Suresh Kumar Koushal v. Naz Foundation
Supreme Court of India · 11 December 2013 · 2 judges
Overruled in whole or in part by Navtej Singh Johar v. Union of India (2018), which says: “The decision in Suresh Koushal (supra), not being in consonance with what we have stated hereinabove, is overruled.”
The Court set aside the Delhi High Court's declaration that Section 377 IPC was unconstitutional as applied to consensual sexual acts of adults in private, holding the section free of constitutional infirmity and leaving change to Parliament.
Facts
NAZ Foundation, an NGO working on HIV/AIDS prevention among men who have sex with men, filed a public interest writ petition in the Delhi High Court in 2001 seeking a declaration that Section 377 IPC, so far as it penalised sexual acts in private between consenting adults, violated Articles 14, 15, 19 and 21. The High Court first dismissed it as academic; the Supreme Court remitted it in 2006. On 2 July 2009 the High Court declared Section 377 violative of Articles 21, 14 and 15 insofar as it criminalised consensual sexual acts of adults in private. The Union of India did not appeal, but several individuals and organisations, including Suresh Kumar Koushal, challenged that order in the Supreme Court.
Questions before the Court
- What is the scope of judicial review of a pre-Constitution law, and does the presumption of constitutionality apply to Section 377 IPC?
- Does Section 377 IPC violate Articles 14 and 15 by an arbitrary or irrational classification?
- Does Section 377 IPC violate the rights to privacy, dignity and autonomy under Article 21?
- Was the High Court justified in declaring the section unconstitutional on the material placed before it?
What the Court held
- All laws, including pre-Constitution laws adopted by Parliament, carry a presumption of constitutionality. Self restraint must guide judicial review, and a law cannot be struck down merely because it has fallen into disuse or social perceptions have changed, unless a clear constitutional violation is proved.
- On its plain meaning and legislative history, Section 377 applies irrespective of age and consent. It does not criminalise any people, identity or orientation, but identifies certain acts as offences.
- Those who engage in carnal intercourse in the ordinary course and those who do so against the order of nature are different classes, so Section 377 does not suffer from arbitrariness or irrational classification under Articles 14 and 15.
- The writ petition lacked a factual foundation of discrimination. Misuse by police is not a reflection of the vires of the section, and a minuscule fraction of the population with fewer than 200 prosecutions in 150 years could not ground invalidity.
- Section 377 does not suffer from unconstitutionality. The appeals were allowed and the writ petition dismissed, leaving Parliament free to delete or amend the section.
Why it matters
The judgment reversed the Delhi High Court's reading down of Section 377 IPC and upheld the provision in full. It rests on the presumption of constitutionality of pre-Constitution laws, judicial restraint where Parliament has chosen not to amend a law, the need for a factual foundation in constitutional challenges, and caution against applying foreign judgments without regard to Indian conditions.
In the Court's words
Copied from the official judgment; each passage links to its page.
“Nonetheless 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 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.”
“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 legitimacy of its purpose and its need.”
“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 and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.”
“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 of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity.”
Provisions interpreted
Related judgments
Case and bench
- Parties
- Suresh Kumar Koushal v. NAZ Foundation
- Case
- Civil Appeal No. 10972 of 2013 (arising out of SLP (C) No. 15436 of 2009), with connected civil appeals
- Decided
- 11 December 2013
- Bench
- G.S. Singhvi, J., Sudhansu Jyoti Mukhopadhaya, J.
- Opinions
- Unanimous. Judgment delivered by G.S. Singhvi, J.; Sudhansu Jyoti Mukhopadhaya, J. also signed. No separate opinion.
Questions on this case
4 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Landmark Judgments Practice Set 1
Navtej Singh Johar v. Union of India (2018), which held Section 377 IPC unconstitutional in so far as it criminalised consensual sexual conduct between adults, expressly overruled:
- A. E.V. Chinnaiah v. State of Andhra Pradesh
- B. Suresh Kumar Koushal v. Naz Foundation
- C. P. Rathinam v. Union of India
- D. Sowmithri Vishnu v. Union of India
Show the answer
B. Suresh Kumar Koushal v. Naz Foundation
The Constitution Bench in Navtej Singh Johar held that Suresh Kumar Koushal v. Naz Foundation ((2014) 1 SCC 1), which had upheld Section 377 IPC in full, 'needs to be, and is hereby, overruled'. Sowmithri Vishnu was overruled in Joseph Shine (2018), P. Rathinam in Gian Kaur (1996) and E.V. Chinnaiah in State of Punjab v. Davinder Singh (2024).