# 17 S.C.R. 116 SURESH KUMAR KOUSHAL AND ANOTHER v. NAZ FOUNDATION AND OTHERS

- **Citation:** [2013] 17 S.C.R. 116
- **Court:** Supreme Court of India
- **Decided:** 2013-12-11
- **Bench:** G.S. Singhvi, Sudhansu Jyoti Mukhopadhaya
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/17-s-c-r-116-suresh-kumar-koushal-and-another-v-naz-foundation-and-others-29095
- **Pages:** 139

## Headnote

Penal Code, 1860:
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
enacted by Parliament or State Legislature carries with it
presumption of constitutionality -
The presumption is
applicable to the pre-Constitutional as well as postConstitutional laws - Constitution of India, 1950 - Article 13.
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
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 -
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.
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
c
D
E
F
G
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- ·
restra

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B
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[2013) 17 S.C.R. 116
SURESH KUMAR KOUSHAL AND ANOTHER
v.
NAZ FOUNDATION AND OTHERS
(Civil Appeal N0.10972 of 2013)
DECEMBER 11, 2013
[G.S. SINGHVI AND SUDHANSU
JYOTI MUKHOPADHAYA, JJ.]
Penal Code, 1860:
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
enacted by Parliament or State Legislature carries with it
presumption of constitutionality -
The presumption is
applicable to the pre-Constitutional as well as postConstitutional laws - Constitution of India, 1950 - Article 13.
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
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 -
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.
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
c
D
E
F
G
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.
E
Doctrines/Principles:
Doctrine of Severability - Applicability.
Principle of presumption of constitutionality -
Applicability.
F
Principles of 'reading down' and 'reading into' -
G
H
Applicability.
Interpretation of Statutes - Reading down of statute -
Applicability.
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
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION
119
sexual acts in private between consenting adults. The
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
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
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
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
appeal.
Allowing the appeal, the Court
HELD: 1.1. 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 Constitution to the
extent that it takes away or abridges the rights conferred
A
B
c
D
E
F
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
I
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
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 toe 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 Statewise 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-GH; 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.
c
K.A. Abbas vs. The Union of India (UOI) and Anr. (1970)
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
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]
E
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] [246B-C]
D
E
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.
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
H
unconstitutionality and the declaration made by the
Division Bench of the High court is legally unsustainable.
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;
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)
E
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.
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
G
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
B
vs. Bombay Education Society [1955] SCR 568; Ram
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
2008 (9) SCR 870
referred to Para 16.4
G
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
D
2006 (7) Suppl. SCR 336
cited
Para 19.11
1970 (3) SCR 53
cited
Para 19.11
1980 (2) SCR 913
.c;ited
Para 19.11
E
1984 (2) SCR 664
cited
Para 19.11
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 1 o
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
1989 (1) SCR 689
cited
Para 19.17
F
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
c
1990 (1) Suppl. SCR 142
followed
Para 30
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
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
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
1952 SCR 597
· referred to
Para 52
1975 (1) SCR 687
referred to
Para 53
CIVIL APPELLATE JJJRISDICTION : Civil Appeal No.
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
Civil Appeal No. 10974, 10986,10981, 10983, 10984, 10975,
10973, 10985, 10976 ' 10980, 10982, 10977, 10978, 10979
of 2013.
Mohan Jain, ASG, J.S. Attri, Anand Grover, T.S. Doabia,
A
B
c
D
E
F
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:
(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.
c
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
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;
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,
E
F
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 JudeoChristian 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
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, nonprocreative sexual relations is unreasonable and arbitrary and
therefore violative of Article 14.
A
B
(iv) Another plea taken by respondent No.1 was that
Section 377 creates a classification between "natural" (penilevaginal) 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.
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
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
3.2.2006 and remitted the writ petition for fresh decision by the
High Court. The relevant portions of that order are reproduced
below:
D
E
F
"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
A
B
c
D
138
SUPREME COURT REPORTS
[2013] 17 S.C.R.
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.
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.
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
Writ Petition (C) No. 7 455 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:
B
c
D
E
F
G
H
'The sphere of privacy allows persons to develop human
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
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
377 I PC 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
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
of lesbians and transgender is said to be several lacs as
well.