Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, (2014) 1 SCC 1

OVERVIEW 

FACTS OF THE CASE

1. The petition was against the order of Delhi High Court
2. In this case, Respondent No.1 is a Non-Governmental Organisation (NGO) registered below the Societies Registration Act, 1860 which goes within side the area of HIV/AIDS intervention and prevention focuses on targeting ‘men who have sex with men’ (MSM) or homosexuals or gays in consonance with the integrationist policy.
3. Respondents  Alleged  that their efforts have been severely impaired by the discriminatory attitudes exhibited by State authorities towards sexual Minorities, MSM, lesbians and transgender people and that except self appreciate and dignity is restored to those sexual minorities with the aid of using doing away with discriminatory laws such as Section 377 IPC it will not be possible to prevent HIV/AIDS, NAZ
4. High court held, :

        “  We claim 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 of Section 377 IPC will retain to manipulate non-consensual penile non-vaginal intercourse and penile non-vaginal intercourse concerning minors.”

• The High Court took observe of the Declaration of Principles of Equality issued with the aid of using the Equal Rights Trust in April, 2008. It referred to the judgments in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, Lawrence v. Texas, Roomer v Evans, Vriend v. Alberta and held: “

Section 377 IPC is facially neutral and it apparently targets not identities however acts, however in its operation it does grow to be unfairly concentrated on a selected community. The truth is that those sexual acts which can be criminalised are related extra carefully with one elegance of persons, namely, the homosexuals as a elegance. Section 377 IPC has the impact of viewing all homosexual guys as criminals

• The order of the High Court has been challenged by large number of organizations and individuals

ISSUE  RAISED

• Whether the Section 377 IPC is violative of Article 14 of constitution of India.
• Whether the Section 377 IPC is violative of Article 21 of constitution of India.
• Whether high court decision of declaring sec. 377 of IPC as unconstitutional is valid.

PETITIONER’S ARGUMENTS

1. Petitioner contended that the High Court committed serious error by declaring Section 377 IPC as violative of Articles 21, 14 and 15 of the Constitution n insofar because it criminalises consensual sexual acts of adults in non-public absolutely ignoring that the writ petition filed through respondent no.1 did now no longer incorporate foundational information important for announcing upon constitutionality of a statutory.
2. It was 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 the Constitution and submitted that the problem have to had been left to Parliament to decide as to what is ethical and what’s immoral and whether or not the segment in query must be retained within side the statute book. It was emphasised that mere opportunity of abuse of any specific provision cannot be a floor for asserting it unconstitutional.
3. Petitioner contended that  the High Court discuss the concept of “carnal intercourse against the order of nature” and does not adequately show how it violates the right to privacy and right to equality and that also the right to privacy can be curtailed by following due process of law.
4. It was argued that Section 377 IPC does not violate the right to privacy and dignity guaranteed under Article 21 of the Constitution.
5. Learned senior counsel 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 indignant Article 14 as it dreams a particular community referred to as homosexuals or gays is without any basis.

RESPONDENT’S ARGUMENTS

1. Respondent contended that Interpretation of Section 377 is not in consonance with the scheme of the IPC, with hooked up ideas of interpretation and with the converting nature of society
2. It was argued that the phraseology of Section 377 (‘Carnal intercourse against the order of nature’) is quaint and archaic, it need to receive which means which presentations the era at the same time as it become enacted (1860). Section 377 ought to be interpreted withinside the context of its placement withinside of the IPC as criminalizing an act in some way adversely affecting the human body.
3. It was contended by counsel that Section 377 is impermissibly vague, delegates policy making powers to the police and other authorities and consequently affects them in form of in harassment and abuse of the rights of LGBT persons.
4. And that 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 sexuality is one of the aspects of human being and are assured by Article 21.
5. By criminalising these acts,  which are an expression of their core identity regarding their  sexual orientation and sexual personality of homosexual men, Section 377 makes them out to be criminals and treat them as criminal with deleterious consequences which subsequently impairing their human dignity.

         JUDGEMENT

1. In view of the above debate Court held that the Section 377 IPC does not suffer from the vice of unconstitutionality and the order given by the Division Bench of the High court is legally unsustainable and the appeals are accordingly allowed, the impugned order is set aside.
2. Court viewed that that they merely pronounced on the correctness of the view taken by the Delhi High Court at the constitutionality of Section 377 IPC and observed that the stated segment does now no longer be afflicted by any constitutional infirmity.
3. In this case, court opined that the anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC does not violates the right to privacy, autonomy and dignity, which is conferred by Article 21 of Indian constitution, the High Court has considerably relied upon the judgments of different jurisdictions. Though those judgments shed widespread mild on diverse factors of this proper and are informative in terms of the plight of Sexual minorities, we experience that they can’t be carried out blindfolded for finding out the constitutionality of the regulation enacted through the Indian legislature. This view was expressed as early as in 1973 in Jagmohan Singh v. State of U.P. [i]
4. As the Respondent alleged that Section 377 IPC is violative on the ground that the same has been used to perpetrate harassment, blackmail and torture on sure persons, particularly the ones belonging to the LGBT. But court while referring the case of Sushil Kumar Sharma v. Union of India and Ors[ii]  and held that if that treatment is not expressed by law nor condoned by them then the fact that police authorities misuse it does not make it ultra vires, and mere possibility of abuse of a provision of law does not per se invalidate a legislation. It should be presumed; legislation of a particular law would be done “not with an evil eye and unequal hand.”

• While dealing with the issue of violation of Article 21 of the Constitution.  Court said that the requirement of substantive due process has been read into the Indian Constitution through a combined reading of Articles 14, 21 and 19 and it should pass the test of constitutionality by looking at these provisions which purports to limitation or restriction the Right to life and liberty, together with the rights of privacy, dignity and autonomy, as envisaged below Article 21. In order to fulfil this test, the law must not only be competently legislated i.e. by following procedure establish by law and also be just, fair and reasonable. Arising from this are the notions of legitimate state interest and the principle of proportionality.
• Here in this case court referred a case of Maneka Gandhi v. Union of India[iii], Court laid down the due process requirement in the following words:

“13. Articles dealing with different fundamental rights contained in Part III 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.”

• The right to privacy is also conferred by Article 12 of the Universal Declaration of Human Rights (UDHR) (1948), of which  India is signatory and also by  Article 17 ICCPR of the (International Covenant on Civil and Political Rights). It has been examine into Article 21 through an expansive analyzing of the right to life and liberty. However 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.[iv]and Gobind v. State of MP[v] (which have been followed in a number of other cases.
• Court explained its view by the words enumerated in case of Gobind v. State of M.P[vi] 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 we do not consider that the right is absolute.
• While discussing whether the High Court was justified in entertaining challenge to Section 377 IPC despite the fact that respondent had not laid factual foundation to support its challenge. Court tried to resolve it by consideration of some precedents.
  • In Southern Petrochemical Industries v. Electricity Inspector[vii],

While dealing with the question whether the 2003 Act was violative of the equality clause enshrined in Article 14 of the Constitution, 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 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 2003 Act, the same would be arbitrary by reason of being discriminatory in nature and ultra vires Article 14 of the Constitution of India

1. Court also mentioned the case of  Seema Silk and Sarees v. Directorate of Enforcement[viii], Court observed: “In absence of such factual foundation having been pleaded, we are of the opinion that no case has been made out for declaring the said provision ultra vires the Constitution of India.”

1. Court said that the writ petition filed by the respondents was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, but at the same time it failed to give details of incidents of discriminatory mindset exhibited through the State groups toward sexual minorities and consequential denial of fundamental human rights to. Respondent has also not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities. In the affidavit before the court they mentioned only  estimated HIV prevalence among FSW (female sex workers) ,among MSM (men who have sex with men), the total population of MSM the State-wise break up of estimated size of high risk men who have sex with men.

However these details are wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory behaviour either by State or its agencies or  by the society.  

1. On the question whether a particular classification is Constitutional or unconstitutional Court mention the case of  Re: Special Courts Bill,[ix] 1978, while delivering Judgment and hold the view that the classification must not be arbitrary but must be rational; In order to pass the test, two conditions must be satisfied, i.e. (1) that the classification must based an intelligible differentia  and (2) that differentia must have a rational relation to the object sought to be achieved by the Act.
2. And those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute are two different classes and the people falling in the latter category cannot assert that the Section 377 suffers from the vice of arbitrariness and or any type of irrational classification. What Section 377 does is simply to outline particular offence and prescribe punishment for that offence which may be offered if in the Trial carried out according with the provisions of the Code of Criminal Procedure and different statutes of the equal own circle of relatives the character is observed guilty.   Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.

1. Court  While reading down the judgment of  Division Bench of the High Court , opined that the  neglected that a miniscule fraction of the country’s populace represent lesbians, gays, bisexuals or transgenders and in closing extra than a hundred and fifty years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made any of the a reasonable  basis for declaring that section 377 of IPC ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

CONCLUSION

Thus After looking at the case we can say the Although  the high court declare it as unconstitutional but supreme court in an appeal declare it as unconstitutional and held that Section 377 of IPC is constitutionally valid. It is not violative of Article 14, 21, 19 of the constitution of India.

However, later in case of Navtej Singh v. Union of India[x], the Supreme Court unanimously held that Section 377 of IPC which criminalises carnal intercourse as unconstitutional.

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[i] (1973) 1 SCC 20.

[ii] (2005) 6 SCC 281.

[iii]  (1978) 1 SCC 248.

[iv] (1964) 1 SCR 332.

[v] 1975) 2 SCC 148.

[vi] Supra.

[vii] (2007) 5 SCC 447.

[viii] (2008) 5 SCC 580.

[ix] (1979) 1 SCC 380.

[x] AIR 2018 SC 4321.

This article is written by Vartika Singh of Faculty of Law, University of Allahabad, an intern under Legal Vidhiya