Suresh Kumar Koushal v. Naz Foundation (2013): the Supreme Court restores Section 377

Suresh Kumar Koushal v. Naz Foundation is the case that sits in the middle of the Section 377 saga — and the one that, for nearly five years, pointed the law in the wrong direction. In 2009 the Delhi High Court, in Naz Foundation v. Government of NCT of Delhi, had read down Section 377 IPC so that it no longer reached consensual sexual acts between consenting adults in private, holding that to that extent the provision violated Articles 14, 15 and 21. That declaration was challenged in the Supreme Court by a set of private and religious appellants, of whom Suresh Kumar Koushal was the lead petitioner. On 11 December 2013 the Court allowed those appeals, set the High Court judgment aside, and restored Section 377. The same day, Singhvi, J. demitted office on retirement.

The judgment was a reversal in the most literal sense. It undid a decriminalisation that had been in place since 2009, and it did so on grounds — deference to the legislature, a presumption of constitutionality, and a narrow reading of the equality guarantees — that the Supreme Court itself would later repudiate, first in passing in K.S. Puttaswamy v. Union of India (2017) and then squarely in Navtej Singh Johar v. Union of India (2018).

The facts and the posture

The dispute did not begin in the Supreme Court. The Naz Foundation, an organisation working on HIV/AIDS prevention, had challenged Section 377 IPC before the Delhi High Court. Section 377, a provision dating to 1860, criminalises "carnal intercourse against the order of nature" and carries severe penalties. In 2009 the High Court held that, insofar as it criminalised consensual sexual acts between adults in private, the section was unconstitutional, and it read the provision down accordingly.

That judgment was not appealed by the Union of India in any whole-hearted way. Instead, the challenge to it came largely from private parties — individuals and faith-based organisations who opposed the decriminalisation — who approached the Supreme Court by way of special leave petitions. Suresh Kumar Koushal was the named lead appellant. The matter therefore reached the Supreme Court not as the State defending its statute, but as third parties seeking to have the High Court's declaration of unconstitutionality undone.

The questions

Two questions framed the appeal. The first was the substantive constitutional question the High Court had answered: is Section 377 IPC, in its application to consensual same-sex conduct between adults, compatible with Articles 14, 15 and 21 — the guarantees of equality before the law, non-discrimination, and the protection of life and personal liberty? The second was, in effect, a question about the limits of the High Court's exercise: was the Delhi High Court right to read the section down, or had it overstepped the proper bounds of judicial review by re-writing a long-standing penal provision that Parliament had left untouched?

What the Court held

The Court answered both questions in favour of the appellants. It held that Section 377 IPC was constitutionally valid and that the High Court's declaration of unconstitutionality could not stand. As the judgment put it, the Court held that the section "does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable." The appeals were allowed and the 2009 judgment set aside.

Several strands of reasoning supported that conclusion. The Court treated Section 377 as a provision that, on its face, criminalises acts rather than persons: it "merely defines a particular offence and prescribes its punishment," and it applies to the proscribed conduct irrespective of the identity or orientation of those involved. On that reading, the section did not classify by reference to any group and so could not, in the Court's view, be condemned as discriminatory under Articles 14 or 15.

The Court also leaned heavily on the presumption of constitutionality that attaches to a duly enacted statute, and especially to one that had been on the books for more than a century. It considered that the High Court had not given that presumption its due weight, and that the burden of demonstrating clear constitutional infirmity had not been discharged. In a much-criticised passage, the Court observed that those affected by the section constituted only a small fraction of the population — a "minuscule" minority — and treated that as a reason against striking the provision down. And it concluded that the choice whether to amend or delete Section 377 was one for Parliament to make, not a matter for the courts to engineer through interpretation.

Analysis

The reasoning in Koushal repays close reading precisely because each step of it would later be held to be mistaken. Take the "acts not persons" point first. The Court's premise — that Section 377 is identity-neutral because it speaks of conduct — has a surface plausibility. But the answer developed in later cases was that a law neutral on its face can still operate to target a class: when the conduct criminalised is, in practice, the conduct by which a particular group expresses intimacy, the law brands the group even though its text never names them. The formal neutrality of the provision was, on this view, beside the point; what mattered was its effect.

The "minuscule minority" observation drew the sharpest criticism. The objection is one of constitutional principle: fundamental rights do not become weaker because few people need them. A guarantee that protects only majorities, or only large groups, is not a guarantee of rights at all. That is why the size of the affected class is, in the strict sense, irrelevant to whether a law violates the Constitution — a point made expressly when Puttaswamy (2017) revisited Koushal and disapproved of this part of its reasoning.

The deference-to-Parliament strand is more defensible in the abstract — courts are rightly cautious about substituting their judgment for the legislature's on matters of policy. But the difficulty is that constitutional adjudication is not policy-making. Once a provision is alleged to infringe fundamental rights, deciding that question is the court's own responsibility, and it cannot be deferred to the legislature on the ground that Parliament might one day act. The High Court had not legislated; it had adjudicated a rights claim. By recasting that adjudication as an intrusion on legislative prerogative, Koushal effectively declined to perform the very function that Article 13 and the writ jurisdiction commit to the courts.

It is also worth noting what the judgment did not do. It did not engage at length with the Article 21 privacy and dignity reasoning on which the High Court had relied; that dimension of the case was left comparatively underdeveloped. When the Supreme Court returned to the subject, it was the privacy and dignity line — fortified by the intervening nine-judge decision in Puttaswamy — that did the decisive work against the section.

Why it matters

Koushal is a study in the consequences of a narrow conception of judicial review. For nearly five years it was the law: consensual same-sex conduct between adults was once again criminal, and the constitutional reasoning of the 2009 Naz Foundation judgment stood overruled. The decision was challenged through a review petition, which was dismissed, and through curative petitions, which were referred to a larger Bench; by the time the matter was finally taken up, events had moved past it.

What moved past it was Navtej Singh Johar v. Union of India (2018), in which a five-judge Constitution Bench — Dipak Misra, C.J.I., with R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, JJ. — read down Section 377 insofar as it criminalised consensual sexual acts between adults, and expressly overruled Koushal. By then the ground had shifted: Puttaswamy had recognised privacy as a fundamental right and had already singled out Koushal's reasoning for disapproval. With Koushal superseded by Navtej, the pending curative petitions were rendered infructuous.

For the practitioner, Koushal is instructive less as good law — it is not — than as a cautionary case. It shows how a presumption of constitutionality, an "acts not persons" framing, and a counsel of deference to the legislature can combine to defeat a rights claim that, on a fuller view of Articles 14, 15 and 21, ought to have succeeded. The case is the necessary middle term between Naz Foundation and Navtej: it explains both why the question returned to the Supreme Court and why, when it did, the Court took such care to reason its way past each of Koushal's premises.

Related on Valkya

• Naz Foundation v. Government of NCT of Delhi
• Navtej Singh Johar v. Union of India
• K.S. Puttaswamy v. Union of India
• Joseph Shine v. Union of India

Sources

• Supreme Court Observer, "Section 377" — https://www.scobserver.in/journal/3-section-377/
• Supreme Court Observer, "Constitutionality of Section 377 IPC (Navtej Singh Johar) — Case Background" — https://www.scobserver.in/cases/navtej-singh-johar-v-union-of-india-constitutionality-of-section-377-ipc-background/
• SCC Times, "Section 377 IPC Decriminalised in 2018 (Navtej Singh Johar); SC Declares 2013 Suresh Kumar Koushal Curative Petition Infructuous" — https://www.scconline.com/blog/post/2024/02/09/section-377-ipc-decriminalised-2018-navtej-singh-johar-sc-declares-curative-petition-2013-suresh-kumar-koushal-infructuous/