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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10972  OF 2013 (Arising out of SLP (C) No.15436 of 2009)

Suresh Kumar Koushal and another ... Appellants

versus

NAZ Foundation and others  ... Respondents

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)

CIVIL APPEAL NO.10975 OF 2013 (Arising out of SLP(C) NO.22267 of 2009)

CIVIL APPEAL NO.10973 OF 2013 (Arising out of SLP(C) NO.24334 of 2009)

CIVIL APPEAL NO.10985 OF 2013 (Arising out of SLP(C) NO.25346 of 2009)

CIVIL APPEAL NO.10976  OF 2013 (Arising out of SLP(C) NO.34187 of 2009)

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CIVIL APPEAL NO.10980 OF 2013 (Arising out of SLP(C) NO.36216 of 2009)

CIVIL APPEAL NO.10982 OF 2013 (Arising out of S.L.P.(C) No.37706 of 2013 @ CC NO.425 of 2010)

CIVIL APPEAL NO.10977 OF 2013 (Arising out of SLP(C) NO.286 of 2010)

CIVIL APPEAL NO.10978 OF 2013 (Arising out of SLP(C) NO.872 of 2010)

CIVIL APPEAL NO.10979 OF 2013 (Arising out of SLP(C) NO.873 of 2010)

JUDGMENT

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  

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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 Non-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  

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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-

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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 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,  non-procreative  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”  (penile-vaginal)  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  

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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  

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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 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,  

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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  Court  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 around 25 lacs.  

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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 sexual  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 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 –  

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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 substantive 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  same-  sex  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.”

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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  and non-

arbitrariness 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  IPC  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  

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discrimination  severely  affects  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  of  viewing all  gay men as  criminals.  When everything  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.  [Sachs,  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 harmonious 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 characteristic that relates to personal autonomy must be  subject to strict scrutiny.

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Thus personal  autonomy is  inherent  in the  grounds mentioned in  Article 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 merely against “reasonableness”  under Article 14 but be subject to “strict scrutiny”. The impugned  provision  in  Section  377  IPC  criminalises  the  acts  of  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 the 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 based wholly 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 State 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),  

I.R. Coelho (Dead) by LRs v. State of Tamil Nadu & Ors., (2007) 2 SCC 1 and  

Raja Ram Pal v. Hon'ble Speaker, Lok Sabha & Ors., (2007) 3 SCC 184, Peerless  

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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  judicial  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  of  “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 otherwise 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  interpret  the  law as  it  is  and have  no power  to  declare  the  law  invalid. 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 principle 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  

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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 under:

Case  Number

Name Description  before the  

Court

Details

SLP  (C)  No.  15436/2009  (CC  No.  9255/2009)

Suresh  Kumar  Koushal  &  Anr.

Petitioners  (Not  parties  before the High  Court)

Petitioners  are  citizens  of  India  who  believe  they  have  the  moral  responsibility  and  duty  in  protecting cultural values of Indian  society.

Samajik  Ekta  Party

Intervener  –  IA No. 4/2009

The  applicant  is  a  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.

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Mr.  Shyam  Benegal

Intervener  –  IA No. 6/2009

The applicant is a 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  Missionaries

Interveners  –  IA No. 7/2010

The  applicant  is  a  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  Saran  &  Others  (Parents  of  LGBT  Children)

Interveners  –  IA No. 8/2010

The  applicants  are  parents  of  lesbian,  gay,  bisexual  and  transgender 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  their  children’s  sexuality  and  they  are  acutely aware of the social stigma  prejudice,  myths  and  stereotypes  that  surround  the  subject  of  homosexuality in India.

Dr.  Shekhar  Seshadri  &  Others  (Professor  of  Psychiatry  at  the  National  Institute  of  

Interveners  -  IA No. 9/2010

The  Applicants  are  mental  health  professionals  who  have  been  practising  as  psychiatrists,  clinical  psychologists  and  behavioral  psychologists in the field of mental  health  in  reputed  medical  institutions throughout India. They  

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Mental Health  and  Neuro  Sciences,  Bangalore)

claim  to  have  had  considerable  expertise in addressing the mental  health  concerns  of  Lesbian,  Gay,  Bisexual and Transgender persons.  The Applicants submit that  sexual  orientation  is  an  immutable  characteristic  and  is  present  at  birth.

Nivedita  Menon  &  Others  (Professor  in  Political  Thought,  Jawaharlal  Nehru  University)

Interveners  -  I.A.  No.  10/2010

The  Applicants  are  academicians  who  wish  to  contribute  to  the  debate on the issues raised by the  judgment and to draw attention to  the  mental  distress  caused  to  the  LGBT community.

Ratna  Kapur  & Ors.

Interveners  –  IA  No.  13/2011

The applicants are law 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 IPC.

SLP  (C)  No.  24334/2009

Delhi  Commission  for Protection  of  Child  Rights

Petitioner (Not  parties  before  the  High  Court)

The petitioner has been constituted  under  the  Commissions  for  Protection  of  Child  Rights  Act,  2005  read  with  GoI  MHA  notification  dt.  15.1.2008.  Under  Sec  13(1j)  the  Commission  is  empowered  to  take  suo  moto  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  

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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 atmosphere 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.  13105/2009

Ram Murti Petitioner  (not  party  before  the High Court

He is a citizen of India and has a  duty to report if something illegal is  happening.

SLP  (C)  No.  22267/2009

B.P. Singhal Petitioner  (Respondent  7  –  Intervener  before  the  High Court)

SLP  (C)  No.  34187/2009

B.  Krishna  Bhat

Petitioner  (not  a  party  before  the  High  Court)

The petitioner is a citizen of India  and  a  public  spirited  individual,  social worker and environmentalist  who  believes in the  Rule of  Law  and has successfully prosecuted  a  number of PILs 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  reservation, etc.

SLP  (C)  No.  286/2010

Joint  Action  Council,  Kannur

Petitioner  (respondent  6  –  Intervener  before  the  High Court)

SLP  (C)  No.  872/2010

The  Tamil  Nadu  Muslim  Munnetra  Kazhagam

Petitioner  (not  a  party  before  the  High  Court)

The petitioner is a registered trust  working for the betterment  of the  poor  and downtrodden  in general  and  for  those  belonging  to  the  minority  Muslim  community  in  particular.  It  is  a  mass  based  

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voluntary organisation of Muslims  of  Tamil  Nadu  functioning  since  1955 in Tamil Nadu. The president  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 in blood donation  and has been given two awards by  the  Tamil  Nadu  State  AIDS  Control Board.

SLP  (C)  No.  873/2010

Raza  Academy

Petitioner  (not  a  party  before  the  High  Court)

The  petitioner  is  an  organisation  working for welfare of the general  public and it has done tremendous  work in public interest.

SLP  (C)  No.  36216/200

Krantikati  Manuvadi  Morcha Party  & Anr.

Petitioner  (not  a  party  before  the  High  Court)

Krantikari  Manuwadi  Morcha  (Revolutionary 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.  19478/2009

Utkal  Christian  Council  rep.  by  Secretary  Miss  Jyotsna  Rani Patro

Petitioner  (not  a  party  before  the  High  Court)

Note:  There  is no information on  the petitioner in the SLP.  

CC  No.  425/2010

All  India  Muslim  Personal  Law  Board

Petitioner  (not  a  party  before  the  High  Court)

The  petitioner  is  a  registered  society established 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.  20913/2009

Sh.  S.K.  Tijarawala

Petitioner  (not  a  party  before  the  High  Court)

Petitioner is spokesperson of Yoga  Guru Swami Ramdev Ji is running  a social welfare trust in the name of  “Bharat  Swabhiman”  Patanjali  Yogpeeth  Trust.  Petitioner  is  an  eminent  social  worker  and  writer  

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interested  in  protecting  cultural  values of the Indian society.

SLP  (C)  No.  20914/2009

Apostolic  Churches  Alliance  rep.  by  its  bishop  Sam  T.  Varghese

Petitioner  (not  a  party  before  the  High  Court)

With  a  desire  to  promote  unity,  build  relationships,  and  see  increased  cooperation  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 with 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.  25364/2009

Prof.  Bhim  Singh

Petitioner  (not  a  party  before  the  High  Court)

CC  No.  14042/2009

Sanatan  Dharam  Pritinidhi  Sabha  Delhi  (Registered)

Petitioner  (not  a  party  before  the  High  Court)

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  

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Advocate appearing for intervener – Trust God Missionaries, and S/Shri Sushil  

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 Mulloli 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 Koushal (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),  P.V.  Yogeswaran  for  appellant  –  Bhim  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 had been used for prosecution of homosexuals as a class  

and that  few affidavits and unverified reports  of  some NGOs relied upon by  

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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 the number of such cases.   

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 section 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 IPC is gender neutral and covers voluntary acts of carnal  

intercourse against the order of nature irrespective 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 which has the capacity to cause harm to others cannot be validated.  They  

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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.   

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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 A.K.  

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 unmanliness and lead to persons not being useful in society.   

16.10 Relying  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  

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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 tandem and are not expected to be abused. If it is abused, it goes  

against nature. The code of nature is inviolable. Sex and food are regulated in  

society.  What is pre-ordained by nature has to  be protected,  and man has an  

obligation to nature. He quoted a Sanskrit phrase which translated to “you are  

dust and go back to dust”. Learned senior counsel concluded by emphasising 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  

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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  

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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 the 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:

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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.  

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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  DPP  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).’

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17.9 Widespread abuse  and harassment of LGBT persons  u/s  377 has  

been incontrovertibly established. 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 Koushal 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  

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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.

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 Against 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 criminality on such sexual relationships.  Justice Vivian Bose in  Krishna v.   

State of Madras, 1951 SCR 621 stated: ‘When there is ambiguity or doubt the  

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construction of any clause in the chapter on Fundamental Rights, it is our duty to  

resolve it  in favour of the freedoms so  solemnly stressed.’  Section 377 in its  

interpretation and operation targets LGBT persons and deprives them of their full  

moral citizenship. This Court has developed great human rights jurisprudence in  

cases concerning under trials, scavengers and bonded labourers to interpret the  

notion of ‘dignity’. The Delhi High Court has exercised its jurisdiction to separate  

out the offending portion of Section 377 IPC.  Shri Divan also referred to the  

legislative history of Section 377  IPC and argued that this provision perpetuates  

violation of fundamental rights of LGBT persons.   Shri Divan referred to the  

incidents, which took place at Lucknow (2002 and 2006), Bangalore (2004 and  

2006), Delhi (2006), Chennai (2006), Goa (2007), and Aligarh (2011) to bring  

home the point that LGBT persons have been targeted by the police with impunity  

and the judiciary at the grass route level has been extremely slow to recognize  

harassment suffered by the victims.  He also relied upon ‘Homosexuality:  A  

Dilemma  in  Discourse,  Corsini  Concise  Encyclopaedia  of  Psychology  and  

Behavioural Science’, articles written by Prof. Upendra Baxi and Prof. S.P. Sathe,  

172nd Report  of  the  Law  Commission  which  contained  recommendation  for  

deleting Section 377 IPC and argued that Section 377 has been rightly declared  

unconstitutional because it infringes right to privacy and right to dignity.  He  

relied upon the statement made by the Attorney General on 22.3.2012 that the  

Government of India does not find any legal error in the order of the High Court  

and accepts the same.  Shri Divan further argued that Section 377 IPC targets  

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LGBT persons as a class and is, therefore, violative of Articles 14 and 15 of the  

Constitution.

19. Shri Anand Grover, learned senior counsel for respondent No.1 made  

the following submissions:

19.1 Section  377  criminalises  certain  sexual  acts  covered  by  the  

expressions “carnal intercourse against the order of nature” between consenting  

adults in private. The expression has been interpreted to imply penile non vaginal  

sex. Though facially neutral, these acts are identified and perceived by the broader  

society to be indulged in by homosexual men.  

19.2 By criminalising these  acts  which are  an  expression of  the  core  

sexual  personality  of  homosexual  men,  Section  377  makes  them out  to  be  

criminals with deleterious consequences thus impairing their human dignity.

19.3 Article  21  protects  intrusion  into  the  zone  of  intimate  relations  

entered into in the privacy of the home and this right is violated by Section 377,  

particularly of homosexual men. The issue is therefore whether protection of the  

privacy is available to consenting adults who may indulge in “carnal intercourse  

against the order of nature”.

19.4 Section 377 does not fulfil the just fair and reasonable criteria of  

substantive due process now read into Article 21.  

19.5 Criminalisation impairs health services for gay men and thus violates  

their right to health under Article 21.

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19.6 Section 377 is vague and seeks to introduce a classification which is  

not based on rational criteria and the object it seeks to advance is not a legitimate  

state object.  

19.7 The history of unnatural offences against the order of nature and their  

enforcement in India during the Mogul time, British time and post independence,  

shows  that  the  concept  was  introduced by the  British and there  was  no law  

criminalising such acts in India. It is based on Judeo-Christian moral and ethical  

standards  which  conceive  of  sex  on  purely  functional  terms,  that  is,  for  

procreation. Post independence the section remained on the statute books and is  

now seen as part of Indian values and morals.

19.8 Though facially neutral,  an  analysis  of  the  judgments  shows  that  

heterosexual couples have been practically excluded from the ambit of the section  

and  homosexual  men  are  targeted  by  virtue  of  their  association  with  the  

proscribed acts.

19.9 The criminalisation of Section 377 impacts  homosexual men at  a  

deep level and restricts their right to dignity, personhood and identity, privacy,  

equality and right to health by criminalising all forms of sexual intercourse that  

homosexual men can indulge in as the penetrative sexual acts they indulge in are  

essentially  penile  non  vaginal.  It  impacts  them disproportionately  as  a  class  

especially  because  it  restricts  only  certain  forms  of  sexual  intercourse  that  

heterosexual persons can indulge in. The expression of homosexual orientation  

which  is  an  innate  and  immutable  characteristic  of  homosexual  persons  is  

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criminalised by Section 377. The section ends up criminalising identity and not  

mere acts as it is usually homosexual or transgender persons who are associated  

with  the  sexual  practices  proscribed  under  Section  377  (relied  on  National  

Coalition for Gay and Lesbian Equality v. Minster of Justice & Ors. 1998 (12)  

BCLR 1517 (CC), Queen Empress v. Khairati 1884 ILR 6 ALL 204, Noshirwan  

v. Emperor). While the privacy of heterosexual relations, especially marriage are  

clothed in legitimacy, homosexual relations are subjected to societal disapproval  

and scrutiny. The section has been interpreted to limit its application to same sex  

sexual acts (Govindrajulu, in re, (1886) 1 Weir 382. Grace Jayamani v. E Peter  

AIR 1982 Kar 46, Lohana Vasantlal Devchand v. State). Sexual intimacy is a core  

aspect of human experience and is important to mental health, psychological well  

being  and  social  adjustment.  By  criminalising  sexual  acts  engaged  in  by  

homosexual men, they are denied this fundamental human experience while the  

same is allowed to heterosexuals.  The section exposed homosexual persons to  

disproportionate risk of prosecution and harassment. There have been documented  

instances of harassment and abuse,  for example, Lucknow 2001 and Lucknow  

2006.   

19.10 Criminalisation creates a culture of silence and intolerance in society  

and  perpetuates  stigma  and  discrimination  against  homosexuals.  Homosexual  

persons are reluctant to reveal their orientation to their family. Those who have  

revealed their orientation are faced with shock, denial and rejection and some are  

even  pressurised  through  abuse  and  marriage  to  cure  themselves.  They  are  

subjected  to  conversion therapies  such as  electro-convulsive therapy although  

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homosexuality is  no longer considered a  disease  or  a  mental disorder  but  an  

alternate variant of human sexuality and an immutable characteristic which cannot  

be  changed.  Infact  the  American  Psychiatry  Association  and  American  

Psychological  Association  filed  an  amicus  brief  in  Lawrence  v.  Texas  

demonstrating the harm from and the groundlessness  of the criminalisation of  

same sex sexual acts.  

19.11 Fundamental  rights  must  be  interpreted  in  an  expansive  and  

purposive manner so as to enhance the dignity of the individual and worth of the  

human person. The Constitution is a living document and it should remain flexible  

to meet newly emerging problems and challenges. The rights under Articles 14, 19  

and 21 must be read together. The right to equality under Article 14 and the right  

to dignity and privacy under Article 21 are interlinked and must be fulfilled for  

other rights to be truly effectuated. International law can be used to expand and  

give effect to fundamental rights guaranteed under our Constitution. This includes  

UDHR, ICCPR and ICESCR which have been ratified by India. In particular the  

ICCPR and ICESCR have been domesticated through enactment of Section 2 of  

the  Protection  of  Human  Rights  Act  1993  (Francis  Coralie  Mullin  v.  

Administrator, UT of Delhi (1981) 1 SCC 608, M. Nagaraj v. UoI (2006) 8 SCC  

212, Maneka Gandhi v. UoI (1978) 1 SCC 248, Tractor Export v. Tarapore &  

Co.,  (1969) 3 SCC 562, Jolly George v. Bank of Cochin (1980) 2 SCC 360,  

Gramaphone Company of India Ltd. v. Birendra Bahadur Pandey (1984) 2 SCC  

534, Vellore Citizens Welfare Forum v. UoI (1996) 5 SCC 647, Vishaka & Ors.  

v. State of Rajasthn & Ors (1997) 6 SCC 241, PUCL v. UoI & Anr (1997) 1 SCC  

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301, PUCL v. UoI & Anr (1997) 3 SCC 433, Apparel Export Promotion Council  

v. A.K. Chopra (1999) 1 SCC 759, Pratap Singh v. State of Jharkhand (2005) 3  

SCC 551,  PUCL v.  UoI  & Anr.  (2005)  2  SCC 436,  Entertainment Network  

(India) Ltd. v. Super Cassette Industries (2008) 12 SCC 10, Smt. Selvi v. State of  

Karnataka (2010) 7 SCC 263).

19.12 Section  377  violates  the  right  to  privacy,  dignity  and  health  

guaranteed under Article 21 of all persons especially homosexual men.

19.13 Section 377 fails the criteria of substantive due process under Article  

21 as it infringes upon the private sphere of individuals without justification which  

is not permissible. The principle has been incorporated into Indian jurisprudence  

in the last few years after the Maneka Gandhi case. The test of whether a law is  

just fair and reasonable has been applied in examining the validity of state action  

which infringes upon the realm of personal  liberty (Mithu v.  State  of  Punjab  

(1983) 2 SCC 277, Selvi v. State of Karnataka (2010) 7 SCC 263, State of Punjab  

v. Dalbir Singh (2012) 2 SCALE 126, Rajesh Kumar v. State through Govt of  

NCT of Delhi (2011) 11 SCALE 182).

19.14 The guarantee of human dignity forms a part of Article 21 and our  

constitutional  culture.  It  seeks  to  ensure  full  development  and  evolution  of  

persons. It includes right to carry on functions and activities which constitute the  

bare minimum of expression of the human self. The right is intimately related to  

the right to privacy. Dignity is linked to personal self realisation and autonomy.  

Personal intimacies and sexual relations are an important part of the expression of  

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oneself. In light of the right to privacy, dignity and bodily integrity, there should  

be no restriction on a person’s decision to participate or not participate in a sexual  

activity. By making certain sexual relations between consenting adults a crime,  

Section  377  by  its  existence  demeans  and  degrades  people  and  imposes  an  

examination on sexual intercourse. This is regardless of whether it is enforced. By  

denying sexual expression which is an essential experience of a human being,  

Section 377 violates the dignity of homosexual men in particular. Sex between  

two men can never be penile vaginal and hence virtually all penile penetrative acts  

between homosexual men are offences. As the society associates these acts with  

homosexual men they become suspect of committing an offence thus creating fear  

and vulnerability and reinforcing stigma of  being a  criminal (refer  to  Francis  

Coralie Mullin, Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526,  

Maharashtra  University  of  Health  Science  and  Ors.  v.  Satchikitsa  Prasarak  

Mandal and Ors. (2010) 3 SCC 786, Kharak Singh, Noise Pollution (V), In re  

(2005) 5 SCC 733, DK Basu v. State of WB (1997) 1 SCC 416, Gobind, Suchita  

Srivastava v. Chandigarh Administration (2009) 9 SCC 1, Egan v. Canada [1995]  

2 SCR 513, Law v. Canada (Minister of Employment and Immigration [1999] 1  

SCR 497, Lawrence v. Texas, National Coalition of Gay and Lesbian Equality &  

Ors.).

19.15 Right to health is an inherent part of the right to life under Article 21,  

it is recognised by the ICESC which has been domesticated through Section 2 of  

the Protection of Human Rights Act 1993. Article 12 of the ICESCR requires  

states to take measures to protect and fulfil the health of all persons. States are  

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obliged to ensure the availability and accessibility of health services, information,  

education facilitates and goods without discrimination especially to vulnerable and  

marginalised sections of the population. The Govt. has committed to addressing  

the needs of those at the greatest risk of HIV including MSM and transgendered  

persons. The risk of contracting HIV through unprotected penile anal sex is higher  

than through penile vaginal sex. The HIV prevalence in MSM is 7.3% which is  

disproportionately higher than in that of the general population which is less than  

0.5%. The prevalence continues to rise in many States and this is because of the  

stigmatisation of the MSM population due to which they are not provided with  

sexual health services  including prevention services such as  condoms. Due to  

pressure,  some MSM also  marry women thus  acting as  a  bridge  population.  

Criminalisation increases stigma and discrimination and acts as a barrier to HIV  

prevention  programmes.  Section  377  thwarts  health  services  by  preventing  

collection  of  HIV  data,  impeding  dissemination  of  information,  forcing  

harassment,  threats  and  closure  upon  organisations  who  work  with  MSM,  

preventing supply of condoms as it is seen as aiding an offence; limits access to  

health  services,  driving  the  community  underground;  prevents  disclosure  of  

symptoms; increases sexual violence and harassment against the community; and  

creates  an absence of safe spaces  leading to risky sex.  There are  little if any  

negative consequences of decriminalisation and studies have shown a reduction in  

STDs (sexually transmitted diseases) and increased psychological adjustment.

19.16 Section  377  is  vague  and  arbitrary.  It  is  incapable  of  clear  

construction such that those affected by it do not know the true intention as it does  

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not clearly indicate the prohibition. The expression “carnal intercourse against the  

order of nature” has not been defined in the statute. In the absence of legislative  

guidance, courts are left to decide what acts constitute the same. A study of the  

cases  shows that application has become inconsistent and highly varied.  From  

excluding oral  sex  to  now  including oral  sex,  anal  sex  and  penetration  into  

artificial orifices  such as  folded palms or  between thighs by terming them as  

imitative actors or acts of sexual perversity, the scope has been so broadened that  

there is no reasonable idea of what acts are prohibited. It is only clear that penile  

vaginal acts are not covered. This results in arbitrary application of a penal law  

which is violative of Article 14 (refer to AK Roy v. UoI (1982) 1 SCC 271, KA  

Abbas v. UoI and Anr. (1970) 2 SCC 760, Harish Chandra Gupta v. State of UP  

AIR 1960 All 650,  Subhash Chandra and Anr. v.  Delhi Subordinate Services  

Selection Board (2009) 15 SCC 458).  

19.17 Section  377  distinguishes  between  carnal  intercourse  which  is  

against the order of nature and not against the order of nature. This classification  

is unintelligible. It is arbitrary and not scientific. Due to an absence of legislative  

guidance it is left to the Court to decide what constitutes against the order of  

nature.  The  test  in  this  regard  has  shifted  from acts  without  possibility  of  

procreation  to  imitative  acts  to  acts  amounting  to  sexual  perversity.  These  

parameters  cannot  be  discerned  on  an  objective  basis.   The  object  of  the  

classification which seeks to enforce Victorian notion of sexual morality which  

included only procreative sex is unreasonable as condemnation of non procreative  

sex is no longer a legitimate state object. Furthermore advancing public morality  

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is subjective and cannot inform intrusions in personal autonomy especially since it  

is majoritarian. Even assuming that the section was valid when it was enacted in  

1861, the unreasonableness is pronounced with time and the justification does not  

hold valid today. (refer to DS Nakara v. UoI (1983) 1 SCC 305, Kartar Singh v.  

State of Punjab (1994) 3 SCC 569, M Nagaraj v. UoI (2006) 8 SCC 212, Anuj  

Garg v.  Hotel Association of India (2008) 3 SCC 1,  Deepak Sibal v.  Punjab  

University (1989) 2 SCC 145, Suchita Srivastava v. Chandigarh Administration).

19.18 Section 377 is disproportionate and discriminatory in its impact on  

homosexuals. The law must not only be assessed on its proposed aims but also on  

its implications and effects.  Though facially neutral,  the section predominantly  

outlaws  sexual  activity  between  men which is  by  its  very nature  penile  non  

vaginal. While heterosexual persons indulge in oral and anal sex, their conduct  

does not attract scrutiny except when the woman is underage or unwilling. In fact,  

Courts  have  even  excluded  married  heterosexual  couples  from the  ambit  of  

Section 377. When homosexual conduct is made criminal, this declaration itself is  

an invitation to perpetrate discrimination. It also reinforces societal prejudices.  

(Anuj Garg v. Hotel Association of India, Peerless General Finance Investment  

Co. Ltd. v. Reserve Bank of India (1992) 2 SCC 343, Grace Jayamani v. EP Peter  

AIR 1982 Kant. 46, Lawrence v. Texas, National Coalition for Gay and Lesbian  

Equality, Dhirendra Nadan v. State–Criminal Case Nos.HAA0085 & 86 of 2005  

(Fiji High Court).  

19.19 Section 377 violates  Article  15 by discriminating on the  ground of  

sexual orientation as although facially neutral it treats homosexual men unequally  

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compared to heterosexuals and imposes an unequal burden on them. The general  

purport  of  Article  15  is  to  prohibit  discrimination  on  the  grounds  enumerated  

therein. It is contended that as Article 15(3) uses the expression “women” the word  

sex in Article 15(1) must partake the same character. However it is submitted that   

Article 15(3) must not be allowed to limit the understanding of Article 15(1) and  

reduce it  to a binary norm of man and woman only.  This becomes clear when  

Article 15(2) is applied to transgendered persons who identify as a third gender. For  

example,  Government  of  India has  introduced an  option for  “others”  in the  sex  

column of the passport application form. This can be achieved only if the expression  

“sex” is read to be broader than the binary norm of biological sex as man or woman.  

The Constitution is a living document and the Court can breathe content into rights.  

The  underlying  purpose  against  sex  discrimination  is  to  prevent  differential  

treatment for the reasons of non conformity with normal or natural sexual or gender  

roles.  Sex  relations  are  intricately  tied  to  gender  stereotypes.  Accordingly  

discrimination on the ground of sex necessarily includes discrimination on the basis  

of  sexual  orientation.  Like gender  discrimination, discrimination on the  basis  of  

sexual orientation is directed against an immutable and core characteristic of human  

personality. Even international law recognises sexual orientation as being included  

in the ground “sex”. The determination of impact of a legislation must be taken in  

a contextual manner taking into account the content, purpose, characteristics and  

circumstances of the law. Section 377 does not take into account the differences  

in individuals in terms of  their  sexual  orientation and makes  sexual  practices  

relevant  to  and  associated  with  a  class  of  homosexual  persons  criminal.  It  

criminalises  acts  which  are  normal  sexual  expressions  for  homosexual  men  

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because they can only indulge in penetrative acts which are penile non vaginal.  

Distinction based on a prohibited ground cannot be allowed regardless of how  

laudable the object is. If a law operates to discriminate against some persons only  

on the basis of a prohibited ground, it must be struck down. (M Nagaraj v. UoI,  

Anuj Garg v. Hotel Association of India, Toonen v. Australia, Egan v. Canada,  

Vriend v. Alberta, Punjab Province v. Daulat Singh AIR 1946 PC 66, State of  

Bombay v.  Bombay Education Society [1955] SCR 568 ).  Shri Grover   also  

submitted that the Courts in other countries have struck down similar laws that  

criminalise same-sex sexual conduct on the ground that they violate the right to  

privacy, dignity and equality.

20. Shri Ashok Desai,  learned senior counsel,  who appeared for Shri  

Shyam Benegal argued that Section 377 IPC, which is a pre-Constitution statute,  

should be interpreted in a manner which may ensure protection of freedom and  

dignity  of  the  individuals.   He  submitted  that  the  Court  should  also  take  

cognizance of changing values and temporal reasonableness of a statute.  Shri  

Desai emphasized that the attitude of the society is fast changing and the acts  

which were treated as offence should no longer be made punitive.  He referred to  

medical literature to show that sexuality is a human condition and argued that it  

should not be regarded as a depravity or a sin or a crime.  Learned senior counsel  

submitted that in view of Section 377 IPC which stigmatized homosexuality, not  

only homosexuals but their families face stigma and discrimination.  He referred  

to  the  recommendations made by 172nd Law Commission Report  for  deleting  

Section 377 IPC, the survey conducted by Outlook Magazine giving the statistics  

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of the persons who indulged in different sexual practices, the support extended by  

the  eminent  persons  including  Swami  Agnivesh,  Soli  J.  Sorabjee  (Senior  

Advocate),  Capt.  Laxmi  Sehgal,  Aruna  Roy,  Prof.  Amartya  Sen  and  Prof.  

Upendra Baxi for deleting Section 377 IPC and submitted that the impugned order  

should be upheld.  Learned senior counsel further argued that Section 377 IPC,  

which  applies  to  same  sex  relations  between  consenting  adults  violates  the  

constitutional guarantee of equality under Articles 14 and 15 and the High Court  

rightly  applied  Yogyakarta  principles  for  de-criminalisation  of  the  section  

challenged in the writ petition filed by respondent No.1.  He supported the High  

Court’s decision to invoke the principle of severability.  Shri Ram Jethmalani,  

Senior Advocate, who did not argue the case, but filed written submissions also  

supported the impugned order and argued that the High Court did not commit any  

error by declaring Section 377 IPC as violative of Articles 14, 15 and 21 of the  

Constitution.

21. The learned Attorney General, who argued the case as Amicus, invited our  

attention to affidavit dated 1.3.2012 filed on behalf of the Home Ministry to show  

that  the  Group of  Ministers  constituted  for  looking into the  issue  relating to  

constitutionality of Section 377 IPC recommended that there is no error in the  

impugned order, but the Supreme Court may take final view in the matter.  The  

learned Attorney General submitted that the declaration granted by the High Court  

may not result in deletion of Section 377 IPC from the statute book, but a proviso  

would have to be added to clarify that nothing contained therein shall apply to any  

sexual activity between the two consenting adults in private.  Learned Attorney  

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General also emphasised that the Court must take cognizance of the changing  

social values and reject the moral views prevalent in Britain in the 18th century.

22. Shri P.P. Malhotra, learned Additional Solicitor General, who appeared on  

behalf of the Ministry of Home Affairs, referred to the affidavit filed before the  

Delhi  High  Court  wherein  the  Ministry  of  Home  Affairs  had  opposed  de-

criminalisation of  homosexuality and argued that  in its  42nd Report,  the  Law  

Commission had recommended retention of Section 377 IPC because the societal  

disapproval  thereof  was  very  strong.   Learned  Additional  Solicitor  General  

submitted that the legislature, which represents the will of the people has decided  

not to delete and it is not for the Court to  import the extra-ordinary moral values  

and thrust the same upon the society.  He emphasized that even after 60 years of  

independence, Parliament has not thought it proper to delete or amend Section  

377 IPC and there is no warrant for the High Court to have declared the provision  

as ultra vires Articles 14,15 and 21 of the Constitution.

23. Shri Mohan Jain, learned Additional Solicitor General who appeared on  

behalf of the Ministry of Health,  submitted that  because  of their risky sexual  

behaviour, MSM and female sex workers are at a high risk of getting HIV/AIDS  

as  compared  to  normal human beings.   He pointed  out  that  as  in 2009,  the  

estimated number of MSM was 12.4 lakhs.

24. We have considered the arguments/submissions of the learned counsel and  

perused  the  detailed  written submissions  filed by them.  We  have also  gone  

through the voluminous literature placed on record and the judgments of other  

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jurisdictions to which reference has been made in the impugned order and on  

which reliance has been placed by the learned counsel who have supported the  

order under challenge.  

25. We shall first deal with the issue relating to the scope of judicial review of  

legislations. Since Section 377 IPC is a pre-Constitutional legislation, it has been  

adopted after enactment of the Constitution, it will be useful to analyse the ambit  

and scope of the powers of the superior Courts to declare such a provision as  

unconstitutional.  Articles 13, 14, 15, 19, 21, 32, 226 and 372 of the Constitution,  

which have bearing on the issue mentioned herein above read as under:

“13.  Laws  inconsistent  with  or  in  derogation  of  the  fundamental rights.—(1) All laws in force in the territory of  India  immediately  before  the  commencement  of  this  Constitution,  in  so  far  as  they  are  inconsistent  with  the  provisions of this Part, shall, to the extent of such inconsistency,  be void.  

(2)  The  State  shall  not  make  any law which takes  away  or  abridges the rights conferred by this Part and any law made in  contravention  of  this  clause  shall,  to  the  extent  of  the  contravention, be void.  

(3) In this Article, unless the context otherwise requires,—  (a)  “law”  includes  any  Ordinance,  order,  bye-law,  rule,  regulation, notification, custom or usage having in the territory of  India the force of law;  (b)  “laws  in  force”  includes  laws  passed  or  made  by  a  Legislature or other competent authority in the territory of India  before  the  commencement  of  this  Constitution  and  not  previously repealed, notwithstanding that any such law or any  part  thereof may not  be  then in operation either  at  all  or  in  particular areas.  (4) Nothing in this Article shall apply to any amendment of this  Constitution made under Article 368.

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

15.  Prohibition  of  discrimination  on  grounds  of  religion,  race, caste, sex or place of birth-

(1)  The  State  shall  not  discriminate  against  any  citizen  on  grounds only of religion, race, caste, sex, place of birth or any of  them. (2) No citizen shall, on ground only of religion, race, caste, sex,  place  of  birth  or  any  of  them,  be  subject  to  any  disability,  liability, restriction or condition with regard to - (a)  access  to  shops,  public  restaurants,  hotels  and  places  of  publicentertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of  public resort maintained whole or partly out of State funds or  dedicated to the use of general public. (3) Nothing in this article shall prevent the State from making  any special provision for women and children. (4)  Nothing in this  article  or  in clause  (2)  or  article 29 shall  prevent  the  State  from making any special  provision for  the  advancement of any socially and educationally backward classes  of  citizens  or  for  the  Scheduled  Castes  and  the  Scheduled  Tribes. (5) Nothing I  this article or in sub-clause (g) of clause () of  article  19  shall  prevent  the  State  from making  any  special  provision,  by  law,  for  the  advancement  of  any  socially  and  educationally backward classes of citizen or for the Scheduled  Castes or Scheduled Tribes in so far as such special provisions  relate  to  their  admission to  educational  institutions  including  private educational institutions, whether aided or unaided by the  State, other than the minority educational institutions referred to  in Clause (1) of article 30.  

19. Protection of certain rights regarding freedom of speech  etc.- (1) All citizens shall have the right-  (a) to freedom of speech and expression;  (b) to assemble peaceably and without arms;  

to form associations or unions;  (d) to move freely throughout the territory of India;  (e) to reside and settle in any part of the territory of India; and  (f) omitted  (g) to practise any profession, or to carry on any occupation,  trade or business.

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(2)  Nothing  in  sub-clause  (a)  of  clause  (1)  shall  affect  the  operation of any existing law, or prevent the State from making  any law, in so far as such law imposes reasonable restrictions on  the exercise of the right conferred by the said sub-clause in the  interests of the sovereignty and integrity of India, the security of  the  State,  friendly relations with foreign States,  public order,  decency  or  morality  or  in  relation  to  contempt  of  court,  defamation or incitement to an offence.  

(3) Nothing in sub-clause (b) of the said clause shall affect the  operation of any existing law in so far as it imposes, or prevent  the State from making any law imposing, in the interests of the  sovereignty and integrity of India or  public order,  reasonable  restrictions on the exercise of the right conferred by the said sub- clause.  

(4) Nothing in sub-clause   of the said clause shall affect the  operation of any existing law in so far as it imposes, or prevent  the State from making any law imposing, in the interests of the  sovereignty and integrity of India or public order or morality,  reasonable restrictions on the exercise of the right conferred by  the said sub-clause.  

(5) Nothing in sub-clauses (d) and (e) of the said clause shall  affect the operation of any existing law in so far as it imposes, or  prevent  the  State  from making any law imposing,  reasonable  restrictions on the exercise of any of the rights conferred by the  said sub-clauses either in the interests of the general public or for  the protection of the interests of any Scheduled Tribe.  

(6) Nothing in sub-clause (g) of the said clause shall affect the  operation of any existing law in so far as it imposes, or prevent  the State from making any law imposing, in the interests of the  general  public,  reasonable  restrictions  on the  exercise  of  the  right conferred by the said sub-clause, and, in particular, nothing  in the said sub-clause shall affect the operation of any existing  law in so far as it relates to, or prevent the State from making  any law relating to,-   

(i)  the  professional  or  technical  qualifications  necessary  for  practising any profession or carrying on any occupation, trade or  business, or   

(ii) the carrying on by the State, or by a corporation owned or  

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controlled  by  the  State,  of  any  trade,  business,  industry  or  service, whether to the exclusion, complete or partial, of citizens  or otherwise.

21. Protection of life and personal liberty. — No person shall  be deprived of his life or personal liberty except according to  procedure established by law.

32.  Remedies  for  enforcement of  rights conferred  by this  Part.— (1)  The  right  to  move  the  Supreme  Court  by  appropriate  proceedings for the enforcement of the rights conferred by this  Part is guaranteed.  (2) The Supreme Court shall have power to issue directions or  orders or writs, including writs in the nature of habeas corpus,  mandamus, prohibition, quo warranto and certiorari, whichever  may be  appropriate,  for the enforcement of any of the rights  conferred by this Part.  (3) Without prejudice to the powers conferred on the Supreme  Court by clauses (1) and (2), Parliament may by law empower  any  other  court  to  exercise  within  the  local  limits  of  its  jurisdiction all or any of the powers exercisable by the Supreme  Court under clause (2).  (4) The right guaranteed by this Article shall not be suspended  except as otherwise provided for by this Constitution.

226. Power of High Courts to issue certain writs.— (1) Notwithstanding anything in Article 32,  every High Court  shall have power, throughout the territories in relation to which it  exercises  jurisdiction,  to  issue  to  any  person  or  authority,  including in appropriate  cases,  any Government,  within those  territories  directions,  orders  or  writs,  including  writs  in  the  nature of habeas corpus, mandamus, prohibition, quo warranto  and certiorari, or any of them, for the enforcement of any of the  rights conferred by Part III and for any other purpose.  

(2) The power conferred by clause (1) to issue directions, orders  or writs to any Government, authority or person may also be  exercised by any High Court exercising jurisdiction in relation to  the territories within which the cause of action, wholly or in part,  arises for the exercise of such power, notwithstanding that the  seat of such Government or authority or the residence of such  person is not within those territories.  

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(3) Where any party against whom an interim order, whether by  way of injunction or stay or in any other manner, is made on, or  in  any  proceedings  relating  to,  a  petition  under  clause  (1),  without—  (a)  furnishing to  such  party  copies  of  such  petition  and  all  documents in support of the plea for such interim order; and  (b) giving such party an opportunity of being heard, makes an  application to the High Court for the vacation of such order and  furnishes a copy of such application to the party in whose favour  such order has been made or the counsel of such party, the High  Court shall dispose  of the application within a  period of two  weeks from the date on which it is received or from the date on  which the copy of such application is so furnished, whichever is  later, or where the High Court is closed on the last day of that  period, before the expiry of the next day afterwards on which the  High Court is open; and if the application is not so disposed of,  the interim order shall, on the expiry of that period, or, as the  case may be, the expiry of the said next day, stand vacated.  

(4) The power conferred on a High Court by this Article shall  not be in derogation of the power  conferred on the Supreme  Court by clause (2) of Article 32.  

372.  Continuance  in  force  of  existing  laws  and  their  adaptation.— (1)  Notwithstanding  the  repeal  by  this  Constitution  of  the  enactments referred to in  Article  395  but  subject  to  the  other  provisions  of  this  Constitution,  all  the  law  in  force  in  the  territory  of  India  immediately before the commencement of this Constitution shall  continue in force therein until altered or repealed or amended by  a competent Legislature or other competent authority.  (2) For the purpose of bringing the provisions of any law in force  in the territory of India into accord with the provisions of this  Constitution, the President may by order make such adaptations  and modifications of such law,  whether  by way of repeal  or  amendment, as may be necessary or expedient, and provide that  the law shall, as from such date as may be specified in the order,  have  effect  subject  to  the  adaptations  and  modifications  so  made,  and  any  such  adaptation  or  modification  shall  not  be  questioned in any court of law.  (3) Nothing in clause (2) shall be deemed—  (a)  to  empower  the  President  to  make  any  adaptation  or  modification of any law after the expiration of three years from  the commencement of this Constitution; or  

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(b)  to  prevent  any competent  Legislature  or  other  competent  authority  from  repealing  or  amending  any  law  adapted  or  modified by the President under the said clause.  Explanation I.—The expression “law in force” in this Article  shall include a  law passed or made by a Legislature or other  competent  authority  in  the  territory  of  India  before  the  commencement of this Constitution and not previously repealed,  notwithstanding that it or parts of it may not be then in operation  either at all or in particular areas.  Explanation II.—Any law passed or made by a Legislature or  other  competent  authority  in  the  territory  of  India  which  immediately before the commencement of this Constitution had  extra-territorial effect as well as effect in the territory of India  shall,  subject  to  any  such  adaptations  and  modifications  as  aforesaid, continue to have such extra-territorial effect.  Explanation III.—Nothing in this Article shall be construed as  continuing any temporary law in force beyond the date fixed for  its expiration or the date on which it would have expired if this  Constitution had not come into force.  Explanation IV.—An Ordinance promulgated by the Governor  of a Province under section 88 of the Government of India Act,  1935, and in force immediately before the commencement of this  Constitution shall,  unless  withdrawn by  the  Governor  of  the  corresponding State earlier, cease to operate at the expiration of  six weeks from the first meeting after such commencement of  the Legislative Assembly of that State functioning under clause  (1) of Article 382, and nothing in this Article shall be construed  as  continuing any  such  Ordinance  in  force  beyond  the  said  period.”

26. A plain reading of these Articles suggests that the 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 III 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  

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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.

27. The principle was succinctly enunciated by a Constitutional Bench in Ram  

Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538 in the  

following words:

“…  (b)  that  there  is  always  a  presumption in  favour  of  the  constitutionality of an enactment and the burden is upon him  who attacks it to show that there has been a clear transgression  of the constitutional principles;  

(c) that it must be presumed that the legislature understands and  correctly appreciates the need of its own people, that its laws are  directed to problems made manifest by experience and that its  discriminations are based on adequate grounds;  

(d) that the legislature is free to recognise degrees of harm and  may confine its  restrictions to  those  cases  where the need is  deemed to be the clearest;  

(e) that in order to sustain the presumption of constitutionality  the  court  may  take  into  consideration  matters  of  common  knowledge, matters of common report, the history of the times  and may assume every state of facts which can be conceived  existing at the time of legislation; and  

(f)  that  while  good  faith  and  knowledge  of  the  existing  conditions on the part  of a  legislature are  to be presumed, if  there  is  nothing on  the  face  of  the  law  or  the  surrounding  circumstances brought to the notice of the court on which the  classification  may  reasonably  be  regarded  as  based,  the  presumption of constitutionality cannot be carried to the extent  of  always  holding that  there  must  be  some  undisclosed  and  unknown  reasons  for  subjecting  certain  individuals  or  corporations to hostile or discriminating legislation.”

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In John Vallamattom and Anr. v. Union of India AIR 2003 SC 2902, this  

Court, while referring to an amendment made in UK in relation to a provision  

which was in pari materia with Section 118 of Indian Succession Act, observed:

“The constitutionality of a provision, it is trite, will have to be  judged keeping in view the interpretative changes of the statute  affected by passage of time.”

Referring  to  the  changing  legal  scenario  and  having  regard  to  the  

Declaration on the Right to Development adopted by the World Conference on  

Human Rights as also Article 18 of the United Nations Covenant on Civil and  

Political Rights, 1966, this Court observed:

“It is trite that having regard to Article 13(1) of the Constitution,  the constitutionality of the impugned legislation is required to be  considered on the basis of laws existing on 26-1-1950, but while  doing  so  the  court  is  not  precluded  from  taking  into  consideration  the  subsequent  events  which  have  taken  place  thereafter.  It  is  further  trite  that  the  law  although  may  be  constitutional when enacted but with passage of time the same  may be  held  to  be  unconstitutional  in  view  of  the  changed  situation.”

Presumption of constitutionality:

28. 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  

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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.

29. 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.  In  R.M.D.  

Chamarbaugwalla v. The Union of India (UOI) AIR 1957 SC 628, a Constitution  

Bench of this Court noted several earlier judgments on the issue of severability  

and observed as follows:

“The doctrine of severability rests, as will presently be shown,  on a  presumed intention of the legislature that  if a  part  of a  statute turns out to be void, that should not affect the validity of  the rest of it, and that that intention is to be ascertained from the  terms of the statute. It is the true nature of the subject-matter of  the  legislation  that  is  the  determining  factor,  and  while  a  classification  made  in  the  statute  might  go  far  to  support  a  conclusion in favour of severability, the absence of it does not  necessarily preclude it.

When a statute is in part void, it will be enforced as regards the  rest, if that is severable from what is invalid. It is immaterial for  the  purpose  of  this  rule  whether  the  invalidity of  the  statute  arises  by  reason  of  its  subject-matter  being  outside  the  competence  of  the  legislature  or  by  reason  of  its  provisions  contravening constitutional prohibitions.

26.  That  being  the  position  in  law,  it  is  now  necessary  to  consider whether the impugned provisions are severable in their  application to competitions of a gambling character, assuming of  

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course that the definition of 'prize competition' in s. 2(d) is wide  enough  to  include  also  competitions  involving  skill  to  a  substantial degree. It will be useful for the determination of this  question to refer to certain rules of construction laid down by the  American Courts,  where the question of severability has been  the subject of consideration in numerous authorities. They may  be summarised as follows:  

1.  In  determining  whether  the  valid  parts  of  a  statute  are  separable from the invalid parts thereof, it is the intention of the  legislature that is the determining factor. The test to be applied is  whether the legislature would have enacted the valid part if it  had known that the rest of the statute was invalid. Vide Corpus  Juris  Secundum,  Vol.  82,  p.  156;  Sutherland  on  Statutory  Construction, Vol. 2, pp. 176-177.  

2. If the valid and invalid provisions are so inextricably mixed up  that  they  cannot  be  separated  from  one  another,  then  the  invalidity of a portion must result in the invalidity of the Act in  its  entirety.  On  the  other  hand,  if  they  are  so  distinct  and  separate that after striking out what is invalid, what remains is in  itself a complete code independent of the rest,  then it will be  upheld notwithstanding that the rest has become unenforceable.  Vide Cooley's Constitutional Limitations, Vol. 1 at pp. 360-361;  Crawford on Statutory Construction, pp. 217-218.  

3.  Even when the provisions which are valid are distinct and  separate from those which are invalid, if they all form part of a  single scheme which is intended to be operative as a whole, then  also the invalidity of a part will result in the failure of the whole.  Vide Crawford on Statutory Construction, pp. 218-219.  

4. Likewise,  when the valid and invalid parts of a statute are  independent and do not form part of a scheme but what is left  after omitting the invalid portion is so thin and truncated as to be  in substance different from what it was when it emerged out of  the legislature, then also it will be rejected in its entirety.  

5. The separability of the valid and invalid provisions of a statute  does  not  depend on whether  the law is  enacted  in the  same  section  or  different  sections;  (Vide  Cooley's  Constitutional  Limitations,  Vol.  1,  pp.  361-362);  it  is  not  the form, but the  substance  of  the  matter  that  is  material,  and  that  has  to  be  ascertained on an examination of the Act as a whole and of the  setting of the relevant provisions therein.  

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6. If after the invalid portion is expunged from the statute what  remains  cannot  be  enforced  without  making  alterations  and  modifications therein, then the whole of it must be struck down  as void, as otherwise it will amount to judicial legislation. Vide  Sutherland on Statutory Construction, Vol. 2, p. 194.  

7.  In  determining  the  legislative  intent  on  the  question  of  separability, it will be legitimate to take into account the history  of the legislation, its object, the title and the preamble to it. Vide  Sutherland on Statutory Construction, Vol. 2, pp. 177-178.”

30. Another significant canon of determination of constitutionality is that the  

Courts would be reluctant to declare a law invalid or  ultra vires on account of  

unconstitutionality. The Courts would accept an interpretation, which would be in  

favour  of  constitutionality  rather  than  the  one  which  would  render  the  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 to make it effective, workable and  

ensure the attainment of the object of the Act.  These are the principles which  

clearly  emerge  from the  consistent  view  taken  by  this  Court  in  its  various  

pronouncements including the recent judgment in Namit Sharma v. Union of India  

(2013)1 SCC 745.  

In  D.S.  Nakara and Ors. v.  Union of India (UOI) (1983) 1 SCC 305 a  

Constitution Bench of this Court elucidated upon the practice of reading down  

statutes  as  an  application  of  the  doctrine  of  severability  while  answering  in  

affirmative the question whether differential treatment to pensioners related to the  

date of retirement qua the revised formula for computation of pension attracts  

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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.    

(iii) The doctrine of severability seeks to ensure that only that portion of the  

law which is unconstitutional is so declared and the remainder is saved.  

This doctrine should be applied keeping in mind the scheme and purpose  

of the law and the intention of the Legislature and should be avoided where  

the two portions are inextricably mixed with one another.   

(iv) The court can resort to reading down a law in order to save it from being  

rendered unconstitutional. But while doing so, it cannot change the essence  

of the law and create a new law which in its opinion is more desirable.  

32. Applying the afore-stated principles to the case in hand, we deem it proper  

to observe that while the High Court and this Court are empowered to review the  

constitutionality of  Section  377  IPC  and  strike  it  down to  the  extent  of  its  

inconsistency with  the  Constitution,  self  restraint  must  be  exercised  and  the  

analysis  must  be  guided  by  the  presumption  of  constitutionality.  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  

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proper to delete the provision.  Such a conclusion is further strengthened by the  

fact that despite the decision of the Union of India to not 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 immune from constitutional challenge, it  

must nonetheless guide our understanding of character, scope, ambit and import.  

33. It is, therefore, apposite to say that unless a clear constitutional violation is  

proved, this Court is not empowered to strike down a law merely by virtue of its  

falling into disuse or the perception of the society having changed as regards the  

legitimacy of its purpose and its need.

34. We may now notice the relevant provisions of the IPC.   

“Section 375. Rape.-A man is said to commit "rape" who, except in  the case hereinafter excepted, has sexual intercourse with a woman  under  circumstances  falling  under  any  of  the  six  following  descriptions:-

First.-Against her will.

Secondly.-Without her consent.

Thirdly.-With her consent, when her consent has been obtained by  putting her or any person in whom she is interested in fear of death  or of hurt.

Fourthly.-With her consent, when the man knows that he is not her  husband, and that her consent is given because she believes that he  is another man to whom she is or believes herself to be lawfully  married.

Fifthly.-With her consent, when, at the time of giving such consent,  by  reason  of  unsoundness  of  mind  or  intoxication  or  the  administration  by  him  personally  or  through  another  of  any  stupefying or unwholesome substance, she is unable to understand  the nature and consequences of that to which she gives consent.

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Sixthly.-With or  without her  consent,  when she  is  under sixteen  years of age.

Explanation.-Penetration  is  sufficient  to  constitute  the  sexual  intercourse necessary to the offence of rape.

Exception.-Sexual intercourse by a man with his own wife, the wife  not being under fifteen years of age, is not rape.

376.  Punishment  for  rape.--(1)  Whoever,  except  in  the  cases  provided for by sub-section (2),  commits rape shall be punished  with imprisonment of either description for a term which shall not  be less than seven years but which may be for life or for a term  which may extend to ten years and shall also be liable to fine unless  the woman raped is his own wife and is not under twelve years of  age, in which case, he shall be punished with imprisonment of either  description for a term which may extend to two years or with fine or  with both:

Provided that the court may, for adequate and special reasons to be  mentioned in the judgment, impose a sentence of imprisonment for a  term of less than seven years.

(2) Whoever,-  (a) being a police officer commits rape- (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in  the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer  subordinate to him; or  (b) being a public servant, takes advantage of his official position  and commits rape on a woman in his custody as such public servant  or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home  or other place of custody established by or under any law for the  time being in force or of a women's or children's institution takes  advantage of his official position and commits rape on any inmate of  such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes  advantage of his official position and commits rape on a woman in  that hospital; or (e) commits rape on a woman knowing her to be pregnant; or  (f) commits rape on a woman when she is under twelve years of  age; or (g) commits gang rape,

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shall be punished with rigorous imprisonment for a term which shall  not be less than ten years but which may be for life and shall also be  liable to fine: Provided that the court may, for adequate and special reasons to be  mentioned in the judgment, impose a sentence of imprisonment of  either description for a term of less than ten years.

Explanation 1.-Where a women's is raped by one or more in a group  of persons acting in furtherance of their common intention, each of  the persons shall be deemed to have committed gang rape within the  meaning of this sub-section.

Explanation  2.-"women's  or  children's  institution"  means  an  institution, whether called and orphanage or a home for neglected  women or children or a widows' home or by any other name, which  is established and maintained for the reception and care of women  or children.

Explanation 3.-"hospital" means the precincts of the hospital and  includes  the  precincts  of  any  institution  for  the  reception  and  treatment of persons during convalescence or of persons requiring  medical attention or rehabilitation.

377.  Unnatural  offences.--Whoever  voluntarily  has  carnal  intercourse against the order of nature with any man, woman or  animal,  shall  be  punished  with  imprisonment  for  life,  or  with  imprisonment of either description for a term which may extend to  ten years, and shall also be liable to fine.

Explanation.-Penetration  is  sufficient  to  constitute  the  carnal  intercourse necessary to the offence described in this section.”

35. Before proceeding further, we may also notice dictionary meanings of some  

words and expressions, which have bearing on this case.

Buggery – a carnal copulation against nature; a man or a woman  with a brute beast,  a man with a man, or man unnaturally with a  woman. This term is often used interchangeably with “sodomy”.  (Black’s Law Dictionary 6th Edn. 1990)

Carnal –  Pertaining to  the  body,  its  passions  and  its  appetites  animal; fleshy; sensual; impure; sexual. People v. Battilana, 52 Cal.  

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App.2d 685, 126 P.2d 923, 928 (Black’s Law Dictionary 6th edn.  1990)

Carnal knowledge – Coitus; copulation; the act of a man having  sexual bodily connections with a woman; sexual intercourse. Carnal  knowledge of a child is unlawful sexual intercourse with a female  child under the age of consent.  It is a  statutory crime, usually a  felony. Such offense is popularly known as “statutory rape”. While  penetration is an essential element, there is “carnal knowledge” if  there is the slightest penetration of the sexual organ of the female by  the sexual organ of the male. State v. Cross, 2000 S.E.2d 27, 29. It  is not necessary that the vagina be entered or that the hymen be  ruptured; the entering of the vulva or labia is sufficient. De Armond  v. State, Okl. Cr., 285 P.2d 236. (Black’s Law Dictionary 6th edn.  1990)

Nature –  (1)  A fundamental quality that  distinguishes one thing  from another; the essence of something. (2) Something pure or true  as  distinguished  from something artificial  or  contrived.  (3)  The  basic instincts or impulses of someone or something (Black’s Law  Dictionary 9th edn).

LEGISLATIVE HISTORY OF SECTION 377   

ENGLAND   

36. The first records of sodomy as a crime at Common Law in England were  

chronicled in the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed  

that  sodomites  should  be  burnt  alive.  Such offences  were  dealt  with  by  the  

ecclesiastical Courts.

The Buggery Act 1533, formally an Act for the punishment of the vice of  

Buggerie (25 Hen. 8 c.  6), was an Act of the Parliament of England that was  

passed during the reign of Henry VIII. It was the country's first civil sodomy law.  

The Act defined buggery as an unnatural sexual act against the will of God and  

man and prescribed capital punishment for commission of the offence. This Act  

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was later defined by the Courts to include only anal penetration and bestiality.  

The Act remained in force until its repeal in 1828.

The Buggery Act of 1533 was re-enacted in 1563 by Queen Elizabeth I,  

after which it became the charter for the subsequent criminalisation of sodomy in  

the British Colonies. Oral-genital sexual acts were removed from the definition of  

buggery in 1817.  

The Act was repealed by Section 1 of the Offences against the Person Act  

1828 (9 Geo.4 c.31) and by Section 125 of the Criminal Law (India) Act 1828  

(c.74). It was replaced by Section 15 of the Offences against the Person Act 1828,  

and ection 63 of the Criminal Law (India) Act 1828, which provided that buggery  

would continue to be a capital offence.

With the enactment of the Offences against the Person Act 1861 buggery  

was no longer a  capital offence in England and Wales.  It  was  punished with  

imprisonment from 10 years to life.

INDIA   

37. The offence of sodomy was introduced in India on 25.7.1828 through the  

Act  for  Improving the  Administration  of  Criminal  Justice  in  the  East  Indies  

(9.George.IV).  

Chapter LXXIV Clause LXIII “Sodomy” – “And it be enacted, that every  

person  convicted  of  the  abominable  crime of  buggery committed  with  either  

mankind or with any animal, shall suffer death as a felon”.

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In 1837, a Draft Penal Code was prepared which included: Clauses 361 –  

“Whoever intending to gratify unnatural lust, touches for that purpose any person  

or any animal or is by his own consent touched by any person for the purpose of  

gratifying unnatural lust, shall be punished with imprisonment of either description  

for a term which may extend to fourteen years, and must not be less than two  

years”; and Clause 362 - “Whoever intending to gratify unnatural lust, touches for  

that purpose any person without that person’s free and intelligent consent, shall be  

punished with imprisonment of either description for a term which may extend to  

life and must not be less than seven years, and shall also be liable to fine.”

In Note M of the Introductory Report of Lord Macaulay to the Draft Code  

these clauses were left to his Lordship in Council without comment observing  

that:

“Clauses  361  and  362  relate  to  an  odious  class  of  offences  respecting which it is desirable that as little as possible be said. We  leave without comment to the judgment of his Lordship in Council  the two Clauses which we have provided for these offences. We are  unwilling to insert, either in the text, or in the notes, anything which  could have given rise to public discussion on this revolting subject;  as we are decidedly of the opinion that the injury which would be  done to the morals of the community by such discussion would far  more than compensate for any benefits which might be derived from  legislative measures framed with the greatest precision.”

[Note M on Offences Against the Body in Penal Code of 1837 –  Report of the Indian Law Commission on the Penal Code, October  14, 1837.]

However, in Report of the Commissioner’s Vol XXVIII it was observed  

that  the clauses  and the absence  of comments had created  “a  most  improper  

ambiguity”. Some members noted that the existing law on the subject is dead  

letter  and  also  that  the  said  offence  had  been  omitted  in  revised  statutes  of  

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Massachusetts and does not appear in the French Penal Code unless the sufferer is  

below 10 years of age.

“451. The Law Commissioners observe that Clauses 361 and 362  relate to an odious class of offences, respecting which it is desirable  that  as  little  as  possible  should  said.  They  therefore  leave  the  provisions proposed therein without comment to the judgment of the  governor-General  in Council.  Mr  A.D.  Campbell in concurrence  with  Mr.  Blane,  censures  the  false  delicacy  which  has  in  their  opinion caused a most improper ambiguity in these clauses, leaving  it uncertain whether they apply to the mere indecent liberties,  or  extend  to  the  actual  commission  of  an  offence  of  the  nature  indicated.

452. It appears to us clear enough, that it was meant to strike at the  root of the offence by making the first act tending to it liable to the  same punishment, if the Judge shall deem it proper, as the offence  actually accomplished. This is a new principle, and it would have  been better  if the Commissioners had explained for what reason  they adopted  it,  in respect  to  the offences  here  contemplated in  particular. We conceive that there is a very weighty objection to the  clauses  in  question,  in  the  opening  which  they  will  afford  to  calumny, if for an act so slight as may come within the meaning of  the word, “touches”,  a man may be exposed to such a revolting  charge and suffer the ignominy of a public trial upon it.

453. Colonel Sleeman advises the omission of both these clauses,  deeming it most expedient to leave offences against nature silently  to the odium of society. It may give weight to this suggestion to  remark that the existing law on the subject is almost a dead letter, as  appears from the fact that in three years only six cases came before  the Nizamut Adawlut at Calcutta, although it is but true, we fear  that the frequency of the abominable offence in question “remains”  as Mr AD Campbell expresses it, “a horrid stain upon the land.

454. Mr. Livingstone, we observe, makes no mention of offences of  this nature in his code for Louisiana, and they are omitted in the  revised  statutes  of  Massachusetts,  of  which  the  Chapter  “of  offences against the Lives and Persons of Individuals” is appended  to the 2d Report of the English Criminal Law Commissioners. By  the French Penal Code,  offences of this description do not come  within the scope of the law, unless they are effected or attempted by  violence, except the sufferer be under the age of ten years.”

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discharge  and  the  boy  had  to  vomit  it  out.  The  question  that  arose  for  

consideration therein was as to whether the insertion of the male organ by the  

second accused into the orifice of the mouth of the boy amounted to an offence  

under Section 377 IPC.  

The act was the actual replacement of desire of coitus and would amount to  

an offence punishable under Section 377. There was an entry of male penis in the  

orifice of the mouth of the victim. There was the enveloping of a visiting member  

by  the  visited  organism.  There  was  thus  reciprocity;  intercourse  connotes  

reciprocity. It could, therefore, be said that the act in question amounted to an  

offence punishable under Section 377.  

What was sought to be conveyed by the explanation was that even mere  

penetration would be sufficient to constitute carnal intercourse, necessary to the  

offence  referred  to  in  Section  377.  Seminal  discharge,  i.e.,  the  full  act  of  

intercourse was not the essential ingredient to constitute an offence in question.  

It is true that the theory that the sexual intercourse is only meant for the  

purpose of conception is an out-dated theory. But, at the same time it could be  

said  without  any hesitation of  contradiction that  the  orifice  of  mouth is  not,  

according to nature, meant for sexual or carnal intercourse. Viewing from that  

aspect, it could be said that this act of putting a male-organ in the mouth of a  

victim for the purposes of satisfying sexual appetite would be an act of carnal  

intercourse against the order of nature.  

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In State of Kerala v. Kundumkara Govindan and Anr., 1969 Cri LJ 818, the  

Kerala High Court observed:

“18.  Even if I am to hold that there was no penetration into the  vagina and the sexual acts were committed only between the thighs,  I  do not think that  the respondents  can escape  conviction under  Section 377 of the Penal Code.  The counsel of the respondents  contends (in this argument the Public Prosecutor also supports him)  that sexual act between the thighs is not intercourse. The argument  is that for intercourse there must be encirclement of the male organ  by the organ visited; and that in the case of sexual act between the  thighs, there is no possibility of penetration.

19.  The  word  'intercourse'  means  'sexual  connection'  (Concise  Oxford Dictionary). In Khanu v. Emperor AIR 1925 Sind 286 the  meaning of the word 'intercourse' has been considered:

Intercourse may be defined as mutual frequent action by members  of independent organization.

Then  commercial  intercourse,  social  intercourse,  etc.  have  been  considered; and then appears:

By a metaphor the word intercourse, like the word commerce, is  applied  to  the  relations  of  the  sexes.  Here  also  there  is  the  temporary visitation of  one  organism by a  member of  the  other  organization,  for certain clearly defined and limited objects.  The  primary object of the visiting organization is to obtain euphoria by  means of a detent of the nerves consequent on the sexual crisis. But  there is no intercourse unless the visiting member is enveloped at  least  partially by  the  visited  organism,  for  intercourse  connotes  reciprocity.

Therefore, to decide whether there is intercourse or not, what is to  be considered is whether the visiting organ is enveloped at  least  partially by the visited organism. In intercourse between the thighs,  the  visiting  male  organ  is  enveloped  at  least  partially  by  the  organism visited, the thighs: the thighs are kept together and tight.

20.  Then  about  penetration.  The  word  'penetrate'  means  in  the  concise  Oxford  Dictionary  'find  access  into  or  through,  pass  through.' When the male organ is inserted between the thighs kept  together and tight, is there no penetration? The word 'insert' means  place, fit, thrust.' Therefore, if the male organ is 'inserted' or 'thrust'  between  the  thighs,  there  is  'penetration'  to  constitute  unnatural  offence.

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scope for any doubt that the act complained of in punishable under  Sec. 377, IPC.”

Similar views were expressed in State v. Bachmiya Musamiya, 1999 (3)  

Guj LR 2456 and Orissa High Court in Mihir alias Bhikari Charan Sahu v. State  

1992 Cri LJ 488.  However, from these cases  no uniform test can be culled out to  

classify acts as “carnal intercourse against the order of nature”. In our opinion the  

acts  which fall  within the  ambit  of  the  section can  only be  determined with  

reference to the act itself and the circumstances in which it is executed. All the  

aforementioned cases refer to non consensual and markedly coercive situations  

and the keenness of the court in bringing justice to the victims who were either  

women or children cannot be discounted while analyzing the manner in which the  

section has been interpreted. We are apprehensive of whether the Court would  

rule similarly in a case of proved consensual intercourse between adults. Hence it  

is  difficult  to  prepare  a  list  of  acts  which would be  covered  by the  section.  

Nonetheless in light of the plain meaning and legislative history of the section, we  

hold that  Section 377 IPC would apply irrespective of age and consent.  It  is  

relevant to mention here that the 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.  

39. We shall now consider the question whether the High Court was justified in  

entertaining challenge to Section 377 IPC despite the fact that respondent No.1  

had not laid factual foundation to support its challenge.  This issue deserves to be  

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prefaced  by  consideration  of   some precedents.   In  Southern  Petrochemical  

Industries  v.  Electricity  Inspector  (2007)  5  SCC  447,  this  Court  considered  

challenge to the T.N. Tax Consumption or Sale of Electricity Act, 2003.  While  

dealing with the question whether the 2003 Act was  violative of the equality  

clause enshrined in Article 14 of the Constitution, this Court made the following  

observations:

“In absence of necessary pleadings and grounds taken before the  High Court,  we  are  not  in a  position to  agree  with the  learned  counsel  appearing on behalf of  the  appellants  that  only because  Section 13 of the repealed Act is inconsistent with Section 14 of the  2003  Act,  the  same  would  be  arbitrary  by  reason  of  being  discriminatory  in  nature  and  ultra  vires  Article  14  of  the  Constitution of India on the premise that charging section provides  for levy of tax on sale and consumption of electrical energy, while  the exemption provision purports to give power to exempt tax on  “electricity  sold  for  consumption”  and  makes  no  corresponding  provision for exemption of tax on electrical energy self-generated  and consumed.”

In Seema Silk and Sarees v. Directorate of Enforcement  (2008) 5 SCC  

580, this Court considered challenge to Sections 18(2) and (3) of the Foreign  

Exchange Regulation Act,  1973,  referred to paragraphs 69,  70 and 74 of the  

Southern Petrochemical Industries v. Electricity Inspector (supra) and observed:

“In absence of such factual foundation having been pleaded, we  are of the opinion that no case has been made out for declaring the  said provision ultra vires the Constitution of India.”

40. 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  

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targeting MSM community, it miserably failed 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 IDU (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 State-wise  break  up of  

estimated  size  of  high risk  men who  have  sex  with  men has  been  given in  

paragraphs 13 and 14 of the affidavit. In paragraph 19, the State-wise details of  

total adult population, estimated adult HIV prevalence and estimated number of  

HIV infections as in 2009 has been given. These details are wholly insufficient for  

recording  a  finding  that  homosexuals,  gays,  etc.,  are  being  subjected  to  

discriminatory treatment either by State or its agencies or the society.

41. The  question  whether  a  particular  classification is  unconstitutional  was  

considered in Re: Special Courts Bill, 1978 (1979) 1 SCC 380.  Speaking for  

majority of the Constitution Bench, Chandrachud, CJ, referred to large number of  

precedents relating to the scope of Article 14 and concluded several propositions  

including the following:

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family the person is found guilty. Therefore,  the High Court was  not right in  

declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.

43. While reading down Section 377 IPC,  the Division Bench of  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.  

44. 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 statues. However while analyzing  

a provision the vagaries of language must be borne in mind and prior application  

of the law must be considered. In A.K. Roy and Ors. v. Union of India and Ors.  

(1982) 1 SCC 271, a Constitution Bench observed as follows:

“67. The requirement that crimes must be defined with appropriate  definiteness is regarded as a fundamental concept in criminal law  and must now be regarded as a pervading theme of our Constitution  since  the decision in Maneka  Gandhi [1978]  2  SCR 621  .  The  underlying principle is that every person is entitled to be informed  as  to  what  the State  commands or  forbids and that  the life and  liberty of a person cannot be put in peril on an ambiguity. However,  even in the domain of criminal law, the processes  of which can  result in the taking away of life itself, no more than a reasonable  degree of certainty has to be accepted as a fact. Neither the criminal  law  nor  the  Constitution  requires  the  application  of  impossible  standards and therefore, what is expected is that the language of the  law must contain an adequate warning of the conduct which may  fall  within  the  prescribed  area,  when  measured  by  common  understanding. In criminal law, the legislature frequently uses vague  expressions  like 'bring into hatred  or  contempt',  'maintenance  of  

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harmony between  different  religious  groups'  or  'likely  to  cause  disharmony or hatred or ill-will', or 'annoyance to the public', (see  Sections  124A,  153A(1)(b),  153B(1)(c),  and  268  of  the  Penal  Code). These expressions, though they are difficult to define, do not  elude a just application to practical situations. The use of language  carries with it the inconvenience of the imperfections of language.”

In K.A. Abbas v. The Union of India (UOI) and Anr. (1970) 2 SCC 780 the  

Court observed:  

“46. These observations which are clearly obiter are apt to be too  generally applied and need to be explained. While it is true that the  principles evolved by the Supreme Court of the United States of  America  in  the  application  of  the  Fourteenth  Amendment  were  eschewed in our Constitution and instead the limits of restrictions  on each fundamental right were indicated in the clauses that follow  the first clause of the nineteenth Article, it cannot be said as  an  absolute  principle that  no  law will  be  considered  bad  for  sheer  vagueness. There is ample authority for the proposition that a law  affecting fundamental rights may be so considered. A very pertinent  example is to be found in State of Madhya Pradesh and Anr. v.  Baldeo Prasad where the Central Provinces and Berar Goondas Act  1946  was  declared  void  for  uncertainty.  The  condition  for  the  application of Sections 4 and 4A was that the person sought to be  proceeded against must be a goonda but the definition of goonda in  the Act indicated no tests for deciding which person fell within the  definition. The provisions were therefore held to be uncertain and  vague.

47. The real rule is that if a law is vague or appears to be so, the  court  must  try  to  construe  it,  as  far  as  may be,  and  language  permitting, the construction sought to be placed on it, must be in  accordance with the intention of the legislature. Thus if the law is  open to diverse construction, that construction which accords best  with the intention of the legislature and advances the purpose of  legislation, is to be preferred. Where however the law admits of no  such construction and the persons applying it are in a boundless sea  of uncertainty and the law prima facie takes  away a  guaranteed  freedom, the law must be held to offend the Constitution as was  done in the case of the Goonda Act. This is not application of the  doctrine of due process. The invalidity arises from the probability of  the misuse of the law to the detriment of the individual. If possible,  

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the Court instead of striking down the law may itself draw the line  of demarcation where possible but this effort should be sparingly  made and only in the clearest of cases.”

45. We  may  now  deal  with  the  issue  of  violation  of  Article  21  of  the  

Constitution. The requirement of substantive due process has been read into the  

Indian Constitution through a 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. In Maneka  

Gandhi  v.  Union  of  India  (supra),  this  Court  laid  down  the  due  process  

requirement in the following words:

“13. Articles dealing with different fundamental rights contained in  Part  III  of  the  Constitution  do  not  represent  entirely  separate  streams of rights which do not mingle at many points. They are all  parts of an integrated scheme in the Constitution. Their waters must  mix to constitute that grand flow of unimpeded and impartial Justice  (social,  economic  and  political),  Freedom (not  only  of  thought,  expression,  belief,  faith  and  worship,  but  also  of  association,  movement, vocation or  occupation as  well as  of acquisition and  possession of reasonable property),  of Equality (of status and of  opportunity,  which  imply  absence  of  unreasonable  or  unfair  discrimination  between  individuals,  groups  and  classes),  and  of  Fraternity (assuring dignity of the individual and the unity of the  nation),  which  our  Constitution  visualises.  Isolation  of  various  aspects  of  human freedom,  for  purposes  of  their  protection,  is  neither realistic nor beneficial but would defeat the very objects of  such protection….

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Constitution our contemplation cannot only be of what has been but  what may be." Time works changes and brings into existence new  conditions. Subtler and far reaching means of invadings privacy will  make it possible to be heard in the street what is whispered in the  closet.  Yet,  too  broad  a  definition  of  privacy  raises  serious  questions about the propriety of judicial reliance on a right that is  not  explicit  in  the  Constitution.  Of  course,  privacy  primarily  concerns the individuals. It therefore relates to and overlaps with  the concept of liberty. The most serious advocate of privacy must  confess that there are serious problems of defining the essence and  scope of the right. Privacy interest in autonomy must also be placed  in the context of other rights and values.

24. Any right to privacy must encompass and protect the personal  intimacies  of  the  home,  the  family  marriage,  motherhood,  procreation  and  child  rearing.  This  catalogue  approach  to  the  question is obviously not as instructive as it does not give analytical  picture  of  that  distinctive characteristics  of  the  right of  privacy.  Perhaps,  the  only  suggestion  that  can  be  offered  as  unifying  principle  underlying  the  concept  has  been  the  assertion  that  a  claimed right must be a fundamental right implicit in the concept of  ordered liberty.

25. Rights and freedoms of citizens are set forth in the Constitution  in order to guarantee that the individual, his personality and those  things  stamped  with  his  personality  shall  be  free  from official  interference except where a  reasonable basis for intrusion exists.  "Liberty against government" a phrase coined by Professor Corwin  express this idea forcefully. In this sense, many of the fundamental  rights of citizens can be described as contributing to the right to  privacy.

26. As Ely says: "There is nothing to prevent one from using the  word  'privacy'  to  mean  the  freedom  to  live  one's  life  without  governmental interference. But the Court obviously does not so use  the term. Nor could it, for such a right is at stake in every case" see  "The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale  L.J. 920.

27. There are two possible theories for protecting privacy of home.  The first is that activities in the home harm others only to the extent  that  they  cause  offence  resulting  from  the  mere  thought  that  individuals might he engaging in such activities and that such 'harm'  is not Constitutionally protective by the state. The second is that  individuals need a place of sanctuary where they can be free from  societal  control.  The  importance  of  such  a  sanctuary  is  that  individuals can drop the mask, desist for a while from projecting on  

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and research workers to  confound those  who want to  retain the  capital  punishment.  The  controversy  is  not  yet  ended  and  experiments  are  made  by  suspending the  death  sentence  where  possible in order to see its effect. On the other hand most of these  studies suffer from one grave defect namely that they consider all  murders as  stereotypes,  the result of sudden passion or the like,  disregarding motivation in each individual case. A large number of  murders is undoubtedly of the common type. But some at least are  diabolical  in conception and  cruel  in execution.  In  some others  where the victim is a person of high standing in the country society  is liable to be rocked to its very foundation. Such murders cannot be  simply wished away by finding alibis in the social maladjustment of  the murderer. Prevalence of such crimes speaks, in the opinion of  many, for  the inevitability of  death penalty not  only by way of  deterrence but as a token of emphatic disapproval by the society.

14. We have grave doubts about the expediency of transplanting  Western experience in our country. Social conditions are different  and  so  also  the  general  intellectual  level.  In  the  context  of  our  Criminal Law which punishes murder, one cannot ignore the fact  that life imprisonment works out in most cases to a dozen years of  imprisonment and it may be seriously questioned whether that sole  alternative will be an adequate substitute for the death penalty. We  have not been referred to any large-scale studies of crime statistics  compiled in this country with the object of estimating the need of  protection of the society against  murders.  The only authoritative  study is that of the Law Commission of India published in 1967. It  is its Thirty-fifth Report. After collecting as much available material  as possible and assessing the views expressed in the West both by  abolitionists and the retentionists the Law Commission has come to  its  conclusion  at  paras  262  to  264.  These  paragraphs  are  summarized by the Commission as follows at p. 354 of the Report:

“The issue of abolition or  retention has  to  be  decided on a  balancing of the various arguments for and against retention. No  single argument for abolition or retention can decide the issue. In  arriving at any conclusion on the subject,  the need for protecting  society in general and individual human beings must be borne in  mind.

It is difficult to rule out the validity of, or the strength behind,  many of the arguments for abolition. Nor does the Commission treat  lightly the argument based on the irrevocability of the sentence of  death,  the  need  for  a  modern  approach,  the  severity  of  capital  punishment, and the strong feeling shown by certain sections of  public opinion in stressing deeper questions of human values.

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Having regard, however, to the conditions in India, to the variety  of the social upbringing of its inhabitants,  to the disparity in the  level of morality and education in the country, to the vastness of its  area, to the diversity of its population and to the paramount need for  maintaining law and order in the country at the present juncture,  India cannot risk the experiment of abolition of capital punishment.

Arguments which would be valid in respect of one area of the  world may not hold good in respect of another area, in this context.  Similarly, even if abolition in some parts of India may not make a  material difference, it may be fraught with serious consequences in  other parts.

On a consideration of all the issues involved, the Commission is  of the opinion, that capital punishment should be retained in the  present state of the country.”

The Court also referred to an earlier judgment in State of Madras v. V.G.  

Row 1952 SCR 597. In that case, Patanjali Sastri, CJ. observed:

“It  is  important  in this  context  to  bear  in mind that  the test  of  reasonableness,  wherever  prescribed,  should  be  applied  to  each  individual statute  impugned, and to  abstract  standard,  or  general  pattern,  of reasonableness  can be  laid down as  applicable to  all  cases.  The nature of the right alleged to have been infringed, the  underlying  purpose  of  the  restrictions  imposed,  the  extent  and  urgency of the evil sought to be remedied thereby, the disproportion  of the imposition, the prevailing conditions at the time, should all  enter into the judicial verdict. In evaluating such elusive factors and  forming their  own  conception  of  what  is  reasonable,  in  all  the  circumstances  of  a  given  case,  it  is  inevitable  that  the  social  philosophy and the scale of values of the judges participating in the  decision  should  play  an  important  part,  and  the  limit  to  their  interference with legislative judgment in such cases  can only be  dictated by their sense of responsibility and self-restraint and the  sobering reflection that the Constitution is meant not only for people  of their way of thinking but for all, and that the majority of the  elected  representatives  of  the  people  have,  in  authorising  the  imposition of the restrictions, considered them to be reasonable”.  The responsibility of Judges in that respect is the greater, since the  question as to whether capital sentence for murder is appropriate in  modern  times  has  raised  serious  controversy  the  world  over,  sometimes, with emotional overtones. It is, therefore, essential that  we approach this constitutional question with objectivity and proper  measure of self-restraint.”

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53. The afore-stated judgment was relied upon in Surendra Pal v. Saraswati  

Arora (1974) 2 SCC 600.  Learned counsel who appeared for the appellant in that  

case relied upon a  passage from Halsbury’s Laws of England on the issue of  

presumption of undue influence in the case  of parties  engaged to be married.  

While refusing to  rely upon the proposition laid down in Halsbury’s  laws of  

England, this Court observed:

“The  family  law  in  England  has  undergone  a  drastic  change,  recognised new social relationship between man and woman. In our  country, however, even today a marriage is an arranged affair. We  do not say that there are no exceptions to this practice or that there  is no tendency, however imperceptible, for young persons to choose  their  own spouses,  but  even in such cases  the  consent  of  their  parents is one of the desiderata which is sought for. Whether it is  obtained in any given set of circumstances is another matter. In such  arranged  marriages  in  this  country the  question  of  two  persons  being engaged for any appreciable time to enable each other to meet  and be in a position to exercise undue influence on one another very  rarely arises. Even in the case of the marriage in the instant case, an  advertisement  was  resorted  to  by  Bhim Sain.  The  person  who  purports to reply is Saraswati’s mother and the person who replied  to  her  was  Bhim  Sain’s  Personal  Assistant.  But  the  social  considerations prevailing in this  country and ethos  even in such  cases persist in determining the respective attitudes. That apart, as  we said earlier, the negotiations for marriage held in Saraswati’s  sister’s house have all the appearance of a business transaction. In  these  circumstances  that  portion  of  the  statement  of  the  law  in  Halsbury which refers to the presumption of the exercise of undue  influence in the case of a man to a woman to whom he is engaged to  be married would hardly be applicable to conditions in this country.  We have had occasion to point out the danger of such statements of  law enunciated and propounded for meeting the conditions existing  in the countries in which they are  applicable from being blindly  followed  in this  country without  a  critical  examination of  those  principles and their applicability to the conditions, social norms and  attitudes existing in this country. Often statements of law applicable  to foreign countries as stated in compilations and learned treatises  are cited without making a critical examination of those principles  

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in the background of the conditions that existed or exist in those  countries.  If we are  not wakeful and circumspect,  there is every  likelihood  of  their  being  simply  applied  to  cases  requiring  our  adjudication without consideration of the background and various  other conditions to which we have referred. On several occasions  merely because courts in foreign countries have taken a different  view  than  that  taken  by  our  courts  or  in  adjudicating  on  any  particular matter we were asked to reconsider those decisions or to  consider them for the first time and to adopt them as the law of this  country.    

No doubt an objective and rational deduction of a principle, if it  emerges  from a  decision  of  foreign  country,  rendered  on  pari  materia legislative provisions and which can be applicable to the  conditions prevailing in this country will assist the Court in arriving  at a proper conclusion. While we should seek light from whatever  source we can get, we should however guard against being blinded  by it.”

54. In view of the above discussion, we hold that 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.

55. The appeals are accordingly allowed, the impugned order is set aside and  

the writ petition filed by respondent No.1 is dismissed.

56. While parting with the case, we would like to make it clear that this Court  

has merely pronounced on the correctness of the view taken by the Delhi 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 legislature shall be free to consider the desirability and propriety of  

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deleting Section 377 IPC from the statute book or amend the same as per the  

suggestion made by the Attorney General.

..........................................................J. (G.S. SINGHVI)

...........................................................J. (SUDHANSU JYOTI MUKHOPADHAYA)

New Delhi December 11, 2013

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