Suresh Kumar Koushal v.

Naz Foundation
 (Civil Appeal No. 10972 of 2013).

28th January, 2014: In a case of a missed

opportunity to reconsider its decision
which recriminalized the homosexual and
transgender persons, the Supreme
Court of India has dismissed the review
petitions filed against its decision of
11.12.2013 in Suresh Kumar Koushal v.Naz
Foundation (Civil Appeal No. 10972 of
2013). In Koushal, the Court had upheld
the validity of Sec 377, Indian Penal Code.
 Cont…
• 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 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 Health,
Safety, Convenience, Decency and Morals)
 Cont…
• 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 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.
 Cont…
• 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, the home.
 Cont…
• 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 Constitution does not deny any citizen the
right to fully develop relationships with other
persons of the same gender by casting a shadow
of criminality on such sexual relationships.
 Cont…
• 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 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. It was also referred to the legislative
history of Section 377 IPC and argued that this provision
perpetuates violation of fundamental rights of LGBT
persons.
 Cont…
• The history of unnatural offences against the order
of 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 Judeo-Christian moral and 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.
 Cont…
• The learned Attorney General submitted that
the declaration granted by the High Court
may 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
activity between the two consenting adults in
private.
 Cont…
• Another significant canon of determination of constitutionality is
that the Courts would be reluctant to declare a law invalid or ultra
vires on account of unconstitutionality. The Courts would accept an
interpretation, which would be in favour of constitutionality rather
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 preferably put into service the
principle of 'reading down' or 'reading into' the provision to make 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 the recent judgment in Namit Sharma v. Union of India
(2013)1 SCC 745.
 Cont…
• 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 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 another. 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 the law and create a new law
which in its opinion is more desirable.