purpose of gratifying
unnatural lust, shall be punished with imprisonment of either F
description for a term which may extend to fourteen years, and
must not be less than two years"; and Clause 362 - "Whoever
intending to gratify unnatural lust, touches for that purpose any
person without that person's free and intelligent consent, shall G
be punished with impr.isonment of either description for a term
which may extend to life and must not be less than seven years,
and shall also be liable to fine."
In Note M of the Introductory Report of Lord Macaulay to
H
214 SUPREME COURT REPORTS (2013] 17 S.C.R.
A the Draft Code these clauses were left to his Lordship in Council
without comment observing that
"Clauses 361 and 362 relate to an odious class of offences
respecting which it is desirable that as little as possible
B be said. We leave without comment to the judgment of
his Lordship in Council the two Clauses which we have
provided for these offences. We are unwilling to insert,
either in the text, or in the notes, anything which could have
given rise to public discussion on this revolting subject;
c as we are decidedly of the opinion that the injury which
would be done to the morals of the community by such
discussion would far more than compensate for any
benefits which might be derived from legislative measures
framed with the greatest precision."
D
[Note M on Offences Against the Body in Penal Code of
1837 - Report of the Indian Law Commission on the Penal
Code, October 14, 1837.]
E
However, in Report of the Commissioner's Vol XXVlll ii
was observed that the clauses and the absence of comments
had created "a most improper ambiguity". Some members
noted that the existing law on the subject is dead letter and
F also that the said offence had been omitted in revised statutes
of Massachusetts and does not appear in the French Penal
Code unless the sufferer is below 10 years of age.
"451. The Law Commissioners observe that Clauses 361
G and 362 relate to an odious class of offences, respecting
which it is desirable that as little as possible should said.
They therefore leave the provisions proposed therein
without comment to the judgment of the governor-General
in Council. Mr A.O. Campbell in concurrence with Mr.
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 215
[G.S. SINGHVI, J.]
Blane, censures the false delicacy which has in their A
•
opinion caused a most improper ambiguity in these
clauses, leaving it uncertain whether they apply to the mere
indecent liberties, or extend to.the actual commission of
an offence of the nature indicated.
B
452. It appears to us clear enough, that it was meant to
strike at the root of the offence by making the first act
tending to it liable to the same punishment, if the Judge
shall deem it proper, as the offence actually accomplished.
This is a new principle, and it would have been better if C
the Commissioners had explained for what reason they
adopted it, in respect to the offences here contemplated
in particular. We conceive that there is a very weighty
objection to the clauses in question, in the opening which
D
they will afford to calumny, if for an act so slight as may
come within the meaning of the word, "touches", a man
may be exposed to such a revolting charge and suffer the
ignominy of a public trial upon it.
E
453. Colonel Sleeman advises the omission of both these
clauses, deeming it most expedient to leave offences
against nature silently to the odium of society. It may give
weight to this suggestion to remark that the existing law
on the subject is almost a dead letter, as appears from F
the fact that in three years only six cases came before the
Nizamut Adawlut at Calcutta, although it is but true, we
fear that the frequency of the abominable offence in
question "remains" as Mr AD Campbell expresses it, "'a
horrid stain upon the land. G
454. Mr. Livingstone, we observe, makes no mention of
offences of this nature in his code for Louisiana, and they
are omitted in the revised statutes of Massachusetts, of
H
216 SUPREME COURT REPORTS [2013] 17 S.C.R.
A which the Chapter "of offences against the Lives and
Persons of Individuals" is appended to the 2d Report of
the English Criminal Law Commissioners. By the French
Penal Code, offences of this description do not come
within the scope of the law, unless they are effected or
B attempted by violence, except the sufferer be under the
age of ten years."
[Comment of the Law Commissioners on clauses 361 and
362 in Report on the Indian Penal Code, 1848.]
c
38. The IPC along with Section 377 as it exists today was
passed by the Legislative Council and the Governor General
assented to it on 6.10.1860. The understating of acts which
fall within the ambit of Section 377 has changed from non-
D procreative (Khanu v. Emperor) to imitative of sexual
intercourse (Lohana Vasantlal v. State AIR 1968 Guj 352) to
sexual perversity (Fazal Rab v. State of Bihar AIR 1963, Mihir
v. Orissa 1991 Cri LJ 488). This would be illustrated by the
E following judgments:
R. V. Jacobs (1817), Russ. & Ry. 331, C. C. R. -The
offence of Sodomy can only be committed per anum.
Govindarajula In re. (1886) 1 Weir 382-lnserting the penis
F in the mouth would not amount to an offence under Section
377 IPC.
Khanu v. Emperor AIR 1925 Sind 286.
G ''The principal point in this case is whether the accused
(who is clearly guilty of having committed the sin of
Gomorrah coitus per os) with a certain little child, the
innocent accomplice of his abomination, has thereby
H
SURESH KUMAR_ KOUSHAL v. NAZ FOUNDATION 217
[G.S. SINGHVI, J.]
committed an offence under Section 377, Indian Penal A
Gode.
Section 377 punishes certain persons who have carnal
intercourse against the order of nature with inter alia human
beings. Is the act here committed one of carnal B
intercourse? If so, it is clearly against the order of nature,
because the natural object of carnal intercourse is that
there should be the possibility of conception of human
beings which in the ca~e of coitus per os is impossible".
c
"Intercourse may be defined as mutual frequent action by
members of independent organisation. Commercial
intercourse is thereafter referred to; emphasis is made
on the reciprocity".
D
"By metaphor the word' 'intercourse' like the word
'commerce' is applied to the relations of the sexes. Here
also 'there is the temporary visitation of one organism by
a member of other organisation, for certain' clearly defined
E
and limited objects. The primary object of the visiting
organization is 'to obtain euphoria by means of a detent
of the nerves consequent on the sexual crisis'."
"But there is no intercourse unless the visiting member is
F
enveloped at least partially by the visited organism, for
intercourse connotes reciprocity. Looking at the question
in this way it would seem that sin of Gomorrah is no less
carnal intercourse than the sin of sodomy".
G
"it is to be remembered that the Penal Code does not,
except in Section 377, render abnormal sexual vice
punishable at all. In England indecent assaults are
punish;:ible very severely. It is possible that under the Penal
H
218 SUPREME COURT REPORTS [2013] 17 S.C.R.
A Code, some cases might be met by prosecuting the
offender for simple assault, but that is a compoundable
offence and in any case the patient could in no way be
punished. It is to be supposed that the Legislature intended
that a Tegellinus should carry on his nefarious profession
B perhaps vitiating and depraving hundreds of children with
perfect immunity?
I doubt not therefore, that cotius per os is punishable under
Section 377, Indian Penal Code."
c
Khandu v. Emperor 35 Cri LJ 1096: (AIR 1934 Lah 261)-
"Carnal intercourse with a bullock through nose is an unnatural
offence punishable under Section 377, Penal Code."
D Lohana Vasant/al Devchand v. The State AIR 1968 Guj
252.
In this case, there were three accused. Accused 1 and 2
had already committed the offence, in question, which was
E carnal intercourse per anus, of the victim boy. The boy began
to get a lot of pain and consequently, accused 2 could not
succeed having that act. He therefore voluntarily did the act in
question by putting his male organ in the mouth of the boy and
F there was also seminal discharge and the boy had to vomit it
out. The question that arose for consideration therein was as
to whether the insertion of the male organ by the second
accused into the orifice of the mouth of the boy amounted to
an offence under Section 377 IPC.
G
The act was the actual replacement of desire of coitus
and would amount to an offence punishable under Section 377.
There was an entry of male penis in the orifice of the mouth of
the victim. There was the enveloping of a visiting member by
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 219
[G.S. SINGHVI, J]
the visited organism. There was thus reciprocity; intercourse A
connotes reciprocity. It could, therefore, be said that the act in
question amounted to an offence punishable under Section 377.
What was sought to be conveyed by the explanation was
that even mere penetration would be sufficient to constitute B
-:arnal intercourse, necessary to the offence referred to in
Section 377. Seminal discharge, i.e., the full act of intercourse
was not the essential ingredient to constitute an offence in
question.
c
It is true that the theory that the sexual intercourse is only
meant for the purpose of conception is an out-dated theory.
But, at the same time it could be said without any hesitation of
contradiction that the orifice of mouth is not, according to
nature, meant for sexual or carnal intercourse. Viewing from D
that aspect, it could be said that this act of putting a male-
organ in the mouth of a victim for the purposes of satisfying
sexual appetite would be an act of carnal intercourse against
the order of nature.
E
In State of Kera/a v. Kundumkara Govindan and Anr.,
1969 Cri LJ 818, the Kerala High Court observed:
"18. Even if I am to hold that there was no penetration into
F
the vagina and the sexual acts were committed only
between the thighs, I do not think that the respondents can
escape conviction under Section 377 of the Penal Code.
The counsel of the respondents contends (in this argument
the Public Prosecutor also supports him) that sexual act G
between the thighs is not intercourse. The argument is that
for intercourse there must be encirclement of the male
organ by the organ visited; and that in the case of sexual
act· between the thighs, there is no possibility of
H
220 SUPREME COURT REPORTS [2013] 17 S.C.R.
A penetration.
19. The word 'intercourse' means 'sexual connection'
(Concise Oxford Dictionary). In Khanu v. Emperor AIR
1925 Sind 286 the meaning of the word 'intercourse' has
B been considered:
Intercourse may be defined as mutual frequent action by
members of independent organization.
c Then commercial intercourse, social intercourse, etc. have ·
been considered; and then appears:
By a metaphor the word intercourse, like the word
commerce, is applied to the relations of the sexes. Here
D also there is the temporary visitation of one organism by
a member of the other organization, for certain clearly
defined and limited objects. The primary object of the
visiting organization is to obtain euphoria by means of a
detent of the nerves consequent on the sexual crisis. But
E there is no intercourse unless the visiting member is
enveloped at least partially by the visited organism; for
intercourse connotes reciprocity.
Therefore, to decide whether there is intercourse or not,
F what is to be considered is whether the visiting organ is
enveloped at least partially by the visited organism. In
intercourse between the thighs, the visiting male organ is
enveloped at least partially by the organism visited, the
thighs: the thighs are kept together and tight.
G
20. Then about penetration. The word 'penetrate' means
in the concise Oxford Dictionary 'find access into or
through, pass through.' When the male organ is inserted
H
.. SURESH KUMAR KOUSHAL v. NAZ FOUNDAHON 221
[G.S. SINGHVI, J.]
between the thighs kept together and tight, is there no A
penetration? The word 'insert' means place, fit, thrust.'
Therefore, if the male organ is 'inserted' or 'thrust' between
the thighs, there is 'penetration' to constitute unnatural
offence.
B
21. Unnatural offence is defined in Section 377 of the
Penal Code; whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal
commits unnatural offence. The act of committing
intercourse .between the thighs is carnal intercourse
c
against the order of nature. Therefore committing
intercourse by inserting the male organ between the thighs
of another is an unnatural offence. In this connection, it
may be noted that the act in Section 376 is "sexual D
intercourse" and the act in Section 377 is carnal
intercourse against the order of nature."
22. The position in English law on this question has been
brought to my notice. The old decision of Rex v. Samuel E
I
Jacobs (1817) Russ & Ry 381 CCE lays down that
penetration through the mouth does not amount to the
offence of sodomy under English law. The counsel
therefore argues that sexual intercourse between the thighs
cannot also be an offence under Section 377 of the Penal F
Code. In Sirkar v. Gula Mythien Pillai Chaithu Maho. mathu
1908 TLR Vol XIV Appendix 43 a Full Bench of the
Travancore High Court held that having connection with a ·
person in the mouth was an offence under Section 377 of
the Penal Code. In a short judgment, the learned Judges G
held that it was unnecessary to refer to English Statute
Law and English text books which proceeded upon an
interpretation of the words sodomy, buggery and bestiality;
H
222 SUPREME COURT REPORTS (2013] 17 S.C.R.
A and that the words used in the Penal Code were very aim
pie and died enough to include all acts against the order
of nature. My view on the question is also that the words
of Section 377 are simple and wide enough to include
any carnal intercourse again tithe order of nature within
B its ambit. Committing intercourse between the thighs of
another is carnal intercourse against the order of nature."
In Fazal Rab Choudhary v. State of Bihar (1982) 3 SCC
9 - While reducing the sentence of the appellant who was
C convicted for having committed an offence under Section 377
/PC upon a young boy who had come to his house to take a
syringe, the Court observed:
"3. The offence is one under Section 377 1.P.C., which
D implies sexual perversity. No force appears to have been
used. Neither the notions of permissive society nor the
fact that in some countries homosexuality has ceased to
be an offence has influenced our thinking. However in
E judging the Depravity of the action for determining quantum
of sentence, all aspects of the matter must be kept in view.
We feel there is some scope for modification of sentence.
Having examined all the relevant aspects bearing on the
question of nature of offence and quantum of sentence,
F we reduce the substantive sentence to R.I. for 6 months.
To the extent of this modification in the sentence, the
appeal is allowed."
In Kedar Nath S/o Bhagchand v. State of Rajasthan,
G 1985 (2) WLN 560, the Rajasthan High Court observed:
"19. The report (Ex. P. 24) shows that the rectal swear
was positive for spermatozoa, which resembled with
human-spermatozoa. The presence of the human-
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 223
[G.S. SINGHVI, J.]
spermatozoa in the rectum of the deceased has been held A
to be a definite proof of fact that the boy has been
subjected to the carnal intercourse against the course of
nature. We are in agreement with the above conclusion
arrived at by the learned trial Court as, in the facts and
circumstances of the case, the presence of human B
spermatozoa in the rectum of the deceased who was a
young boy, leads to only one conclusion that he was
subjected to the carnal intercourse against the course of
nature."
c
In Calvin Francis v. Orissa 1992 (2) Crimes 455, the
Orissa High Court outlined a case in which a man inserted his
genital organ into the mouth of a 6 year old girl and observed:
"8. In order to attract culpability under Section 377, IPC, it D
has to be established that (i) the accused had carnal
intercourse with man, woman or animal, (ii) such
intercourse was against the order of nature, (iii) the act by
the accused was done voluntarily; and (iv) there was
E
penetration. Carnal intercourse against the order of nature
is the gist of the offence in Section 377. By virtue of the
Explanation to the Section, it is necessary to prove
penetration, however little, to constitute the carnal
intercourse. Under the English law, to constitute a similar F
offence the act must be in that part where sodomy is
usually committed. According to that law, the unnatural
carnal intercourse with a human being generally consists
in penetration per anus. In R. v. Jacobs: (1817) B&R 331
CCR and in Govindarajulu in re (1886) 1 Weir 382, it was G
held that the act in a child's mouth does not constitute the
offence. But in Khanu v. Emperor: AIR 1925 sind 286 it
was held that coitus per os is punishable under the Section.
H
224 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 9. In terms of Section 377, IPC, whoever voluntarily has
carnal intercourse against the order of nature with any man,
woman or animal, commits the offence. Words used are
quite comprehensive and an act like putting male organ
into victim's mouth which was an initiative act of sexual
B intercourse for the purpose of his satisfying the sexual
appetite, would be an act punishable under Section 377,
IPC.
10. In Corpus Juris Secundum, Volume 81, op. 368-370,
c the following comments have been made.
"Words used in statutory definitions of the crime of Sodomy
have been frequently construed as more comprehensive
and as not depending on, or limited by the ~ommon law
D definition of the crime, at least as not dependent on the
narrower definition of sodomy afforded by some of the
common law authorities and are generally interpreted to
include within their provisions all acts of unnatural
copulation, whether with mankind or beast. Other
E
authorities, however, have taken a contrary view, holding
that the words used in the statute are limited by the
common law definition of the crime where the words of
the statute themselves are not explicit as to what shall be
F included.
It is competent for the legislature to declare that the doing
of certain acts shall constitute the crime against nature
even-though they would not have constituted that crime at
G common law, and the statutory crime against nature is not
necessarily limited to the common law crime of sodomy,
but in imposing a punishment for the common law crime it
is not necessary for the legislature to specify in the statute
the particular acts which shall constitute the crime.
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 225
[G.S. SINGHVI, J.]
Under statutes providing that whoever has carnal A
copulation with a beast, or in any opening of the body,
except sexual parts, with another being, shall be guilty of
sodomy, it has been held that the act of cunnilingus is not
a crime, but that taking the male sex organ into the mouth
B
is sodomy. On the other hand, under such a statute it has
been held that the crime of sodomy cannot be committed
unless the sexual organ of accused is involved, but there
is also authority to the contrary. Under a statute defining
sodomy as the carnal knowledge and connection against C
the order of nature by man with man, or in the same
unnatural manner with woman, it has been held that'the
crime cannot be committed by woman with woman.
A statute providing that any person who shall commit any 0
act or practice of sexual perversity, either with mankind or
beast on conviction shall be punished, is not limited to
instances involving carnal copulation, but is restricted to
cases involving the sex organ of at least one of the parties.
The term 'sexual perversity' does not refer to every physical E
contact by a male with the body of the female with intent
to cause sexual satisfaction to the actor, but the
condemnation of the statute is limited to unnatural conduct
performed for the purpose of accomplish; abnormal sexual
satisfaction for the actor. Under a statute providing that F
any person participating in the act or copulating the mouth
of one person with the sexual organ of another is guilty of
the offence a person is guilty of violating the statute when
he has placed his mouth on the genital organ of another,
and the offence may be committed by two persons of G
opposite sex.
11. Though there is no statl!tory definition of 'sodomy',
Section 377 is comprehensive to engulf any act like the
226 SUPREME COURT REPORTS [2013] 17 S.C.R.
A alleged act. View similar to mine was expressed in
Lohana Vasantla/ Devchand and Ors. v. The State : AIR
1963 Guj 252 and in Khanu's case (supra). The orifice of
the mouth is not, according to nature, meant for sexual or
carnal intercourse. 'Intercourse' may be defined as mutual
B frequent action by members of independent organisation.
Commercial intercourse is therefore referred to; emphasis
is made on the reciprocity. By metaphor the word
'intercourse' like the word 'commerce' is applied to the
relations of the sexes. Here also there is the temporary
c
visitation of one organism by a member of the other
organisation, for certain clearly defined and limited objects.
The primary object of the visiting organisation is to obtain
euphoria by means of a detent of the nerves consequent
D on the sexual crisis. But there is no intercourse unless the
visiting member is enveloped at least partially by the visited
organism, for intercourse connotes reciprocity, and in this
view it would seem that sin of Gomorrah is no less carnal
intercourse than the sin of sodomy. These aspects have
E been illuminatingly highlighted in Khanu's case (supra).
12. In Stroud's Judicial Dictionary, the word 'buggery' is
said to be synonymous with sodomy. In K. J. Ayers Manual
of Law Terms and Phrases (as Judicially Expounded), the
F meaning of the word 'sodomy' is stated to be a carnal
knowledge committed against the order of Nature by a
man with a man or in the same unnatural manner with a
woman, or by a man or woman in any manner with a beast.
This is called buggery. As observed in Lohan Vasantlal
G Devchand's case (supra), sodomy will be a species and
unnatural offence will be a generis. In that view of the
matter, there can be no scope for any doubt that the act
complained of in punishable under Sec. 377, IPC."
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 227
[G.S. SINGHVI, J.]
Similar views were expressed in State v. Bachmiya A
Musamiya, 1999 (3) Guj LR 2456 and Orissa High Court in
Mihir alias Bhikari Charan Sahu v. State 1992 Cri LJ 488.
However, from these cases no uniform test can be culled out
to classify acts as "carnal intercourse against the order of
nature". In our opinion the acts which fall within the ambit of the B
section can only be determined with reference to the act itself
and the circumstances in which it is executed. All the
aforementioned cases refer to non consensual and markedly
coercive situations and the keenness of the court in bringing C
justice to the victims who were either women or children cannot
be discounted while analyzing the manner in which the section
has been interpreted. We are apprehensive of whether the
Court would rule similarly in a case of proved consensual
intercourse between adults. Hence it is difficult to prepare a o
list of acts which would be covered by the section. No,"· 'less
in light of the plain meaning and legislative history of the section,
we hold that Section 377 IPC would apply irrespective of age
and consent. It is relevant to mention here that the Section 377
IPC does not criminalize a particular people or identity or E
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.
39. We shall noxv consider the question whether the High F
Court was ;: i;:,'.;r,e'J ;n "'";ertaining chai!Bnge to Section 377
;p::; d:;s;:;te the fact that respondent No.1 had not laid factual
foundation to support its challenge. This issue deserves to be
prefaced by consideration of some precedents. In Southern
Petrochemical Industries v. Electricity Inspector (2007) 5 SCC G
447, this Court considered challenge to the T.N. Tax
Consumption or Sale of Electricity Act, 2003. While dealing
with the question whether the 2003 Act was violative of the
H
228 SUPREME COURT REPORTS [2013] 17 S.C.R.
A equality clause enshrined in Article 14 of the Constitution, this
Court made the following observations:
"In absence of necessary pleadings and grounds taken
before the High Court, we are not in a position to agree
B with the learned counsel appearing on behalf of the
appellants that only because Section 13 of the repealed
Act is inconsistent with Section 14 of the 2'003 Act, the
same would be arbitrary by reason of being discriminatory
in nature and ultra vires Article 14 of the Constitution of
c India on the premise that charging section provides for
levy of tax on sale and consumption of electrical energy,
while the exemption provision purports to give power to
exempt tax on "electricity sold for consumption" and makes
no corresponding provision for exemption of tax on
D
electrical energy self-generated and consumed."
In Seema Silk and Sarees v. Directorate of Enforcement
(2008) 5 SCC 580, this Court considered challenge to Sections
E 18(2) and (3) of the Foreign Exchange Regulation Act, 1973,
referred to paragraphs 69, 70 and 74 of the Southern
Petrochemical Industries v. Electricity Inspector (supra) and
observed:
"In absence of such factual foundation having been
F
pleaded, we are of the opinion that no case has been
made out for declaring the said provision ultra vires the
Constitution of India."
40. The writ petition filed by respondent No.1 was singularly
G
laconic inasmuch as except giving brief detail of the work being
done by it for HIV prevention targeting MSM community, it
miserably failed to furnish the particulars of the incidents of
discriminatory attitude exhibited by the State agencies towards
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 229
[G.S. SINGHVI, J.]
sexual minorities and consequential denial of basic human A
rights to them. Respondent No.1 has also not furnished the
particulars of the cases involving harassment and assault from
public and public authorities to sexual minorities. Only in the
affidavit filed before this Court on behalf of the Ministry of Health
B
and Family Welfare, Department of AIDS Control it has been
averred that estimated HIV prevalence among FSW (female
sex workers) is 4,60% to 4.94%, among MSM (men who have
sex with men) is 6.54% to 7.23% and IOU (injecting drug users)
is 9.42% to 10.30%. The total population of MSM as in 2006
c
was estimated to be 25,00,000 and 10% of them are at risk of
HIV. The State-wise break up of estimated size of high risk
men who have sex with men has been given in paragraphs 13
and 14 of the affidavit. In paragraph. 19, the State-wise details
of total adult population, estimated adult HIV prevalence and D
estimated number of HIV infections as in 2009 has been given.
These details are wholly insufficient for recording a finding that
homosexuals, gays, etc., are being subjected to discriminatory
treatment either by State or its agencies or the society.
E
41. The question whether a particular classification is
unconstitutional was considered in Re: Special Courts Bill, 1978
(1979) 1 SCC 380. Speaking for majority of the Constitution
Bench, Chandrachud, CJ, referred to large number of
precedents relating to the scope of Article 14 and concluded F
several propositions including the following:
"1. The first part of Article 14, which was adopted from
the Irish Constitution, is a declaration of equality of the
civil rights of all persons within the territories of India. It G
_ enshrines a basic principle of republicanism. The second
- part, which is a corollary of the first and is based on the
last clause of the first section of the Fourteenth Amendment
of the American Constitution, enjoins that equal protection
H
230 SUPREME COURT REPORTS [2013) 17 S.C.R.
A shall be secured to all such persons in the enjoyment of
the,, rights and liberties without discrimination of
favourtism. It is a pledge of the protection of equal laws,
that is, laws that operate alike on all persons under like
circumstances.
B
2. The State, in the exercise of its governmental power,
has of necessity to make laws operating differently on
different groups or classes of persons within its territory
to attain particular ends in giving effect to its policies, and
c it must possess for that purpose large powers of
distinguishing and classifying persons or things to be
subjected tG such laws.
3. The Constitutional command to the State to afford equal
D
protection of its laws sets a goal not attainable by the
invention and application of a precise formula. Therefore,
classification need not be constituted by an exact or
scientific exclusion or inclusion of persons or things. The
E Courts should not insist on delL<sive exactness or apply
doctrinaire tests for determining the validity of classification
in any given case. Classification is justified if it is not
palpably arbitrary.
F 4. The principle underlying the guarantee of Article 14 is
not that the same rules of law should be applicable to all
persons within the Indian Territory or that the same
remedies should be made available to them irrespective
of differences of circumstances. It only means that all
G persons similarly circumstanced shall be treated alike both
in privileges conferred and liabilities imposed. Equal laws
would have to be applied to all in the same situation, and
there should be no discrimination between one person and
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 231
[G.S. SINGHVI, J.]
another if as regards the subject-matter of the legislation A
their position is substantially the same.
5. By the process of classification, the State has the power
of determining who should be regarded as a class for
purposes of legislation and in relation to a law enacted B
on a particular subject. This power, no doubt, in some
degree is likely to produce some inequality; but if a law
deals with the liberties of a number of well-defined classes,
it is not open to the charge of denial of equal protection C
on the ground that it has no application to other persons.
Classification thus means segregation in classes which
have a systematic relation, usually foun<;I in common
properties and characteristics. It postulates a rational
basis and does not mean herding together of certain o
persons and classes arbitrarily.
6. The law can make and set apart the classes according
to the needs and ~xigencies of the society arid as
suggested by experience. It can recognise eve°' degree E
of evil, but the classification should never be arbitrary,
artificial or evasive.
7. The. classification must not be arbitrary but must be
rational, that is to say, it must not only be based on some F
qualities or characteristics which are to be found in all the
persons grouped together and not in others who are left
out but those qualities or characteristics must have a
reasonable relation to the object of the legislation. In order
to pass the test, two conditions must be fulfilled, namely, G
(1) that the classification must be founded on an intelligible
differentia which distinguishe.s those that are grouped
together from others and (2},that differentia must have a
H
232 SUPREME COURT REPORTS (2013] 17 S.C.R.
A rational relation to the object sought to be achieved by
the Act.
8. The differentia which is the basis of the classification
and the object of the Act are distinct things and what is
B necessary is that there must be a nexus between them. In
short, while Article 14 forbids class discrimination. by
conferring privileges or imposing liabilities upon persons
arbitrarily selected out of a large number of other persons
similarly situated in relation to the priviieges sought to be
c conferred or the liabilities proposed to be imposed, it does
not forbid classification for the purpose of legislation,
provided such classification is not wbitrary in the ·sense
above mentioned.
D
9. If the legislative policy is clear and definite and as an
effective method of carrying out that policy a discretion il?
vested by the statute upon a body of administrators or
officers to make selective application of the law to certain
classes or groups of persons, the statute itself cannot be
E
condemned as a piece of discriminatory legislation. In sllch ·
cases, the power given to the executive body would import
a duty on it to classify the subject-matter of legislation in
accordance with the objective indicated in the statute. If
F the administrative body proceeds to classify persons or
things on a basis which has no rational relation to the
objective of the legislature, its action can be annulled as
offending against the equal protection clause. On the other
hand, if the statute itself does not disclose a definite policy
G or objective and it confers authority on another to make
selection at its pleasure, the statute would be held on the
face of it to be discriminatory, irrespective of the way in
which it is applied.
H
SUR~SH KUMAR KOUSHAL v. "NAZ FOUNDATION 233
[G.S. SINGHVI, J.]
10. Whether a law conferring discretionary powers on an A
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 8
because of such an apprehension. Discretionary power
is not necessarily a discriminatory power.
11. Classification necessarily implies the making of a C
distinction or discrimination between persons classified
and those who. are not members of that class. It is the
essence of a classification that upon the class are cast
duties and burdens different from those resting upon the
general public. Indeed, the very idea of classification is D
that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter
of constitutionality.
12. Whether an enactment providing for special procedure E
for the trial of certain offences is or is not discriminatory
and violative of Article 14 must be determined in each
case as it arises, for no general rule applicable to all cases
can safely be laid down. A practical assessment of the
operation of the law in the particular circumstances is F
necessary.
13. A rule of procedure laid down by law comes as much
within· the purview of Article 14 as any rule of substantive
law and it is necessary that all litigants, who are similarly G
situated, are able to avail themselves of the same
procedural rights for relief and for defence with like
protection and without discrimination."
H
234 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 42. Those who indulge in carnal intercourse in the ordinary
course and those who indulge in carnal intercourse again.st.
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.
B 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
C of the same family the person is found guilty. Therefore, the
High Court was not right in declaring Section 377 IPC ul.tra
vi res Articles 14 and 15 of the Constitution.
43. While reading down Section 377 IPC, the Division
0 Bench of the High Court overlooked that a miniscule fraction
of the country's population constitute lesbians, gays, bisexuals
or transgenders and in last more than 150 years less than 20.0
persons have been prosecuted (as per the reported orders)
for committing offence under Section 377 IPC and this cannot
E be made sound basis for declaring that section ultra vires the
provisions of Articles 14, 15 and 21 of the Constitution.
44. The vagueness and arbitrariness go to the root of a
provision and may render it unconstitutional, making its
F implementation a matter of unfettered discretion. This is
especially so in case of penal statues. However while analyzing
a provision the vagaries of language must be borne in mind
and prior application of the law must be considered. In A.K.
Roy and Ors. v. Union of/ndia and Ors. (1982) 1 SCC 271, a
G Constitution Bench observed as follows:
"67. The requirement that crimes must be defined with
appropria\e definiteness is regarded as a fundamental
concept in criminal law and must now be regarded as a
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 235
[G.S. SINGHVI, J.]
pervading theme of our Constitution since the decision in A
Maneka Gandhi [1978] 2 SCR 621 . The underlying
principle is that every person is entitled to be informed as
to what the State commands or forbids and that the life
and liberty of a person cannot be put in peril on an . B
ambiguity. However, even in the domain of criminal law,
the processes of which can result in the taking away of
life itself, no more than a reasonable degree of certainty
has to be accepted as a fact'. Neither the criminal law nor
the Constitution requires the application of impossible c
standards and therefore, what is expected is that the
languag·e of the law must contain an adequate warning of
the conduqt which may fall within the prescribed area, when
measured by common understanding. In criminal law, the
legislature frequently uses vague expressions like 'bring D
into hatred or contempt', 'maintenance of harmony
between different religious groups' or 'likely to cause
disharmony or hatred or ill-will', or 'annoyance to the public',
(see Sections 124A, 153A(1 )(b), 1538(1 )(c), and 268 of
the Penal Code). These expressions, though they are E
difficult to define, do not elude a just application to practical
situations. The use of language carries with it the
inconvenience of the imperfections of language."
In K.A. Abbas v. The Union of/ndia (UO/) and Anr. (1970) F
2 SCC 780 the Court observed:
"46. These observations which are clearly obiter are apt
to be too generally applied and need to be explained.
While it is true that the principles evolved by the Supreme G
Court of the United States of America in the application
of the Fourteenth Amendment were eschewed in our
Constitution and instead the limits of restrictions on each
H
236 SUPREME COURT REPORTS (2013] 17 S.C.R.
A fundamental right were indicated in the clauses that follow
the first clause of the nineteentb Article, it cannot be said
as an absolute principle that no law will be considered
bad for sheer vagueness. There is ample authority for the
proposition that a law affecting fundamental rights may be
B so considered. A very pertinent example is to be found in
State of Madhya Pradesh and Anr. v. Baldeo Prasad
where the Central Provinces and Berar Goondas Act 1946
was declared void for uncertainty. The condition for the
application of Sections 4 and 4A was that the person
c sought to be proceeded against must be a goonda but
the definition of goonda in the Act indicated no tests for
deciding which person fell within the definition. The
provisions were therefore held to be uncertain and vague.
D
47. The real rule is that if a law is vague or appears to be
so, the court must try to construe it, as far as may be, and
language permitting, the construction sought to be placed
on it, must be in accordance with the intention of the
E legislature. Thus if the law is open to diverse construction,
that construction which accords best with the intention of
the legislature and advances the purpose of legislation, is
to be preferred. Where however the law admits of no such
construction and the persons applying it are in a boundless
F sea of uncertainty and the law prima facie takes away a
guaranteed freedom, the law must be held to offend the
Constitution as was done in the case of the Goonda Act.
This is .not application of the doctrine of due process. The
invalidity arises from the probability of the misuse of the
G law to the detriment of the individual. If possible, the Court
instead of striking down the law may itself draw the line of
demarcation where possible but this effort should be
sparingly made and only in the clearest of cases."
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 237
[G.S. SINGHVI, J.]
45. We may now deal with the issue of violation of Article A
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 B
limit the right to life and liberty, including th!'1 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 C
are the notions of legitimate state interest and the principle of
proportionality. In Maneka Gandhi v. Union of India (supra),
this Court laid down the due process requirement in the
following words:
D
"13. Articles dealing with different fundamental rights
·contained in Part Ill of the Constitution do not represent
entirely separate streams of rights which do not mingle at
many points. They are all parts of an integrated scheme
in the Constitution. Their waters must mix to constitute that E
grand flow of unimpeded and impartial Justice (social,
economic and political), Freedom (not only of thought,
expression, belief, faith and worship, but also of
association, movement, vocation or occupation as well as
of acquisition and possession of reasonable property), of F
Equality (of status and of opportunity, which imply absence
of unreasonable or unfair· discrimination between
individuals, groups and classes), and of Fraternity
(assuring dignity of the individual and the unity of the
nation), which our Constitution visualises. Isolation of G
various aspects of human freedom, for purposes of their
protection, is neither realistic nor beneficial but would
defeat the very objects of such protection ....
H
238 SUPREME COURT REPORTS [2013] 17 S.C.R.
A ... But the mere prescription of some kind of procedure
cannot ever meet the mandate of Article 21. The procedure
prescribed by law has to be fair, just and reasonable, not
fanciful, oppressive or arbitrary. The question whether the
procedure prescribed by a law which curtails or takes away
B the personal liberty guaranteed by Article 21 is reasonable
or not has to be considered not in the abstract or on
hypothetical considerations like the provision for a full-
a
dressed hearing as in Courtroom trial, but in the context,
primarily, of the purpose which the Act is intended to
c
achieve and of urgent situations which those who are
charged with the duty of administering the Act may be
called upon to deal with. Secondly, even the fullest
compliance with the requirements of Article 21 is not the
D journey's end because, a law which prescribes fair and
reasonable procedure for curtailing or taking away the
personal liberty guaranteed by Article 21 has still to meet
a possible challenge Linder other provisions of the
Constitution like, for example, Articles 14 and 19."
E
46. The right to privacy has been guaranteed by Article
12 of the Universal Declaration of Human Rights (1948), Article
17 of the International Covenant of Civil and Political Rights
and European Convention on Hu~an Rights. 1t has been read
F into Article 21 through an expansive reading of the right to life
and liberty. The scope of the right as also the permissible limits
upon its exercise have been laid down in the cases of Kharak
Singh v. State of UP & Ors. (1964) 1 SCR 332 and Gobind v.
State of MP (1975) 2 SCC 148 which have been followed in a
G number of other cases. In Kh?rak Singh v. The State of U.P.
and Ors. (supra) the majority said that 'personal liberty' in Article
21 is comprehensive to include all varieties of rights which
make up personal liberty of a man other than those dealt with
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 239
[G.S. SINGHVI, J.]
in Article 19(1) (d). According to the Court, while Article 19(1) A
(d) deals with the particular types of personal freedom, Article
21 takes in and deals with the residue. The Court said:
"We have already extracted a passage from the judgment
of Field J. in Munn v. Illinois (1877) 9ft U.S. 113, where B
the learned Judge pointed out that 'life' in the 5th and 14th
Amendments of the U.S. Constitution corresponding to
Article 21 means not merely the right to the continuance
of a person's animal existence, but a right to the
possession of each of his organs-his arms and legs etc. C
We do not entertain any doubt that the word 'life' in Article
21 bears the same signification. Is then the word 'personal
liberty' to be construed as excluding from its purview an
invasion on the part of the police of the sanctity of a man's
0
home and an intrusion into his personal security and his
right to sleep which is the normal comfort and a dire
necessity for human existence even as an animal ? It might
not be in appropriate to refer here to the words of the
preamble to the Constitution that it is designed to "assure E
the dignity of the individual" and therefore of those
cherished human value as the means of ensuring his full
development and evolution. We are referring to these
objectives of the framers merely to draw attention to the
concepts underlying the Constitution.which would point to F
. such vital words as 'personal liberty' having to be construed
in a reasonable manner and to be attributed that sense
which would promote and achieve those objectives and
by no means to stretch the meaning of the phrase to
square with any preconceived notions or doctrinaire G
Constitutional theories."
47. In Gobind v. State of M.P. (supra) the Court observed:
H
240 SUPREME COURT REPORTS [2013] 17 S.C.R.
A "22. There can be no doubt that privacy-dignity claims
deserve to be examined with care and to be denied only
when an important countervailing interest is shown to be
superior. If the Court does find that a claimed right is
entitled to protection as a fundamental privacy right, a law
B infringing it must satisfy the compelling state interest test.
Then the question would be whether a state interest is of
such paramount importance as would justify an
infringement of the right. Obviously, if the enforcement of
morality were held to be a compelling as well as a
c permissible state interest, the characterization of ft claimed
rights as a fundamental privacy right would be of far less
significance. The question whether enforcement of morality
is a state interest sufficient to justify the infringement of a
D fundamental privacy right need not be considered for the
purpose of this case and therefore we refuse to enter the
controversial thicket whether enforcement of morality is a
function of state.
E 23. Individual autonomy, perhaps the central concern of
any system of limited government, is protected in part under
our Constitution by explicit Constitutional guarantees. "In
the application of the Constitution our contemplation cannot
only be of what has been but what may be." Time works
F changes and brings into existence new conditions. Subtler
and far reaching means of invadings privacy will make it
possible to be heard in the street what is whispered in
the closet. Yet, too broad a definition of privacy raises
serious questions about the propriety of judicial reliance
G on a right that is not explicit in the Constitution. Of course,
privacy primarily concerns the individuals. It therefore
relates to and overlaps with the concept of liberty. The
most serious advocate of privacy must confess that there
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 241
[G.S. SINGHVI, J.]
are serious problems of defining the essence and scope A
of the right. Privacy interest in autonomy must also be
placed in the context of other rights and values.
24. Any right to privacy must encompass and protect the
personal intimacies of the home, the family marriage, B
motherhood, procreation and child rearing. This catalogue
approach to the question is obviously not as instruct.ive
as it does not give analytical picture of that distinctive
characteristics of the right of privacy. Perhaps, the only C
suggestion that can be offered as unifying principle
underlying the concept has been the assertion that a
claimed right must be a fundamental right implicit in the
concept of ordered liberty.
D
25. Rights and freedoms of citizens are set forth in the
Constitution in order to guarantee that the individual, his
personality and those things stamped with his personality
shall be free from official interference except where a
reasonable basis for intrusion exists. "Liberty against E
government" a phrase coined by Professor Corwin
express this idea forcefully. In this sense, many of the
fundamental rights of citizens can be described as
contributing to the right to privacy.
F
26. As Ely says: "There is nothing to prevent one from
using the word 'privacy' to mean the freedom to live one's
life without governmental interference. But the Court
obviously does not so use the term. Nor could it, for such
a right is at stake in every case" see "The Wages of Crying G
Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920.
27. There are two possible theories for protecting privacy
H
242 SUPREME COURT REPORTS [2013] 17 S.C.R.
A of home. The first is that activities in the home harm others
only to the extent that they cause offence resulting from
the mere thought that individuals might he engaging in such
activities and that such 'harm' is not Constitutionally
protective by the state. The second is that individuals need
B a place of sanctuary where they can be free from societal
control. The importance of such a sanctuary is that
individuals can drop the mask, desist for a while from
projecting on the world the image they want to be accepted
as themselves, an image that may reflect the values of
c their peers rather than the realities of their natures see 26
Standford Law Rev. 1161 at 1187.
28. The right to privacy in any event will necessarily have
to go through a process of case-by-case development.
D
Therefore, even assuming that the right to personal liberty,
the right to move freely throughout the territory of India and
the freedom of speech create an independent right of
privacy as an emanation from them which one can
E characterize as a fundamental right, we do not think that
the right is absolute."
48. The issues of bodily integrity and the right to sexual
choices have been dealt with by this Court in Suchita
F Srivastava and Anr. v. Chandigarh Administration (2009) 9
SCC 1, in context of Section 3 of the Medical Termination of
Pregnancy Act, 1971, obseNed:
"11. A plain reading of the above-quoted provision makes
G it clear that Indian law allows for abortion only if the
specified conditions are met. When the MTP Act was first
enacted in 1971 it was largely modelled on the Abortion
Act of 1967 which had .been passed, in the United
Kingdom. The legislative intent was to provide a qualified
,
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 243
[G.S. SINGHVI, J.]
'right to abortion' and the termination of pregnancy has A
never been recognised as a normal recourse for expecting
mothers. There is no doubt that a woman's right to make
reproductive choices is also a dimension of 'personal
liberty' as understood under Article 21 of the Constitution
of India. It is important to recognise that reproductive 8
choices can be exercised to procreate as well as to
abstain from procreating. The crucial consideration is that
a woman's right to privacy, dignity and bodily integrity
should be respected. This means that there should be no
c
restriction whatsoever on the exercise of reproductive
choices such as a woman's right to refuse participation in
sexual activity or alternatively the insistence on use of
contraceptive methods'. Furthermore, women are also free
to choose birth-control methods such as undergoing D
sterilisation procedures. Taken to their logical conclusion,
reproductive rights include a woman's entitlem.ent to carry
a pregnancy to its full term, to give birth and to
subsequently raise children. However, in the case of
pregnant women there is also a 'compelling state interest' E
in protecting the life of the prospective child. Therefore,
the termination of a pregnancy is only permitted when the
conditions specified in the applicable statute have been
fulfilled. Hence, the provisions of the MTP Act, 1971 can
also be viewed as reasonable restrictions that have been F
placed on the exercise of reproductive choices."
49. In Mr.Xv. Hospital Z (1998) 8 SCC 296, this court
observed:
G
"25. As one of the. basic Human Rights, the right of privacy
is not treated as absolute and is subject to such action as
may be lawfully taken for the prevention of crime or disorder
H
244 SUPREME COURT REPORTS [2013] 17 S.C.R.
A or protection of health or morals or protection of rights
and freedoms of others.
26. Right of Privacy may, apart from contract, also arise
out of a particular specific relationship which may be
B commercial, matrimonial, or even political. As already
discussed above, Doctor-patient relationship, though
basically commercial, is, professionally, a matter of
confidence and, therefore. Doctors are morally. and
etbically bound to maintain confidentiality. In such a
c situation, public disclosure of even true private facts may
amount to an invasion of the Right of Privacy which may
sometimes lead to the clash of person's "right to be let
alone" with another person's right to be informed.
D 27. Disclosure of even true private facts has the tendency
to disturb a person's tranquility. It may generate many
complexes in him and may even lead to psychological
problems. He may, thereafter, have a disturbed life all
through. In the face of these potentialities, and as already
E
held by this Court in its various decisions referred to
above, the Right of Privacy is an essential component of
right to life envisaged by Article 21. The right, however, is
not absolute and may be lawfully restricted for the
F prevention of crime, disorder or protection of health or
morals or protection of rights and freedom of others.
28. Having regard to the fact that the appellant was found
to be HIV(+), its disclosure would not be violative of either
G the rule of confidentiality or the appellant's Right of Privacy
as Ms. Akali with whom the appellant was likely to be
married was saved in time by such disclosure, or else,
she too would have been infected with the dreadful disease
if marriage had taken place and consummated."
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 245
[G.S. SINGHVI, J.]
50. _The right to live with dignity has been recognized as a A
part of Article 21 and the matter has been dealt with in Francis
Coralie Mullin v. Administrator, Union Territory of Delhi and
Ors, (1981) 1 SCC 608 wherein the Court observed:
"8. But the question which arises is whether the right to B
life is limited only to protection of limb or faculty or does it
go further·and embrace something more. We think that
the right to life includes the right to live with human dignity
and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and
c
shelter and facilities for reading, writing and expressing
one-self in diverse forms, freely moving about and mixing
and commingling with fellow human beings. Of course, the
magnitude and content of the components of this right 0
wo·uld depend upon the extent of the economic
development of the country, but it must, in any view of the
matter, include the right to the basic necessities of life
and also the right to carry on such functions and activities
as constitute the bare minimum expression of the human- E
self. Every act which offends against or impairs human
dignity would constitute deprivation pro tanto of this right
to llve and it would have to be in accordance with
reasonable, fair and just procedure established by law
which stands the test of other fundamental rights. Now F
obviously, any form of torture or cruel, inhuman or
degrading treatment would be offensive to human dignity
and constitute an inroad into this right to live and it would,
on this view, be prohibited by Article 21 unless it is in
G
accordance with procedure prescribed by law, but no law
which authorises and no procedure which leads to such
torture or cruel, inhuman or degrading treatment can ever
stand the test of reasonableness and non-arbitrariness: it
H
246 SUPREME COURT REPORTS [2013] 17 S.C.R.
A would plainly be unconstitutional and void as being violative
of Articles 14 an,d 21."
51. Respondent No.1 attacked Section 377 IPC on the
ground that the same has been used to perpetrate h!'lrassment;
B blackmail and torture on certain persons, especially those
belonging to the 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
C a relevant factor for the Legislature to consider while ju~ging
the desirability of amending Section 377 IPC. The law in this
regard has been discussed and clarified succinctly in Sushi/
Kumar Sharma v. Union of India and Ors. (2005) 6 SCC 281
as follows:
0
"11. It is well settled that mere po_ssibility of abuse of a
provision of law does not per se invalidate a legislation. It
must be presumed, unless contrary is proved, that
E administration and application of a particular law would
be done "not with an evil eye and unequal hand" (see: A.
Thangal Kunju Musa.liar v. M. Venkatachalam Potti,
Authorised Official and Income-Tax Officer and Anr.) :
[1956]291TR349(SC) .
F
12. In Budhan Chaudhry and Ors. v. State of Bihar:
1955CriLJ374 a contention was raised that a provision
of law may not be discriminatory but it may land itself to
abuse bringing about discrimination between the persons
G similarly situated. This court repelled the contention holding
that on the possibility of abuse of a provision by the
authority, the legislation may not be held arbitrary or
discriminatory and violative of Article 14 of the Constitution.
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 247
[G.S. SINGHVI, J.]
13. From the decided cases in India as well as in United A
States of America, the principle appears to be well settled
thar if a statutory provision is otherwise intra-vires,
constitutional _and valid, mere possibility of abuse of power
in a given case would not make it objectionable, ultra-vires
or unconstitutional. In such cases, "action" and not the B
"section" may be vuln.erable. If it is so, the court by
upholding the provision of law, may still set aside the
action, order or decision and grant appropriate relief to
the person aggrieved.
c
14. In Mafatlal Industries Ltd. and Ors. v. Union of India
and Ors. ; 1997(89)ELT247(SC) , a Bench of 9 Judges
observed that mere possibility of abuse of a provision by
those in charge of administering it cannot be a ground for
0
holding a provision procedurally or substantively
unreasonable. In Collector of Customs v. Nathe/la
Sampathu Chetty : 1983ECR2198D(SC) this Court
observed:
E
a
"The possibility of abuse of statute otherwise valid does
not impart to it any element of invalidity." It was said in
State of Rajasthan v. Union of India: [1978]1SCR1 "it must
be. remembered that merely because power may
sometimes be abused, it is no ground for denying the F
existence of power. The wisdom of man has not yet been
able to conceive of a Government with power sufficient to
answer all its legitimate needs and at the same time
incapable of mischief." (Also see: Commissioner, H.R.E.
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth : G
[1954]1SCR1005.
15. As observed in Mau/avi Hussein Haji Abraham
Umarji v. ·State of Gujarat MANU/SC/0567/2004 :
H
248 SUPREME COURT REPORTS [2013] 17 S.C.R.
A 2004CriLJ3860. Unique Bulle Ttjbe Industries (P) Ltd. v.
U.P. Financial Corporation and Ors.
[2002]SUPP5SCR666 and Padma Sundara Rao (dead)
and Ors. v. State of Tamil and Ors. [2002]2551TR147(SC)
, while interpreting a provision, the Court only interprets
B the law and cannot legislate it. If a provision of law is
misused and subjected to the abuse of the process of
law, it is for the legislature to amend, modify or repeal it, if
deemed necessary."
c 52. In its anxiety to protect the so-called rights of LGBT
persons and to declare that Section 377 IPC violates the right
to privacy, autonomy and dignity, the High Court has extensively
relied upon the judgments of other jurisdictions. Though these
judgments shed considerable light on various aspects of this
0
· right and are informative in relation to the plight of sexual
minorities, we feel that they cannot be applied blindfolded for
deciding the constitutionality of the law enacted by the Indian
legislature. This view was expressed as early as in 1973 in
E Jagmohan Singh v. State of U.P. (1973) 1 SCC 20. In that
case,. a Constitutional Bench considered the legality of the
death sentence imposed by the Sessions Judge,
Shahjahanpur, which was confirmed by the Allahabad High
Court. One of the arguments raised by the counsel for the
F appellant was that capital punishment has been abolished in
U.S. on the ground of violation of the 8th Amendment. While
considering.that argument, this Court observed:
"13. Reference was made by Mr Garg to several studies
G made by Western scholars to show the ineffectiveness of
capital punishment either as a detterent or as appropriate
retribution. There is large volume of evidence compiled in
the West by kindly social reformers and research workers
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 249
[G.S. SINGHVI, J.]
to confound those who want to retain the capital A
punishment. The controversy is not yet ended and
experiments are made by suspending the death sentence
where possible in order to see its effect. On the other hand
most of these studies suffer from one grave defect namely
8
that they consider all murders as stereotypes, the result of
sudden passion or the like, disregarding motivation in
each individual case. A large number of murders is
undoub\edly of the common type. But some at least are
diabolical in conception and cruel in execution. In some C
others where the victim is a person of high standing in the
country society is liable to be rocked to its very foundation.
Such murders cannot be simply wished away by finding
alibis in the social maladjustment of the murderer.
Prevalence of such crimes speaks, in the opinion of many, D
for the inevitability of death penalty not only by way of
deterrence but as a token of emphatic disapproval by the
society.
14. We have grave doubts about the expediency of E
transplanting Western experience in our country. Social
conditions are different and so also the general intellectual
level. In the context of our Criminal Law which punishes
murder, one cannot ignore the fact that life imprisonment
works out in most cases to a dozen years of imprisonment F
and it may be seriously questioned whether that sole
alternative will be an adequate substitute for the death
penalty. We have not been referred to any large-scale
studies of crime statistics compiled in this country with G
the object of estimating the need of protection of the society
against murders. The only authoritative study is that of the
Law Commission of India published in 1967. It is its Thirty-
fifth Report. After collecting as much available material as
H
250 SUPREME COURT REPORTS (2013) 17 S.C.R.
A possible and assessing the views expressed in the West
both by abolitionists and the retentionists the Law
Commission has come to its conclusion at paras 262 to
264. These paragraphs are summarized by the
Commission as follows at p. 354 of the Report:
B
"The issue of abolition or retention has to be decided on
a balancing of the various arguments for and against
retention. No single argument for abolition or retention can
decide the issue. In arriving at any conclusion on the
c subject, the need for protecting society in general and
individual human beings must be borne in mind.
It is difficult to rule out the validity of, or'the strength behind,
many of the arguments for abolition. Nor does the
D
Commission treat lightly the argument based on the
irrevocability of the sentence of death, the need for a
modern approach, the severity of capital punishment, and
the strong feeling shown by certain sections of public
E opinion in stressing deeper questions of human values.
Having regard, however, to the conditions in India, to the
variety of the social upbringing of its inhabitants, to the
disparity in the level of morality and education in the
F country, to the vastness of its area, to the diversity of its
population and to the paramount need for maintaining law
and order in the country at the present juncture, India
cannot risk the experiment of abolition of capital
punishment.
G
Arguments which would be valid in respect of one area of
the world may not hold good in respect of another area, in
this context. Similarly, even if abolition in some parts of
India may not make a material difference, it may be fraught
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 251
[G.S. SINGHVI, J.]
. A
with serious consequences in other·parts.
On a consideration of all the issues involved, the
Commission is of the opinion, that capital punishment
should be retained in the present state of the country."
B
The Court also referred to an earlier judgment in State of
Madras v. V.G. Row 1952 SCR 597. In that case, Patanjali
Sastri, CJ.. observed:
"It is important in this context to bear in mind that the test C
of reasonableness, wherever prescribed, should be
applied to each individual statute impugned, and to
abstract standard, or general pattern, of reasonableness
can be laid down as applicable to all cases. The nature of
the right alleged to have been infringed, the underlying D
purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions
at the time, should all enter into the judicial verdict. In
E
evaluating such elusive factors and forming their own
conception of what is reasonable, in all the circumstances
of a given case, it is inevitable that the social philosophy
and the scale of values of the judge~ participating in the
decision should play an important part, and the limit to their F
interference with legislative judgment in such cases can
only be dictated by their sense of responsibility and self-
restraint and the sobering reflection that the Constitution
is meant not only for people of their way of thinking but for
all, and that the majority of the elected representatives of G
the people have, in authorising the imposition of the
restrictions, considered them to be reasonable". The
responsibility of Judges in that respect is the greater, since
the question as to whethe.r capital sentence for murder is
H
252 SUPREME COURT REPORTS [2013] 17 S.C.R.
A appropriate in modern times has raised serious
controversy the world ave~. sometimes, with emotional
overtones. It is, therefore, essential that we approach this '
constitutional question with objectivity and proper measure
of self-restraint."
B
53. The afore-stated judgment was relied upon in Surendra
Pal v. Saraswati Arora (1974) 2 SCC 600. Learned counsel
who appeared for the appellant in that case relied upon a
C passage from Halsbury's Laws of England on the issue of
presumption of undue influence in the case of parties engaged
to be married. While refusing to rely upon the proposition laid
down in Halsbury's laws of England, this Court observed:
"The family law in England has undergone a drastic
D
change, recognised new social relationship between man
and woman. In our country, however, even today a marriage
is an arranged affair. We do not say that there are no
exceptions to this practice or that there is no tendency,
E however imperceptible, ·for young persons to choose their
own spouses, but even in such cases the consent of their
parents is one of the desiderata which is sought for.
Whether it is obtained in any given set of circumstances
is another matter. In such arranged marriages in this
F country the question of two persons being engaged for
any appreciable time to enable each other to meet and
be in a position to exercise undue influence on one
another very rarely arises. Even· in the case of the
marriage in the instant case, an advertisement was
G resorted to by Bhim Sain. The person who purports to reply
is Saraswati's mother and the person who replied to her
was Bhim Sain's Personal Assistant. But the social
considerations prevailing in this country and ethos even
in such cases persist in determining the respective
H
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 253
[G.S. SINGHVI, J.]
attitudes. That apart, as we said earlier, the negotiations A
for marriage held in Saraswati's sister's house have ·all
the appearance of a business transaction. In these
circumstances that portion of the statement of the law in
Halsbury which refers to the presumption of the exercise
8
of undue influence in the case of a man to a woman to
whom he is engaged to be married would hardly be
applicable to conditions in this country. We have had
occasion to point out the danger of such statements of
law enunciated and propounded for meeting the conditions c
existing in the countries in which they are applicable from
being blindly followed in this country without a critical
examination of those principles and their applicability to
the conditions, social norms and attitudes existing in this
country. Often statements of law applicable to foreign D
countries as stated in compilations and learned treatises
are cited without making a critical examination of those
principles in the background of the conditions that existed
or exist in those countries. If we are not wakeful and
circumspect, there is every likelihood of their being simply E
applied to cases requiring our adjudication without
consideration of the background and various other
conditions to which we have referred. On several
occasions merely because courts in foreign countries have
F
taken a different view than that taken by our courts or in
adjudicating on any particular matter we were asked to
reconsider those decisions or to consider them for the
first time and to adopt them as the law of this country.
G
No doubt an objective and rational deduction of a principle,
if it emerges from a decision of foreign country, rendered
on pari materia legislative provisions and which can be
applicable to the conditions prevailing in this country will
assist the Court in arriving at a proper conclusion. While H
254 SUPREME COURT REPORTS (2013) 17 S.C.R.
A we should seek light from whatever source we can get,
we should however guard against being blinded by it."
54. In view of the above discussion, we hold that Section
377 IPC does not suffer from the vice of unconstitutionality and
B the declaration made by the Division Bench of the High court
is legally unsustainable.
55. The appeals'are accordingly allowed,,the impugned
order is set aside and the writ petition filed by respondent No.1
C is dismissed.
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
D of Section 377 IPC and found that the said section does not
suffer from any constitutional infirmity. Notwithstanding this
verdict, the compete.nt legislature shall be free to consider the
desirability and propriety of deleting Section 377 IPC from the
E statute book or amend the same as per the suggestion made
by the Attorney General.
Kalpana K. Tripathy Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Section 377"Sign in to search