SURESH KUMAR KOUSHAL AND ANOTHER v. NAZ FOUNDATION AND OTHERS

Citation: [2013] 17 S.C.R. 116

Court: Supreme Court of India

Bench: G.S. SINGHVI, S. J. MUKHOPADHAYA

Case summary

SURESH KUMAR KOUSHAL AND ANOTHER v. NAZ FOUNDATION AND OTHERS.pdf

Judgment text

[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 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 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 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 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. s. 377 - Acts of carnal intercourse against the order of 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 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 post- Constitutional 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 combined reading ofArticles 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 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: 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 over legislations is plenary -. But the courts exercise self- · restraint keeping in mind importance ofprinciple of separation of powers and value of democracy. Doctrines/Principles: Doctrine of Severability - Applicability. Principle of presumption of constitutionality - Applicability. Principles of 'reading down' and 'reading into' - 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 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 by Part Ill of the Constitution. In fact a constitutional duty 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 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 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 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 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. 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 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 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 recognized in Article 13 which renders the law, which is 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. 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 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 _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 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. 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. 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] 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 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 todelete 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 amendment in the law. While this does not make the law 0 immune from constitutional challenge, it must' nonetheless guide understanding of character, scope, ambit and import. [Para 32) [206-G-H; 207-A-C] 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 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 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 orientation. [Para 38) [216-C-D; 227-8, D-F] Lohana Vasantlal vs. State AIR 1968 Guj 352; State v. 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 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 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 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 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 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 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 estimated number of HIV infections as in 2009 has been. given in the affidavit. [Paras 39 and 40) [227-F-G, 228-G- H; 229-A-D] Southern Petrochemical Industries vs. Electricity 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 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 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 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 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 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 (2) SCR 476 - followed. 3. 4. The vagueness and arbitrariness go to the root 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 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. 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 combined reading of Articles 14, 21 and 19 and 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 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] 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 (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] 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 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 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] [246- B-C] 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 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. 5. Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable. It is clarified that this Court has merely pronounced 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 8 legislature shall be free to consider the desirability and 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 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 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) 2 sec 343; Southern Petrochemical Industries VS. Electricity Inspector (2007) 5 SCC 447: 2007 (6) SCR 955; Tamil Nadu 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 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. 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. 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 (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 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. 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 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) 3 SCC 569: 1994 (2) SCR 375; M Nagaraj vs.

Uo/ (2006) 8 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 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: "The Indian Constitution - Cornerstone of A Nation", by Granville Austin - referred to. Case Law Reference : 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 [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 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 2008 (8) SCR 201 referred to Para 16.

4 1950 SCR 88 referred to Para 16. 8 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 (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 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 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 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 1997 (1) SCR 923 cited Para 19. 11 1999 (1) SCR 117 cited Para 19. 11 2005 (1) SCR 1019 cited Para 19. 11 2005 (1) SCR 494 cited Para 19. 11 (2008) 12 sec 1o cited Para 19. 11 2010 (5) SCR 381 cited Para 19. 11 1983 (2) SCR 690 cited Para 19. 13 (2012) 2 SCALE 126 cited Para 19. 13 (2011) 11 SCALE 182 cited Para 19.

13 1980 (3) SCR 855 cited Para 19. 14 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 [1995] 2 SCR 513 cited Para 19. 14 [1999] 1 SCR 497 cited Para 19. 14 1982 (2) SCR 272 cited Para 19. 16 (1970) 2 sec 760 cited Para 19. 16 AIR 1960 All 650· cited Para 19. 16 2009 (12) SCR 978 cited Para 19. 16 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 1992 (1) SCR 406 cited Para 19. 18 AIR 1982 Kant. 46 cited Para 19. 18 AIR 1946 PC 66 cited Para 19. 19 [1955] SCR 568 cited· Para 19. 19 1959 SCR 279 followed Para 27 2003 (1) Suppl. SCR 638 relied on Para 27 1957 SCR 930 followed Para 29 (2013) 1 sec 745 relied on Para 30 1983 (2) SCR 165 followed Para 30 (1979) 2 sec 249 relied on Para 30 1981 (1) SCR 206 followed Para 30 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 AIR 1934 Lah 261 referred to Para 38 1969 Cri LJ 818 referred to Para 38 (1982) 3 sec 9 referred to Para 38 1985 (2) WLN 560 referred to Para 38 1992 (2) Crimes 455 referred to Para 38 1992 Cri LJ 488 referred to Para 38 (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 1979 (2) SCR 476 followed Para 41 1982 (2) SCR 272 followed Para 44 1971 (2) SCR 446 relied on Para 44 (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, 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, 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, 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. 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; Respondent-In-Person. The Judgment of the Court was delivered by G. S. SINGHVI, J. 1. Leave granted. 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 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 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 not to be able to consent to a sexual act. This clarification 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 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. Its work has focussed on targeting 'men who have sex with men' (MSM) or homosexuals or gays in consonance with the 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 between consenting adults is violative of Articles 14, 15, 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 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 nature"; that the provision is based on traditional Judeo- Christian 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 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 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 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/ 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 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 [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. (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 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: "The challenge in the writ petition before the High Court 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 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.

7455 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 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 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 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 [G.

S. SINGHVI, J. ] encouraged not to conceal information so that they are 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 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 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 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 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 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 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 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: '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 IPC denies a gay person a right to full personhood 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. This vast majority (borrowing the language of the South African Constitutional Court) is denied "moral full citizenship".

Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual se)<ual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in "The Indian Constitution - Cornerstone of A Nation", "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". In the words of Justice V. R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional armour. The spirit of Man is at 8 the root of Article 21, absent liberty, other freedoms are frozen. A number of documents, affidavits and authoritative reports of independent agencies and even judgments of various courts have been brought on record to demonstrate the widespread abuse of Section 377 IPC for brutalizing MSM and gay community persons, some of them of very recent vintage.

If the penal clause is not being enforced against homosexuals engaged in consensual acts within privacy, it only implies that this provision is not deemed essential for the protection of morals or public health vis-a-vis said section of society. The provision, from this perspective, should fail the "reasonableness" test. " 10. The High Court discussed the question whether morality can be a ground for imposing restriction on fundamental rights, referred to the judgments in Gobind v. State of Madhya Pradesh and another (1975) 2 SCC 148, Lawrence v. Texas 539 U. S. 558 (2003), Dudgeon v. UK, European Court of Human Rights Application No. 7525/1976, Norris v. Republic of Ireland, European Court of Human Rights Application No. 10581/1983, The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, South African Constitutional Court 1999 (1) SA 6, the words of Dr.

Ambedkar quoting Grotius while moving the Draft Constitution, Granville Austin in his treatise "The Indian Constitution - Cornerstone of A Nation" ' the Wolfenden Committee Report, 172nd Law Commission of India Report, the address of the Solicitor General of India before United Nations Human Rights Council, the opinion of Justice Michael Kirby, former Judge of the Australian High Court and observed: "Thus popular morality or public· disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of "morality" that can pass the test of compelling state interest, it must be "constitutional" morality and not public morality.

The argument of the learned ASG that public morality of homosexual conduct might open floodgates of delinquent behaviour is not founded upon any subsiantive material, even from such jurisdictions where sodomy laws have been abolished. Insofar as basis of this argument is concerned, as pointed out by Wolfenden Committee, it is often no more than the expression of revulsion against what is regarded as unnatural, sinful or disgusting. Moral indignation, howsoever strong, is not a valid basis for overriding individuals' fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view. In Indian context, the latest report (172nd) of Law Commission on the subject instead shows heightened realization about urgent need to follow global trends on the issue of sexual offences.

In fact, the admitted case of Union of India that Section 377 IPC has generally been used in· cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalization of adult samesex conduct does not serve any public interest. The compelling state interest rather demands that public health measures are strengthened by de-criminalization of such activity, so that they can be identified and better focused upon. For the above reasons we are unable to accept the stand of the Union of India that there is a need for retention of Section 377 IPC to cover consensual sexual acts between adults in private on the ground of public morality. " 11. The High Court then considered the plea of respondent No.

1 that Section 377 is violative of Article 14 of the Constitution, referred to the tests of permissible classification as also the requirements of reasonableness ~nd nonarbitrariness as laid down by this Court and held that the classification created by Section 377 IPC does not bear any rational nexus to the objective sought to be achieved. The observations made by the High Court on this issue are extracted below: "It is clear that Section '377 IPC, whatever its present pragmatic application, was not enacted keeping in mind instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a conception of sexual morality specific to Victorian era drawing on notions of carnality and sinfulness. In any way, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private.

The second legislative purpose elucidated is that Section 377 IPC serves the cause of public health by criminalizing the homosexual behaviour. As already held, this purported legislative purpose is in complete contrast to the averments in NACO's affidavit. NACO has specifically stated that enforcement of Section 377 IPC adversely contributes to pushing the infliction underground, make risky sexual practices go unnoticed and unaddressed. Section 377 JPC thus hampers HIV/AIDS prevention efforts. Lastly, as held earlier, it is not within the constitutional competence of the State to invade the privacy of citizen's lives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalization of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable.

The state interest "must be legitimate and relevant" for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affect~ the rights and interests of homosexuals and deeply impairs their dignity. " 12. The High Court took note of the Declaration of Principles of Equality issued by 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, Romer v Evans, Vriend v.

Alberta and held: "Section 377 IPC is facially neutral and it apparently targets not identities but acts, but in its operation it does end up unfairly targeting a particular community. The fact is that these sexual acts which are criminalised are associated· more closely with one class of persons, namely, the homosexuals as a class. Section 377 IPC has the effect [GS. SINGHVI, J. ) o. f viewing all gay men as criminals. When every1hing associated with homosexuality is treated as bent, queer, repugnant. the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that_a significant group of the population is, because of its sexual nonconformity, persecuted, marginalised and turned in on itself. [Sacl')s, J. in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, para 108]. 13.

The High Court also discussed the case of Anuj Garg v. Hotel Association of India in detail and made reference to the principles of strict scrutiny and proportionality review as borrowed from the jurisprudence of the US Supreme Court, the Canadian and European Courts and proceeded to observe: "On a harmoniou~ construction of the two judgments, the Supreme Court must be interpreted to have laid down that the principle of 'strict scrutiny' would not apply to affirmative action under Article 15(5) but a measure that disadvantages a vulnerable group defined on the basis of a ct:iaracteristic that relates to personal autonomy must be subject to strict scrutiny. Thus personal autonomy is inherent in the grounds mentioned in Artide 15. The grounds that are not specified in ArtiCle 15 but are analogous to those specified therein, will be those which have the potential to impair the personal autonomy of an individual. This view was earlier indicated in Indra Sawhney v.

Union of India, (1992) Supp. 3 SCC 217.... As held in Anuj Garg, if a law discriminates on any of the prohibited grounds, it needs to be tested not m~rely against "reasonableness" under Article 14 but be subject to "strict scrutiny". The impugned provision in Section 377 IPC criminalises the acts c:if sexual minorities particularly men who have sex with men and gay men. It disproportionately impacts them solely on the basis of their sexual orientation. The provision runs counter to ihe constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. Section 377 IPC in its application to sexual acts of consenting adults in privacy discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited ground of sex.

A provision of law branding one section of people as criminal bas~d wholll( on the State's moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review. A constitutional provision must be construed, not in ·a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains· flexible enough to meet the newly emerging problems. [Francis Coralie Mullin v. Union Territory of Delhi (1981) 1 SCC 608, Para 6 of SCC). " 14. Finally, the High Court elaborated upon the scope of the Court's power to declare a statutory provision invalid, referred to the judgments in Stde of Madras v. V. G. Row, R. (Alconbury Ltd. ) v. Environment Secretary, [2001) 2 WLR 1389, West Virginia State Board of Education_ v. Barnette, 319 US 624 (1943), l. R. Coelho (Dead) by LRs v.

State of Tamil Nadu & Ors. , (2007) 2 SCC 1 and Raja Ram Pal v. Hon'ble [G. S. SINGHVI, J. ] Speaker, Lok Sabha & Ors. , (2007) 3 SCC 184, Peerless General Finance Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343 and held: "It is true that the courts should ordinarily defer to the wisdom of the legislature while exercising the power of juGttefal review of legislation. But it is equally well settled that the degree of deference to be given to the legislature is dependent on the subject matter under consideration. When matters cif "high constitutional importance" such as constitutionally entrenched human rights - are under consideration, the courts are obliged in discharging their own sovereign jurisdiction, to give considerably less deference to the legislature than would oth. erwise be the case. In the present case, the two constitutional rights relied upon . i. e.

'right to personal liberty' and 'right to equality' are fundamental human rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian consideration. A Bill of Rights does not 'confer' fundamental human rights. It confirms their existence and accords them protection. After the conclusion of oral hearing, learned ASG filed his written submissions in which he claimed that the courts have only to interpre,t the law as it is and have no power to declare the law in"1alid. According to him, therefore, if we were to agree with the petitioner, we could only make recommendation to Parliament and it is for Parliament to amend the law. We are constrained to observe that the submission of learned ASG reflects rather poorly on his understanding of the constitutional scheme.

It is a fundamental principle of our constitutional scheme that every organ of the State, every authority under the Constitution derives its power or authority under the Constitution and has to act within the limits of powers. The judiciary is constituted as the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the prLnciple of majority rule implicitly recognizes the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights.

After the enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. To quote the words of Krishna Iyer, J. "... The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick readings of a Bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate. " 15. The order of the High Court has been challenged by large number of organizations and individuals including Joint Action Council Kannur and Shri B. P. Singhal, who were interveners before the High Court. During the pendency of the special leave petitions several individuals and organisations filed IAs for permission to intervene. All the IAs were allowed vide order dated 7. 2. 2011 and the applicants were permitted to act as interveners.

The details of the parties and interveners before this Court are as unqer: Case Name Description Details Number before the Court SLP (C) No. Suresh Petitioners Petitioners are 15436/2009 Kumar (Not parties citizens of India (CC No. Koushal & before the who believe they . 9255/2009) Anr. High Court) have the moral responsibility and duty in protecting cultural values of Indian society. Samajik Intervener- The applicant is Ekta Party IA No. 4/2009 political party registered by the Election Commission of India under Sec 29A, Representation of People Act, 1951 vide order dt. 20. 4. 1995. It is interested in the welfare of the citizens, their rights, functioning of the State and interest of public at large. Mr. Shyam Intervener-IA The applicant is Senegal No. 6/2009 film maker and a citizen.

He seeks ; impleadment in the SLP in light of the fact that due to the misunderstanding and confusion of thought with regard to homosexuality, all points of view must be projected before this Hon'ble Court. . Trust God lnterveners- The applicant is a Missionaries IA No. 7/2010 registered charitable trust having the main aim to preserve and protect life for humanity and earth and takes support from human rights, social and religious organisations, such as CBCI, NCCI and KCBC, etc. The applicant claims to be vitally interested in the outcome of the appeal and is an affected party. Minna Interveners - The applicants Saran & IA No. 8/2010 are parents of Others lesbian, gay, (Parents of bisexual and LGBT transgender Children) persons from different professional, socio-cultural backgrounds and different regions of India. They have a direct and immediate stake in the proceedings and are necessary and proper parties.

No prejudice will be caused to the petitioners if the applicants are impleaded but the applicants will sufferer irreparable harm and damage as criminalisation not only affects the LGBT persons but also their families. Their struggles of having to understand sexuality at odds with Section 377 IPC have resulted in accepting thei1 children's sexuality and the1 are acutely awarE of the social stigma prejudice, myths and stereotypes that surround the subject of homosexuality in India. Dr. Shekhar lnterveners - The Applicants Seshadri & IA No. 9/2010 are mental health Others · professionals (Professor who have been of practising as Psychiatry psychiatrists, al the clinical National psychologists Institute of and behavioral Mental psychologists in Health and the field of menta Neuro health in reputed Scie~ces, medical Bangalore) institutions throughout India. They claim to have had considerable expertise in addressing the mental health concerns of Lesbi.

an, Gay, Bisexual and Transgender persons. The Applicants submit that sexual orientatior is an immutable characteristic and is present a birth. Nivedita lnterveners - The Applicants Menon & I. A. No. 10/ are Others 2010 academicians (Professor who wish to in contribute to the Political debate on the Thought, issues raised by Jawaharlal the judgment anc Nehru to draw attention University) to the mental distress caused to the LGBT community. Raina lnterveners - The applicants Kapur & IA No. 13/ are law Ors. 2011 professors, teachers and research associates with Jindal Global Law School working in different fields of law such as jurisprudence, human rights, sexuality studies and law, criminal justice, and cultural studies and law, and feminist legal theory. They are concerned with the correct interpretation of statutes and the constitutional validity of Section '377 ! PC: [) SLP (C) No.

Delhi Petitioner The petitioner 24334/2009 Commission (Not parties has been for before the constituted Protection High Court) under the of Child Commissions Rights for Protection of Child Rights Ad, 2005 read with Gel MHA notification dt. 15. 1. 2008. Under Sec 13(1j) the Commission is empowered to take sue mote notice of deprivation and violation of child rights, non implementation of laws providing for protection and development of children, and non compliance of policy decisions, guidelines or instructions aimed at mitigating hardship and ensuring welfare of children and providing relief. Its functions .

include: study and ' monitor matters relating to constitutional and legal rights of children; examine and review safeguards for protection of child rights and effective implementation of the same; review existing law and recommend amendments; look into complaints of taking suo moto action in cases involving violation of child rights; monitor implementation of laws; present reports to the Central Government. It is the moral duty of the Commission to protect the best interest of children and provide them with an atmospt1ere where the freedom and dignity of all children is safe and a child may bloom without any fear of abuse. exploitation and deprivation. CC No. Ram Murti Petitioner He is a citizen of 13105/2009 (not party India and has a before the duty to report if High Court something illegal is happening. SLP (C) No. B. P. Petitioner 22267/2009 Singhal (Respondent 7 - Intervener [G. S. SINGHVI, J. ] before the High Court) SLP (C) No. B.

Krishna Petitioner (not The petitioner is 34187/2009 Bhat a party before a citizen of India the High and a public Court) spirited individual, social worker and environmentalist who believes in the Rule of Law and has successfully prosecuted a number of Plls in Karnataka High Court, other High Courts and the Supreme Court on issues of protection of green belt, illegal extraction of monies from citizens of Bangalore, property taxes, Illegal mining, stray dog menace, development of tanks, shifting of slaughter house, caste based I reservation, etc. j SLP (C) No. Joint Petitioner 286/2010 Action (respondent 6 Council, - Intervener Kannur before the High Court) SLP (C) No.

The Tamil Petitioner (not The petitioner is 872/2010 Nadu a party before a registered trust Muslim the High working for the Munnetra Court) betterment of the Kazhagam poor and downtrodden in general and for those belonging to the minority Muslim community in particular It is a mass based voluntary organisation of Muslims of Tamil Nadu functioning since 1955 in Tamil Nadu. The preside. nt appeared before the UN Minority Rights Working Group and the organisation has set up a Tsunami Relief Fund of Rs 7 million. It has worked against spread of AIDS and has worked [GS. SINGHVI, J] in blood donation and has been given two awards by the Tamil Nadu State AIDS Control Board. SLP (C) No. Raza Petitioner (not The petitioner is 873/2010 . Academy a party before an organisation tlie High working for Court) welfare of the general public and it has done tremendous work in public interest. SLP (C) No.

Krantikati Petitioner (not Krantikari 3q216/200 Manuvadi a party before Manuwadi Morcha the High Morcha Party & Court) (Revolutionary Anr. Manuist Front), is a Hindutva political organisation in India. It is one of the registered unrecognized political parties in India. The president of KMM is Ram Kumar Bhardwaj, grandson of freedom fighter Rudra Dutt Bhardwaj. CC No. Utkal Petitioner (not Note: There is no 19478/2009 Christian a party before information on Council the High the petitioner in rep. by Court) the SLP. Secretary Miss Jyotsna Rani Patro CC No. All India Petitioner (not The petitioner is 425/2010 Muslim a party before a registered Personal the High society Law Board Court) estc;iblished to protect and preserve Muslim Personal Laws. It strives to uphold the traditional values and ethos of the Muslim community and promotes essential values of Islam and also a national ethos among Muslims.

The members of the society are religious scholars (ulemas), Muslim intellectuals and professionals from different disciplines. SLP (C) No. Sh. S. K. Petitioner (not Petitioner is 20913/2009 Tijarawala a party before spokesperson of the High Yoga Guru Court) Swami Ramdev Ji is running a social welfare trust in the name 8 of "Bharat Swabhiman" Patanjali Yogpeeth Trust. Petitioner is an eminent social worker and write1 interested in protecting cultura values of the Indian society. SLP (C) No. Apostolic Petitioner (not With a desire to 20914/2009 Churches a party before promote unity, Alliance the High build rep. by its Court) relationships, anc bishop see increased Sam T. cooperation Varghese amongst Churches, a few pastors from growing independent churches in Kerala have come together and formed a body called the "Apostolic Churches Alliance" (ACA).

The Alliance has been formed witt the primary purpose of addressing spiritual, legal or any other kind of issue which may be relevant to thE Churches at any . given time or place. The ACA is a registered body with nine Pastors as members of the Core Group and is in its early stages of growth. Pastor Sam T. Varghese of Life Fellowship, Trivandrum, serves as its General Overseer. SLP (C) No. Prof. Bhim Petitioner (not 25364/2009 Singh a party before the High Court) CC No. Sanatan Petitioner (not 14042/2009 Dharam a party before Pritinidhi the High Sabha Court) Delhi (Registered) 16. ARGUMENTS 16. 1 Shri Amrendra Sharan, Senior Advocate appearing for the appellant in Civil Appeal arising out of SLP(C) No. 24334/2009 - Delhi Commission for Protection of Child Rights led arguments on behalf of those who have prayed for setting aside the impugned order. He was supported by Shri V. Giri, Senior Advocate appearing for Apostolic Churches Alliance [SLP(C) No.

20914/2009] and Utkal Christian Council [SLP(C) No. 19478/2009], Shri K. Radhakrishnan, Senior Advocate appearing for intervener - Trust God Missionaries, and S/Shri. Sushi! Kumar Jain, counsel for the appellant - Kranthikari Manuvadi Morcha Party (SLP(C) No. 36216/2009), Huzefa Ahmadi appearing for All India Muslim Personal Law Board (SLP(C) No. CC425/2010), Purshottaman Mui Ioli appearing in person for Joint Action Council, Kannur (SLP (C) No. 286/2010), Ajay Kumar for the appellant- S. K. Tijarawala (SLP(C) No. 20913/2009), Praveen Agrawal, counsel for the ·appellant -Suresh Kumar Kaushal (SLP(C) No. 15436/2009, H. P. Sharma, counsel for the appellant- B. P. Singhal (SLP(C) No. 22267/2009), K. C. Dua, counsel for appellant - S. D. Pritinidhi Sabha Delhi (SLP(C) No. CC . 14042/2009), PV. Yogeswaran for appellant - Shim Singh (SLP(C) No. 25346/ 2009), Lakshmi Raman Singh, counsel for appellant - Tamil Nadu Muslim Munn.

Kazhgam and Mushtaq Ahmad, counsel for appellant - Raza Academy (SLP(C) No. 873/2010). Shri Amarendra Sharan made the following arguments: 16. 2 That the High Court committed serious error by declaring Section 377 IPC as violative of Articles 21, 14 and 15 of the Constitution insofar as it criminalises consensual sexual acts of adults in private . completely ignoring that the writ petition filed by respondent no. 1 did not contain foundational facts necessary for pronouncing upon constitutionality of a statutory provision. Learned counsel extensively referred to the averments contained in the writ petition to show that respondent no. 1 had not placed any tangible material before the High Court to show that Section 377' h~d been used for prosecution of homosexuals as a class and that few affidavits and unverified reports of some NGOs relied upon by respondent no. 1 could not supply basis for recording a finding that homosexuals were being singled out for a discriminatory treatment. 16.

3 The statistics incorporated in the affidavit filed on behalf of NACO were wholly insufficient for recording a finding that Section 377 IPC adversely affected control of HIV/AIDS amongst the homosexual community and that decriminalization will reduce thEj number of such cases. 0 16. 4 The High Court is not at all right in observing that Section 377 IPC obstructs personality development of homosexuals or affects their self-esteem because that observation is solely based on the reports prepared by the academicians and such reports could not be relied upon for grant of a declaration that the se'ction impugned in the writ petition was violative of Articles 14 and 15 of the Constitution. In support of these arguments, learned counsel relied upon the judgments in Southern Petrochemical Industries v. Electricity Inspector (2007) 5 SCC 447, Tamil Nadu Electricity Board v. Status Spinning Mills (2008) 7 SCC 353 and Seema Silk , . and Sarees v. Directorate of Enforcement (2008) 5 SCC 580. 16.

5 That Section 377 ! PC is gender neutral and covers voluntary acts of carnal intercourse against the order of nature irrespecti·, ; of the gender of the persons committing the act. They pointed out that the section impugned in the writ petition includes the acts of carnal intercourse between man and man, man and woman and woman and woman and submitted that ' no Constitutional right vests in a person to indulge in an activity which has the propensity to cause harm and any act whicb has the capacity to cause harm to others cannot be validated. They emphasized that anal intercourse between two homosexuals is a high risk activity, which exposes. both the participating homosexuals to the risk of HIV/AIDS and this becomes even grave in case of a male bisexual having intercourse with female partner who may not even be aware of the activity of her partner and is yet exposed to high risk of HIV/AIDS.

They argued that Section 377 IPC does not violate the right to privacy and dignity guaranteed under Article 21 of the Constitution. 16. 6 That the impugned order does not discuss the concept of "carnal intercourse against the order of nature" and does not adequately show how the section violates the right to privacy and that also the right to privacy can be curtailed by following due process of law and the Code of Criminal Procedure prescribes a fair procedure, which is required to be followed before any person charged of committing an offence under Section 377 IPC can be punished. The right to privacy does not include the right to commit any offence as defined under Section 377 IPC or any other section. 16. 7 That the legislature has treated carnal intercourse against the order of nature as an offence and the High Court has not given reasons for reading down the section.

The presumption of constitutionality is strong and the right claimed should have been directly violated by the statute. Indirect violation is not sufficient for declaring Section 377 IPC violative of Articles 14, 15 and 21 of the Constitution. 16. 8 That Article 21 provides that the right to life and liberty is ·subject to procedure prescribed by law. He referred to the judgments of this Court in AK. Gopalan v. State of Madras 1950 SCR 88, R. C. Cooper v. Union of India (1970) 1 SCC 248, Maneka Gandhi v. Union of India (1978) 1 SCC 248 and submitted that Gopalan's case has not been overruled by Maneka Gandhi's case. 16. 9 That the term used in Section 375 IPC, which defines rape is 'sexual intercourse', whereas in Section 377 IPC the expression is 'carnal intercourse'. In Khanu v.

Emperor AIR 1925 (Sind), it was held that the metaphor 'intercourse' refers to sexual relations between persons of different sexes where the 'visiting member' has to be enveloped by the recipient organization and submitted that carnal intercourse was criminalized because such acts have the tendency to lead to 0 unmanliness and lead to persons not being useful in society. 16. 1 ORelying . upon the dictionary meanings of the words 'penetration' and 'carnal', Shri Sharan submitted that any insertion into the body with the aim of satisfying unnatural lust would constitute carnal intercourse. 16. 11 Assailing the finding of the High Court that Section 377 IPC violates Article 14, Shri Sharan submitted that the section does not create a clause and applies to both man and woman if they indulge in carnal intercourse against the order of nature.

Learned senior counsel argued that if the view expressed by the High Court is taken to its logical conclusion, any provision could be declared to be violative of Article 14. Shri Sharan further 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 offended Article 14 as it targets a particular community known as homosexuals or gays is without any basis. 16. 12. Shri K. Radhakrishnan, learned senior counsel appearing for intervener in I. A. No. 7 - Trust God Missionaries argued that Section 377 IPC was enacted by the legislature to protect social values and morals. He referred to Black's Law Dictionary to show that 'order of nature' has been defined as something pure, as distinguished from artificial and contrived. He argued that the basic feature of nature involved organs, each of which had an appropriate place. Every organ in the human body has a designated function assigned by nature.

The organs work in tand~m and are not expected to be abu~ed. If it is abused, it goes against nature. The code of nature is inviolable. Sex and food are regulated in society. What is preordained by nature has to be protected, and man has an obligation to nature. He quoted a Sanskrit phrase which transla_ted to "you are dust and go back to dust". Learned senior counsel concluded by emph'asising that if the declaration made by the. High Court is approved, then India's social structure and the institution of marriage will be detrimentally affected and . young persons will be tempted towards homosexual activities. 16. 13 Shri V. Giri, learned senior counsel argued that Section 377 IPC does not classify people into groups but it only describes an offence. He submitted that the High Court made two wrong assumptions: one, that sexual orientation is immutable and two, that sexual orientation can be naturally demonstrated only in a way as contemplated in Section 377 IPC.

Learned senior counsel submitted that what has been criminalized by Section 377 IPC is just the act, independent of the sex of people or sexual orientation. Shri Giri further submitted that sufficient evidence is not available to support the statement that Section 377 IPC helps with HIV/AIDS prevention. He referred to the scientific study conducted by the National Institute of Health on behavioral patterns and AIDS which shows that HIV/AIDS is higher among MSM. Learned counsel submitted that same sex is more harmful to public health than opposite sex. 16. 14 Shri Huzefa Ahmadi submitted that the right to sexual orientation can always be restricted on the principles of morality and health. He referred to the constitutional assembly debates on Article 15 to show that the inclusion of sexual orientation in the term 'sex' was not contemplated by the founding fathers. Shri Ahmadi also referred to the dissenting opinion given by Justice Scalia and Justice Thomas in Lawrence v.

Texas wherein it was stated that promotion of majoritarian sexual morality was a legitimate state interest. Shri Ahmadi stressed that Courts, by their very nature, should not undertake the task of legislating. He submitted that the Delhi High Court was not clear if it was severing the law, or reading it down. He argued that if the language of the section was plain, there was no possibility of severing or reading it down. He further argued that, irrespective of the Union Government's stand, so long as the law stands on the statute book, there was a constitutional presumption in its favour. 16. 15 Shri Purshottaman Mulloli submitted that the data presented by NACO was fraudulent and manufactured and the disparities and contradictions were apparent. 16.

16 Shri Sushil Kumar Jain 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 t~e Constitution and submitted that the matter should have been left to Parliament to decide as to what is moral and what is immoral and whether the section in question should be retained in the statute book. Shri Jain emphasized that mere possibility of abuse of any particular provision cannot be a ground for declaring it unconstitutional. 16. 17 Shri Praveen Aggarwal argued that all fundamental rights operate in a square of reasonable restrictions. There is censorship in case of Freedom of Speech and Expression. High percentage of AIDS amongst homosexuals shows that the act in dispute covered under Section 377 IPC is a social evil and, therefore, the restriction on it is reasonable. 17. Shri F. S.

Nariman, Senior Advocate appearing for Minna Saran and others (parents of Lesbian Gay Bisexual and Transgender (LGBT) children), led arguments on behalf of the learned counsel who supported the order of the High Court. Shri Nariman referred to the legislative history of the statutes 'enacted in Britain including Clauses 361 and 362 of the Draft Penal. -Code, 1837 which preceded the enactment of Section 377 IPC in its present form and made the following arguments: 17. 1 Interpretation of Section 377 is not in consonance with the scheme of the IPC, with established principles of interpretation and with the changing nature of society. 17. 2 That Section 377 punishes whoever voluntarily has carnal intercourse against the order of nature. This would render liable to punishment- (a) Any person who has intercourse with his wife other than penile - vaginal intercourse; (b) Any person who has intercourse with a woman without using a contraceptive. 17.

3 When the same act is committed by 2 consenting males, and not one, . it cannot be regarded as an offence when- (i) The act is done in private; (ii) The act is not in the nature of sexual assault, causing harm to one of the two individuals indulging in it; and (iii) No force or coercion is used since there is mutual consent. 17. 4 Section 377 must be read in light of constitutional provisions which include the "right to be let alone". The difference between obscene acts in private and public is statutorily recognized in Section 294 IPC. 17. 5 The phraseology of Section 377 ('Carnal intercourse against the order of nature') is quaint and archaic, it should be given a meaning which reflects the era when it was enacted. (1860) 17. 6 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). 17. 7 Chapter Headings and sub headings provide a guide to interpreting the scope and ambit of Section 377. The Petitioners rely on G. P. Singh, Principles of Statutory Interpretation, 13th Ed. 2012, pp 167 - 170, Raichuramatham Prabhakar v. Rawatmal Dugar, (2004) 4 SCC 766 at para 14 and OPP v. Schildkamp, 1971 A. C. 1 at page 23. Headings or Titles may be taken as a condensed name assigned to indicate collectively the characteristics of the subject matter dealt with by the enactment underneath. 17.

8 Section 377 is impermissibly vague, delegates policy making powers to the police and results in harassment and abuse of the rights of LGBT persons. The Petitioners rely on State of MP v. Baldeo Prasad, (1961) 1 SCR 970 at 989 which held that, 'Where a statute empowers the specified authorities to take preventive action against the citizens it is essential that it should expressly make it a part of the duty of the said authorities to satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such. conditions precedent, it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Article 19 (5). ' 17. 9 Widespread abuse and harassment of LGBT · persons u/s 377 has been incontrovertibly establ. ished.

The appellants rely on paras 21, 22, 50, 74 and 94 of the judgment of the Division Bench of the Delhi High Court in Suresh Kumar Kaushal v. Naz Foundation which records evidence of various instances of the use of Section 377 to harass members of the LGBT community. These were based on paras 33 and 35 of the Writ Petition filed by the Naz Foundation challenging the vires of Section 377. It was supported by various documents brought on record, such as Human Rights Watch Report, July 2002 titled, "Epidemic of Abuse: Police Harassment of HIV/ AIDS Outreach Workers in India"; Affidavits giving instances of torture and sexual abuse; Jayalakshmi v. State, (2007) 4 MLJ 849 dealing with sexual abuse and torture of a eunuch by police; An Order of a Metropolitan Magistrate alleging an offence u/s 377 against two women even though there is an express requirement of penetration under the Explanation to Section 377. 17.

10 Section 377 is ultra vires of Article 14 as there is no classification apparent on the face of it. 17. 11 The appellants contend that 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. 17. 12 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. 0 17.

13 Section 377 targets the LGBT community by criminalizing a closely held personal characteristic such as sexual orientation. By covering within its ambit, consensual sexual acts by persons within the privacy of their homes, it is repugnant to the right to equality. 18. Shri Shyam Divan, learned senior counsel representing respondent No. 11-Voices Agaif']st 377, made the following arguments: 18. 1 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 are a part of human rights and are guaranteed under Article 21. 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 cr