Sunday, 23 January 2022

“Suresh Kumar Kaushal vs. Naz Foundation”


“Suresh Kumar Kaushal vs. Naz Foundation”

Facts - The NAZ Foundation Trust is a Delhi-based HIV/AIDS and sexual health NGO, who filed a writ case in the Delhi High Court challenging the constitutional validity of Section 377 of the Indian Penal Code. This clause makes unlawful any sexual activity that is "beyond the order of nature, including consensual sexual intercourse between two individuals of the same sex or of the opposite sex participating in penile non-vaginal sexual activities. The petitioner claimed that Section 377 violated the Constitution's Articles 14, 15, 19, and 21, and that it should not be utilised to penalise consensual penile non-vaginal contact between two consenting adults of the same sex”.

Issue – “Infringement of Fundamental Rights under Articles 14, 15, and 21 of the Indian Constitution was one of the major issues brought to the Court for consideration”.

1. Whether Section 377 of the Indian Constitution breaches any of the provisions of Part III, and hence whether it is constitutionally legitimate or not?

2. Is Section 377 of the Indian Constitution, which renders private consensual sexual behaviour between two adults of the same sex unlawful, a breach of Article 21?

Judgement & Analysis The NAZ Foundation's argument is a true reflection of India's founding fathers' wish to build a society that is both inclusive and accepting. The decision serves as a reminder that the Indian Constitution is a full-fledged with dynamic provisions that can be modified according to the need of the hour and circumstances. Respondents made an argument that “Section 377 is based on traditional Judeo-Christian moral and ethical principles, and that it is being used to legitimise discrimination against sexual minorities, such as LGBT people”. They further argued that the provision is dangerous to people's lives and society at large since it has a direct impact on homosexuals' lives and is utilised by police as a weapon.

The Respondents argued that “Section 377 of the Indian Constitution that criminalises voluntary sexual conduct between two adults of the same sex as well as heterosexual penile non vaginal sexual intercourse between consenting adults”, violates Articles 14, 15 & 21. The petitioners claimed that Section 377 does not categorise or define any specific group or gender on its face, and so does not contradict Articles 14 and 15 and 21. The Court concurred with the petitioners' claims, stating that “Section 377 does not contradict Articles 14, 15, or 21, and that unnatural desire, as defined by the petitioners, should be punished”. According to Justice Singhvi, Section 377 is a pre-constitutional statute that would have been removed long ago if it infringed any of the rights provided under Part III. The constitutionality of Section 377 was determined.

“The doctrine of severability and the practise of reading down a particular section stems from the presumption of constitutionality, and the Delhi High Court's decision to read down the section in this case was incorrect because no part of the section can be severed without affecting the entire section, which also happens to be the only law that governs cases of paedophilia and tampering with evidence. As a result, the Supreme Court found no constitutional flaws in Section 377 of the Indian Penal Code and delegated the decision to the competent legislature to consider the desirability and legitimacy of repealing or amending the Section to allow consensual sexual activity between two adults of the same sex in private.”


Despite the fact that there is no compelling state aim in creating such regulations to regulate and deny such a basic right, Section 377 is arbitrarily applied in the above case law to categorise procreative and non-procreative sexual activities.

Article 21 guarantees the right to life as well as the protection of personal liberty. Under the privacy and dignity argument, the right to personal liberty guaranteed by Article 21 protects private, consenting sexual encounters.

Consensual sexual acts among two people of the same sex should not be regulated according to law as it infringes on their fundamental rights, and the state has no business controlling a person's sexual accomplice choice. Members of the LGBT community are being persecuted under Section 377. “Popular morality, as opposed to constitutional morality derived from constitutional values, is based on shifting notions of right and wrong, and today, a significant portion of the elite population supports LGBT rights, demonstrating that the State is guided by its own morality, if there is any type of morality that can pass the compel test”. 

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