Dr.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
ACADEMIC SESSION:
2015 – 2016

CRIMINAL LAW
Suresh Kumar Kaushal vs. Naz Foundation: A Critical Analysis

SUBMITTED TO:

Prof. K A Pandey

ASSISTANT PROFESSOR (LAW)

SUBMITTED BY:

PAARTH NAITHANI ROLL NO. 87, SECTION B

Dr. RMLNLU, LUCKNOW

B.A. LL.B (H), SEMESTER III

 Case Note

Procedural History
The first challenge to the constitutionality of §377 of the Indian Penal Code, 1860 (‘IPC’) was
made in 1994 by the AIDS Bedbhav Virodhi Andolan. However, this petition was dismissed
in 2001 as the organization did not appear in the matter.

In 2001, a petition was filed by the Naz Foundation before the Delhi High Court that was
dismissed in 2004 because it did not have the locus standi to challenge its constitutionality.

In 2006, an appeal was filed before the Supreme Court where the case was remanded back to
the Delhi High Court to be decided on merits.

In 2009, a Division Bench of the Delhi High Court passed an order in Naz Foundation v. Govt.
of NCT of Delhi reading down §377 to exclude sexual acts between consenting adults. It held
that interpreting §377 to include these acts would violate Articles 14, 15 and 21 of the
Constitution of India.

An appeal against this judgment was filed before the Supreme Court in 2009 by Suresh Koushal
(an astrologer), and in December 2013, the Supreme Court overruled the judgment of the Delhi
High Court reading down §377.

This is a case note on that judgement.

 ARTICLE 14 and Section 377, IPC
Section 377. –

“Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of

nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or
with imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.”

14. Equality before law The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.

Court proceeded to determine whether the classification in the present case was
unconstitutional on account of being in violation of Article 14.

The appellants submitted that §377 did not target a particular class (of homosexuals), nor did
it make any classification. The provision merely criminalized ‘carnal intercourse against the
order of nature’, independent of the gender or sexual orientation of the person. Hence,
according to the appellants, the finding of the Delhi High Court that §377 infringed Article 14
was erroneous.

The respondents, on the other hand, were of the view that §377 was in violation of Article 14
as it did not make a classification that was apparent on the face of it.

It was argued that §377 was too broadly phrased as it could be interpreted to include a number
of acts that could not be classified as illegal. This included carnal intercourse between husband
and wife, carnal intercourse between man and woman for pleasure without the possibility of
conception, use of contraceptives between man and woman, anal sex between husband and
wife and consenting carnal intercourse between man and man.

The section was argued to be in violation of Article 14 since it sought to introduce a

classification that was not based on rational criteria and the object that it sought to advance (a
Victorian notion of sexual morality which tolerated only procreative sex) could not be a
legitimate state object.

§377 criminalized all forms of sexual intercourse that homosexual men could indulge in, since
the penetrative sexual acts that they engage in are essentially penile non vaginal. Thus, it was
contended that the classification in §377 between carnal intercourse in accordance with the
order of nature and carnal intercourse which is against the order of nature was unintelligible,
arbitrary and unscientific.

In the Court's opinion, those who indulge in carnal intercourse in the ordinary course of nature
and those who indulge in carnal intercourse against the order of nature constitute different
classes, and it could not be claimed that such a classification under Article 14 was arbitrary or
irrational. §377 was merely defining the particular offence and prescribing punishment for the
same in the event that the person was found guilty. Hence, the Delhi High Court's declaration
of §377 being in violation of Articles 14 and 15 of the Constitution of India was found to be
incorrect.

Another issue before the Supreme Court was with respect to the vagueness of §377. The
respondents argued that §377 was impermissibly vague, delegating policy making powers to
the police, which thereby resulted in harassment and abuse of the rights of LGBT persons

The scope of §377 was excessively broad and there was no reasonable identification of the acts
that were prohibited, thereby resulting in the arbitrary application of a penal law, which
violated Article 14.

The Court noted that although the vagueness and arbitrariness of a provision may render it
unconstitutional, the vagaries of language and prior application of the law must also be
considered.

Therefore, the Supreme Court did not find adequate reasons to hold §377 unconstitutional
based on the alleged vagueness of the provision.
 ARTICLE 15 and Section 377, IPC
Article 15 - The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.

It was contended by the appellants that the right to sexual orientation can always be restricted
in the interests of morality and health.

It was also argued that during the Constituent Assembly debates, the founding fathers of the
Constitution did not contemplate including ‘sexual orientation’ within the word ‘sex’ as used
in Article 15.

Also, the promotion of majoritarian sexual morality was a legitimate form of state interest.

However, the respondents contended that the use of the word ‘women’ in Article 15(3) must
not be allowed to limit the understanding of the word ‘sex’ in Article 15(1) so as to “reduce it
to a binary norm of man and woman only”. The fact that the Government of India had included
an option for ‘others’ in the sex column of passport application forms indicated that the
expression ‘sex’ was not to be restricted to man and woman alone.

The Delhi High Court had come to the conclusion that sexual orientation was a ground
analogous to sex and that discrimination on the basis of sexual orientation was not permitted
by Article 15.

The Supreme Court, however, failed to address the question of whether Article 15 included the
right to sexual orientation within its ambit or not.
 ARTICLE 21 and Section 377, IPC
“ 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. “

The respondents argued that private and consensual sexual relations would fall within the
ambit of the protection granted by this provision because Article 21 includes the right to privacy
and dignity.

A. THE RIGHT TO HEALTH, BODILY INTEGRITY AND SEXUAL CHOICES

The respondents argued that the presence of §377 in the IPC hindered strategy adopted by
for the prevention and control of HIV/AIDS in the country. This was because the section
propagates a negative and stereotypical understanding of sexual minorities and their behavior.
This drives them underground and impedes programs intended to benefit them. Thus, §377
violates the right to health of LGBT persons and there was a strong justification grounded in
public health concerns for deleting the said section.

It was also asserted that the understanding that non-procreative sexual acts are ‘against the
order of nature’ is refuted by socio-scientific and anthropological evidence, as well as by the
natural occurrence of homosexuality in society at large. Thus, the said individuals could not be
deprived of their right to health on grounds of homosexual acts being ‘unnatural’.

The appellants, however, contended that restrictions could be imposed on constitutionally

guaranteed rights on the grounds that the restricted acts had the potential of causing harm to
the persons indulging in them. Since anal sex was a high risk activity that exposed its
participants to the risk of acquiring HIV/AIDS, legislative measures to curb this practice were
constitutionally permitted. These concerns were especially relevant since the disease can be
transmitted to an unsuspecting female if her partner was infected.

The court held that the right to bodily integrity, sexual autonomy and privacy were not absolute
and can be restricted.

B. THE RIGHT TO DIGNITY

It was argued by the respondents that §377, in its interpretation and implementation,
deprived homosexuals of a ‘full moral citizenship’ (a concept that was developed by the South
African Supreme Court).
The impugned provision did not merely criminalize an act. It was contended that by
criminalizing an act that was central to the sexual identity of homosexuals, the provision
targeted a class of individuals, thus depriving them of their dignity. Further, despite the absence
of a large number of actual prosecutions under the provision, it has been used as a tool for
extortion, detention, harassment, extortion and forced sex. Thus, there was a significant and
direct impact on the lives of the said category of individuals.

However, the Supreme Court rejected this claim made by the respondents, stating that such
misuse of the provision was neither mandated nor condoned by the language of the provision
itself. The constitutional vires of the section would not be affected merely by the fact that it
was misused by the police.

C. THE RIGHT TO PRIVACY

It was argued by the respondents that the right to privacy guaranteed under Article 21
extended to intimate relations within the confines of the home and this right is violated by the
operation of §377. This was because this right can be curtailed only through a substantive due
process. However, the provision did not afford such a process.

On the other hand, the appellants argued that the impugned section does not violate the right
to privacy. Rights guaranteed under Article 21 were subject to the procedure prescribed by
law and the Code of Criminal Procedure, 1973 laid down a fair procedure for the curtailment
of this right.

The Court observed that this right is subject to certain restrictions and is not absolute.
 CONCLUSION

The constitutionality of §377 of the IPC was thus upheld by the Supreme Court. In coming
to this conclusion, the Court examined the provision in light of Articles 14, 15 and 21 of the
Constitution.

With respect to Article 14, the Court reasoned that the impugned provision made a valid
classification between those who indulged in acts ‘against the order of nature’ and those who
did not. By merely criminalizing the commission of such acts, the provision did not violate
Article 14.

Next, with respect to Article 15, the Court said that ‘sex’ in Article 15 should not be interpreted
to include ‘sexual orientation’ as well. Thus, discrimination on this ground would be rendered
impermissible. Instead, it held that the protection afforded by this Article would not extend to
members of the LGBT community.

Finally, addressing the right to privacy and dignity under Article 21, the Court held that these
rights were not violated through the operation of §377. It reasoned that these rights are not
absolute and are subject to certain restrictions.

Rejecting the reliance of the Delhi High Court on judgments from foreign jurisdictions, the
Court emphasized on the requirement of showing legislative deference. Thus, it concluded that
§377 is constitutionally valid in its current form.

It’s important to note that while concluding his opinion, Justice Singhvi stated that the Court
had merely commented on the constitutionality of the impugned §377 of the IPC. However, it
was open to the legislature to amend the code as it felt necessary.
 Additional Note
In its recent judgment in National Legal Services Authority v. Union of India (‘NALSA’), the
Supreme Court accorded legal recognition to transgender persons. It upheld their rights under
Articles 14, 15, 19(1)(a) and 21 of the Constitution. It also directed the state to take a range of
measures to ensure the realization of these rights, specifically addressing public health,
sanitation, socio-economic rights, stigma and public awareness.

The divergence in the reasoning of the Court arises mainly due to the elimination of the
distinction between ‘act’ and ‘identity’. In Koushal, the Court had reasoned that §377 did not
target a certain class of people, but merely specific acts. Anyone committing these acts would
come within the ambit of the law, irrespective of sexual orientation or gender identity.

However, in its judgment in NALSA, the Court states in explicit terms that a person's conduct
is inextricably connected to their gender identity. A transgender person's behavior and
presentation reflects their inherent personality and cannot be prohibited by the state. The
act/identity dichotomy that was the basis of the Koushal judgment thus lapses.

Additionally, the Koushal bench had also noted that only a ‘miniscule fraction’ of the total
population belonging to the LGBT community had been prosecuted under §377 and this could
not form the basis for the declaration of the law as ultra vires. On the other hand, the NALSA
bench noted that transgenders, though insignificant in number, ‘are still human beings and
therefore they have every right to enjoy their human rights’.

The recent judgment of the Supreme Court in NALSA might impact the legitimacy of the
judgment in Koushal.