Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Suresh Kumar Koushal and Anr. vs. NAZ Foundation and Ors.
AIR2014SC563; (2014)1SCC1; 2014CriLJ784
Hon’ble Judges/Coram: G.S. Singhvi and S.J. Mukhopadhaya, JJ.
Date of Decision: 11.12.2013
FACTS:-
Appeals in this case were 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) which held that Section 377 IPC is violative of Articles 21, 14 and 15 of the Constitution insofar it criminalises consensual sexual acts of adults in private.
ISSUE:-
- Whether Section 377 of IPC is constitutionally valid or not?
JUDGMENT:-
In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 Indian Penal Code violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.
Every legislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality. This is founded on the premise that the legislature, being a representative body of the people and accountable to them is aware of their needs and acts in their best interest within the confines of the Constitution. There is nothing to suggest that this principle would not apply to pre-Constitutional laws which have been adopted by the Parliament and used with or without amendment. If no amendment is made to a particular law it may represent a decision that the Legislature has taken to leave the law as it is and this decision is no different from a decision to amend and change the law or enact a new law. In light of this, both pre and post Constitutional laws are manifestations of the will of the people of India through the Parliament and are presumed to be constitutional.
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. It is further observed that 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 this regard the Court referred to various judgments and culled out the following principles:
- The High Court and Supreme Court of India are empowered to declare as void any law, whether enacted prior to the enactment of the Constitution or after. Such power can be exercised to the extent of inconsistency with the Constitution/contravention of Part III.
- There is a presumption of constitutionality in favour of all laws, including pre-Constitutional laws as the Parliament, in its capacity as the representative of the people, is deemed to act for the benefit of the people in light of their needs and the constraints of the Constitution.
- 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.
- 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.
Applying the afore-stated principles to the case in hand, it is deemed proper to observe that while the High Court and this Court are empowered to review the constitutionality of Section 377 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper 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 the understanding of character, scope, ambit and import. 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.
Now, in light of the plain meaning and legislative history of the section, the Court holds that Section 377 Indian Penal Code would apply irrespective of age and consent. It is relevant to mention here that the Section 377 Indian Penal Code 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. It is observed that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 Indian Penal Code ultra vires Articles 14 and 15 of the Constitution.
That apart, while reading down Section 377 Indian Penal Code, 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 Indian Penal Code and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
HELD:-
The Section 377 Indian Penal Code does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable
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