2013 Supreme(SC) 1123

SUPREME COURT OF INDIA
G.S. SINGHVI & SUDHANSU JYOTI MUKHOPADHAYA, JJ.
Suresh Kumar Koushal & Another
Versus
NAZ Foundation & Others
CIVIL APPEAL NO.10972 OF 2013 (Arising out of SLP (C) No.15436 of 2009) with CIVIL APPEAL NO.10974 OF 2013 (Arising out of SLP(C) No.37703 of 2013 @ CC NO.13105 of 2009) CIVIL APPEAL NO.10986 OF 2013 (Arising out of SLP(C) No.37708 of 2013 @ CC NO.14042 of 2009) CIVIL APPEAL NO.10981 OF 2013 (Arising out of SLP(C) No.37705 of 2013 @ CC NO.19478 of 2009) CIVIL APPEAL NO.10983 OF 2013 (Arising out of SLP(C) NO.20913 of 2009) CIVIL APPEAL NO.10984 OF 2013 (Arising out of SLP(C) No.20914 of 2009)
Decided On : 11-12-2013

VERY IMPORTANT POINTS
1. If a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional.
2. Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.
3. The mere fact that section 377 of IPC is misused by police authorities and others is not a reflection of the vires of the section.
IMPORTANT POINTS
1. The High Court and Supreme Court of India are empowered to declare as void any law, whether enacted prior to the enactment of the Constitution or after. Such power can be exercised to the extent of inconsistency with the Constitution/contravention of Part III.
2. There is a presumption of constitutionality in favour of all laws, including pre-Constitutional laws as the Parliament, in its capacity as the representative of the people, is deemed to act for the benefit of the people in light of their needs and the constraints of the Constitution.
3. Unless a clear constitutionalviolation is proved, Supreme Court is not empowered to strike down a lawmerely by virtue of its falling into disuse or the perception of thesociety having changed as regards the legitimacy of its purpose and itsneed.
4. Mere possibility of abuse of a provision of law does not per se invalidate a legislation.

Headnote:Public Interest Litigation-Section 377 of IPC-Constitutional validity of-Writ petition filed by NAZ Foundation, respondent No.1 by way of Public Interest Litigation challenging the constitutional validity of Section 377 of IPC- Respondent 1 prayed for grant of a declaration that Section 377 IPC to the extent it was applicable to and penalised sexual acts in private between consenting adults was violative of Articles 14, 15, 19(1)(a)-(d) and 21 of the Constitution-Writ petition Allowed by High Court holding that Section 377 IPC, insofar it criminalised consensual sexual acts of adults in private, was violative of Articles 21, 14 and 15 of Constitution -Appeals thereagainst-Held those who indulge in carnal intercourse in the ordinary course andthose who indulge in carnal intercourse against the order of natureconstitute different classes and the people falling in the later categorycannot claim that Section 377 suffers from the vice of arbitrariness andirrational classification- What Section 377 does is merely to define theparticular offence and prescribe punishment for the same which can beawarded if in the trial conducted in accordance with the provisions of theCode of Criminal Procedure and other statutes of the same family the person is found guilty-Hence held that High Court was not justified in declaringSection 377 IPC ultra vires Articles 14 and 15 of Constitution- Section 377 IPC doesnot suffer from the vice of unconstitutionality and the declaration made by High court held legally unsustainable-Impugned order set asideand the writ petition filed by respondent No.1 dismissed-Appeals allowed (Paras 42, 54, 55)

        Public Interest Litigation-Section 377 of IPC-Constitutional validity of-Writ petition filed by NAZ Foundation, respondent No.1 by way of Public Interest Litigation challenging the constitutional validity of Section 377 of IPC- Respondent 1 prayed for grant of a declaration that Section 377 IPC to the extent it was applicable to and penalised sexual acts in private between consenting adults was violative of Articles 14, 15, 19(1)(a)-(d) and 21 of the Constitution-Writ petition Allowed by High Court holding that Section 377 IPC, insofar it criminalised consensual sexual acts of adults in private, was violative of Articles 21, 14 and 15 of Constitution -Appeals thereagainst-Respondent No.1 attacked Section 377 IPC on the ground that the same had been used to perpetrate harassment, blackmail and torture on certainpersons, especially those belonging to the LGBT community-However held that this treatment was neither mandated by the section nor condoned by it -Mere fact that the section was misused by police authorities and others was not a reflection of the vires of the section- It might be a relevantfactor for the Legislature to consider while judging the desirability ofamending Section 377 IPC (Para 51)

        Public Interest Litigation-Section 377 of IPC-Constitutional validity of-Writ petition filed by NAZ Foundation, respondent No.1 by way of Public Interest Litigation challenging the constitutional validity of Section 377 of IPC- Respondent 1 prayed for grant of a declaration that Section 377 IPC to the extent it was applicable to and penalised sexual acts in private between consenting adults was violative of Articles 14, 15, 19(1)(a)-(d) and 21 of the Constitution-Writ petition Allowed by High Court holding that Section 377 IPC, insofar it criminalised consensual sexual acts of adults in private, was violative of Articles 21, 14 and 15 of Constitution -Appeals thereagainst-In its anxiety to protect the so-called rights of LGBT persons and todeclare that Section 377 IPC violates the right to privacy, autonomy anddignity, High Court extensively relied upon judgments of other jurisdictions- Though these judgments shed considerable light on variousaspects of this right and are informative in relation to the plight ofsexual minorities, they cannot be applied blindfolded fordeciding the constitutionality of the law enacted by the Indianlegislature (Para 52)

       Facts of the Case :

        Present appeals have been filed against order passed by High Court allowingthe writ petition filed byNAZ Foundation - respondent No.1 herein, by way of Public InterestLitigation (PIL) challenging the constitutional validity of Section 377 ofthe Indian Penal Code, 1860.High Court had held 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.

       Findings of the Court :

        A.The Supreme Court held that 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 the Code of Criminal Procedure and other statutes of the same family the person is found guilty. High Court was not justified in declaring Section 377 IPC ultra vires Articles 14 and 15 of Constitution. Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by High court held legally unsustainable.Impugned order was set aside and the writ petition filed by respondent No.1 dismissed.

        B.Mere fact that the section was misused by police authorities and others was 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.In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, High Court extensively relied upon judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.Impugned order of High Court was set aside and the writ petition filed by respondent No.1 was dismissed. Appeals were allowed

       Result : Appeals allowed