DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW.

Suresh Kumar Kaushal vs. Naz Foundation: A Critical Analysis

Under the supervision of: Submitted by:

Dr. Shashank Shekhar Swarnim Pandey

Assistant Professor (Law) Section- B

Dr.RMLNLU Roll No.-157

Sem.-I
 ACKNOWLEDGEMENT:

This project is a result of dedicated effort.

It gives me immense pleasure to prepare this project report on “Suresh Kumar

Kaushal vs. Naz Foundation: A Critical Analysis”

I would like to thank our project guide, Prof. Shashank Shekhar, for
consultative help and constructive suggestion on the matter in this project.

I would also like to thank my parents and fellow mates who have helped me
in making this project a successful one.

Regards to all.

Swarnim Pandey.
CONTENTS:
 Introduction

 Facts of the case

 Issues

 Arguments and analysis

 Conclusion

 Bibliography
  INTRODUCTION

T.H Green said “……It is the business of the State to maintain conditions without
which a free exercise of the human faculties is impossible.” The Indian
Constitution is first and foremost a social document1. Fundamental Rights and
Directive Principles of State Policy are the conscience of the Indian Constitution as
pointed out by Granville Austin in his book “The Indian Constitution-Cornerstone
of a Nation”2. Fundamental Rights are in general, those rights of citizens or those
negative obligations on the part of the State not to encroach on individual liberty.
The idea of Fundamental Rights was first conceptualized in the Bill of Rights of
the American Constitution and has been adopted into the Indian one. The State, in
addition to obeying the Constitution’s negative orders not to interfere with the
liberties of the citizens must satisfy its commitment to ensure that the rights of the
citizens are not being infringed by the society. In this project, Article 14, Article
15, and Article 21 shall be dealt with, which envisage equality, anti-discrimination
on the grounds of sex and life and personal liberty respectively. The project
concerns itself with the topic of gay rights or to be more specific LGBT (Lesbians,
Gays, Bisexuals and Transgender) rights, which has been one of the themes of
heated discussion and debate across the globe. The Delhi High Court passed a
judgment in favor of the LGBTs in the year 2009 in the landmark judgment of NAZ
Foundation v Government of N.C.T Delhi3 (hereinafter referred to as the NAZ
Foundation case), declaring Section 377 of the Indian Penal Code which
criminalizes homosexuality in India to be unconstitutional and violative of Articles
14, 15 and 21 and read down the section, allowing consensual sexual activity
between two homosexuals above 18 years of age.
1
GRANVILLE AUSTIN, INDIAN CONSTITUTION-CORNERSTONE OF A NATION, 50

2
Ibid
3
( 2010) Cri LJ 94 (Delhi)
The matter went to appeal to the Supreme Court of India in Suresh Kumar Koushal
and another v NAZ Foundation and Others4 where the Supreme Court struck down
the decision by the High Court in the NAZ Foundation Case. This project deals
with the constitutionality of Section 377 of the Indian Penal Code which
criminalizes sexual activity ‘against the order of nature’. i.e. criminalizes any
sexual activity other than the heterosexual penile-vaginal.5 Homosexuality is the
sexual propensity for persons of one’s own sex. The cultural construction of
sexuality discredits any sexual activity that is ‘non beneficial’ of the male semen
Homosexuality is condemned and penalized because it leads to the loss of the
semen which holds the seed for procreation.6 Homosexuality, until very recently,
was considered to be an aberrance or abnormality and for this very reason gay
people were subjected to torture, discipline and even corrective rapes to cure them
of it. Legislative history of Section 377 suggests that homosexuality and sodomy as
a crime was first recorded or chronicled in Fleta 1920 in England and later in
Britton, 1300. Such acts later were penalized under the Buggery Act, 1553, which
prescribed death penalty by way of hanging for the perpetrators and it was re-
enacted by Queen Elizabeth I in the year 1563. The offence of sodomy was first
introduced in India through the Act for Improving the Administration of Criminal
Justice in the East Indies. In 1837, a Draft Penal Code was prepared where Clauses
361 and 362 dealt with ‘Unnatural sexual offences’ which were later incorporated
in Section 377 as a part of the Indian Penal Code under offences with respect to
human body and under a separate heading of ‘unnatural offences’ and reads as
follows7:

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.

4
CIVIL APPEAL 10972 OF 2013
5
( 2010) Cri LJ 94 (Delhi)
6
RUKMINI SEN, ‘Breaking Silences, Celebrating New Spaces: Mapping Elite Responses to the ‘Inclusive’
Judgment’ 2 NUJS Law Review 481 (2009)
7
CIVIL APPEAL 10972 OF 2013
Explanation – Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.

Legal elucidation of the section reveals that consent is no defense to an offence

under this section and no qualification with respect to age is made in the section
although that is there for other heinous crimes with respect to body and human life
under the Indian Penal Code.8

“If there is one constitutional tenet that can be said to be underlying theme of the
Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian
Constitution reflects this value deeply ingrained in Indian society, nurtured over
several generations… Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and non-discrimination. This was
the ‘spirit behind the Resolution’ of which Nehru spoke so passionately.”—Naz
Foundation v NCT, Delhi High Court, July 2009

In Koushal v Naz, the Supreme Court decides that the above paragraph is
constitutionally untenable. It holds that S. 377, IPC is constitutional, and that
homosexuality is a criminal offence in India. In so doing, it overturns a closely-
reasoned Delhi High Court judgment from 2009, which the state did not even
appeal. The Supreme Court tells us that our Constitution, whose Preamble
proclaims a commitment to equality and justice for all, whose Bill of Rights has
three specific Articles dedicated to equality and non-discrimination, nonetheless
relegates Indians to second-class citizenship on the basis of their sexual
orientation. And in so doing, it flies in the face of international law, the dicta of
respected human rights instruments such as the ICCPR and the Universal
Declaration of Human Rights, and puts India in the company of countries such as
Somalia, South Sudan, Yemen and Saudi Arabia. It also upholds a law that was
passed by a British colonial legislator seeking to enforce Victorian-era morality
upon a subject population that had no say in it. And it perversely tells a minority to
take the case for protecting its rights to the most majoritarian institution of
government, the Parliament.

8
(2010) Cri LJ 94 (Delhi)
All of which might be justifiable if it was even remotely supported by
constitutional reasons. It is not. The result is a travesty, and the reasoning is
farcical. Before getting into that, however, it’s important to clear up a fundamental
point: this judgment is likely to be presented—and discussed—as an issue of
judicial restraint and separation of powers, because it holds the matter ought to be
decided by Parliament. That, however, is a smokescreen for the real issue: does the
Constitution—in particular, Articles 14, 15 and 21—prohibit discrimination on the
basis of sexual orientation? If the Constitution does do so, then S. 377 is
unconstitutional, and there is no question of judicial restraint, and no space for
arguments that the legislative forum is the appropriate sphere for this. Article 13(2)
of the Constitution could not make this clearer:

“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.”
For example, if the Parliament made a law today that banned all newspapers from
reporting on political issues, no Court would ever hold that that was “a matter for
Parliament to decide.” They would strike it down for violating a Constitutional
right—Article 19(1)(a). The basic issue, therefore, is about the existence of a
constitutional right that protects homosexuals from discriminatory legislation. To
frame this as an issue of “restraint”, and argue that the Court was operating on the
principle of judicial restraint is deeply misleading.
The right at issue can be found in at least three articles.

“The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.” (Article 14)
“The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.” (Article 15)
“No person shall be deprived of his life or personal liberty except according to
procedure established by law.” (Article 21)
  FACTS OF THE CASE:

The NAZ Foundation (India) Trust (NI) is a New Delhi based NGO that has been
working on HIV/AIDS and sexual health from 1994 onwards. They filed a writ
petition in the Delhi High Court challenging the constitutional validity of Section
377 of the Indian Penal Code. This section penalizes unlawful sexual acts ‘against
the order of nature’ which has the effect of criminalizing even consensual sexual
intercourse between two adults of the same sex or even of the opposite sex
indulging in penile non-vaginal sexual activities. The petitioner contended that
Section 377 encroached upon Articles 14, 15, 19 and 21 of the Constitution of
India and also that the section ought not to criminalise consensual penile non
vaginal sex between two consenting adults of the same sex. In a milestone
judgment conveyed on July 2, 2009, the Delhi High Court decided that Section 377
of the Indian Penal Code, 1860 disregarded various fundamental rights, including
the right to privacy and right to dignity under the fundamental right to life and
liberty (Article 21), the right to equality (Article 14), and forbiddance of separation
on grounds of sex (Article 15). The said decision was appealed against in the
Supreme Court of India in the Suresh Kumar Koushal and another v NAZ
Foundation and Others case and it was held that the Delhi High Court was wrong
in its findings and was also wrong in reading down the section to allow consensual
homosexual activities between two adults of the same sex.9

 ISSUES:

9
CIVIL APPEAL 10972 OF 2013
The major issues that emerged before the Court for its attention and consideration
involved the violation of Fundamental Rights under Article 14, 15 and 21 of the
Constitution of India. In this paper, the author will be dealing with two of the
major issues.

1. Whether Section 377 violates any of the provisions of the Part III of the
Constitution of India and therefore whether it is constitutionally valid or not?

2. Whether Section 377, in so far it criminalizes consensual sexual activity of two

adults of the same sex in private, is violating Article 21(Right to life and personal
liberty) guaranteed by the Constitution of India?

 ARGUMENTS AND ANALYSIS:

NAZ Foundation case is an earnest emphasis of the vision of India’s founding

fathers to build an ‘inclusive’ and ‘tolerant’ republic. The decision is a reminder
that the Indian Constitution is a vibrant, living document and its wide insurances
must be alterably translated to include new circumstances and tests.10 It was argued
by the Respondents that Section 377 is based on traditional Judeo-Christian moral
and ethical standards and is being used to legitimise discrimination against sexual
minorities, i.e. LGBTs. They also contended that the section is detrimental to
people’s lives and public health because of its direct impact on the lives of the
homosexuals and serves as a weapon for police abuse.11

It was further argued by the Respondents that Section 377, in so far as it

criminalizes consensual sexual activities between two adults of the same sex and
heterosexual penile non vaginal sexual intercourse between consenting adults is
violative of Articles 14, 15 and 21 of the Indian Constitution. With regard to the
first issue, the petitioners argued that Section 377, on the face of it, does not
mention or classify any particular group or gender and hence is not violative of
10
VIKRAM RAGHAVAN, ‘Navigating the Noteworthy and Nebulous in NAZ Foundation’ 2 NUJS Law Review
399 (2009)
11
CIVIL APPEAL 10972 OF 2013
Article 14 and 15 and 21 respectively. The Court accepted their arguments and
held that Section 377 is not violative of Articles 14, 15 and 21 and that carnal
intercourse, as intended and defined by the petitioners to mean unnatural lust ought
to be punished. Justice Singhvi also said that Section 377 is a pre-constitutional
legislation and if it were violative of any of the rights guaranteed under Part III,
then the Parliament would have noticed the same and repealed the section long
ago. Based on this reasoning, he declared the section to be constitutionally valid.
He also said that doctrine of severability and the practice of reading down a
particular section flows from the presumption of constitutionality and that in the
said case, the Delhi High Court’s decision to read down the section was wrong
because there is no part of the section that can be severed without affecting the
section as a whole which also happens to be the only law which governs cases of
paedophilia and tyke sexual abuses and assaults. So, the Supreme Court held that
Section 377 of the Indian Penal Code does not suffer from any constitutional
infirmity and left the matter to the competent legislature to consider the desirability
and legitimacy of deleting the Section from the statute book or altering the same to
allow consensual sexual activity between two adults of the same sex in private.

Article 21 guarantees us the right to life and protection of personal liberty. The
private, consensual sexual relations are protected under the right to personal liberty
under Article 21 under the privacy and dignity claim. While considering the issue
of Article 21, The High Court sketched out the broadened extent of the right to life
and liberty which also incorporates right to protection of one’s dignity, autonomy
and privacy, the Division Bench referred to Indian and foreign judgments, the
Yogyakarta Principles12 identifying with sexuality as a structure of personality and
the worldwide patterns in the assurance of security and nobility privileges of gay
people and held: “The sphere of privacy allows person to develop human relations
without interference from the outside community or from the State. The exercise of
autonomy enables an individual to attain fulfillment, grow in self-esteem, build
relationships of his or her own choice, and fulfill all legitimate goals that he/she
may set. In the Indian Constitution, the right to live with dignity and the right of

12
The Yogyakarta Principles are a set of principles on the application of international human rights law in relation to
sexual orientation and gender identity. The Principles affirm binding international legal standards with which all
States must comply. They promise a different future where all people born free and equal in dignity and rights can
fulfill that precious birthright.
privacy13 are recognised as dimensions of Article 21. Section 377 of IPC denies a
person’s dignity and criminalizes 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 denies a gay person the right to full personhood which is implicit in
notion of life under Article 21 of the Constitution.“14 In Maneka Gandhi v Union of
India15, the Court reiterated that the term ‘personal liberty’ is of “the widest
amplitude and it covers a variety of rights which go to constitute the personal
liberty of a man.” Sexual orientation and sexual activity is a matter of one’s
privacy.

In the same case, the court went on to explain the intention of the founding fathers
regarding regulation of Article 21 and said “Thus expanded and read for
interpretative purposes, Article 21 clearly brings out the implication, that the
Founding Fathers recognized the right of the State to deprive a person of his life or
personal liberty in accordance with fair, just and reasonable procedure
established by law.” But, in the above case, Section 377 is used arbitrarily and it
classifies between procreative sexual activities and non procreative sexual
activities which show no compelling State interest to make such a law to regulate
and deny such an important fundamental right.

Let us briefly recall the reasons that the Delhi High Court had given in its
judgment. Article 14 permits class legislation only if there is an intelligible
differentia between the classes, a rational nexus with the objective of the
legislation, and the constitutional validity of the objective itself. The State’s
reasons for retaining the law were health—it would prevent the spread of AIDS—
and enforcing public morality. The Delhi High Court found on fact that there was
no connection between homosexuality and public health (in fact, quite the
opposite), and it held that the only morality that the State was permitted to enforce
was found within the four corners of the Constitution - Constitutional morality,
derived from the text, the structure and the philosophy of the Constitution itself.
On Article 15, the Court held that “sexual orientation” was a protected category,
contained within the term “sex“. And on Article 21, the Court held that the right to
13
AIR 1963 SC 1295 and (1975) 2 SCC 148
14
( 2010) Cri LJ 94 (Delhi)
15
AIR 1978 SC 597
privacy—incontestably an aspect of personal liberty, as upheld by a string of
decisions—could only be restricted by showing a compelling state interest. Here,
the State had shown none.

What does the Supreme Court say about this? The answer is, very little. The core
of the reasoning of the Court is found in paragraphs 42 and 43:

“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 latter 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 IPC ultra vires Articles 14 and 15 of the
Constitution

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.”

First, the Court says—without an iota of evidence—that there are two classes of
persons—those who engage in sexual intercourse in the “ordinary course”, and
those who don’t. What is ordinary course? Presumably, heterosexuality. Why is
this ordinary course? Perhaps because there are more heterosexuals than
homosexuals around, although the Court gives no evidence for that. Well, there are
also more black-haired people in India than brown-haired people. Is sex with a
brown-haired person against the order of nature because it happens less often? But
forget that. Where is the rational nexus? What is the legitimate governmental
objective? Even if we accept that there is an intelligible differentia here, on what
basis do you criminalize—and thus deny equal protection of laws—to one class of
persons? The Court gives no answer. Alternatively, “ordinary sex” is penal-
vaginal, and every other kind of sex is “against the ordinary course of nature”.
Again, no evidence to back that claim up apart from the say-so of the judge. There
is only one possible justification, which the Learned Judge briefly cites before—
that in defining an offense, the Court is not indulging in class legislation at all, but
only in prohibiting action (presumably to get around Article 15), but here he
has already rejected that argument by admitting that there is class involved. And if
there is class involved, then the government needs to show rational nexus and
legitimate objective!

The Court then makes a truly bizarre observation, holding that because only 200
people have been prosecuted, there is no discrimination. Two
hundred people. Suppose the State randomly catches hold of 200 people and shoots
them dead. This, according to the learned Judge, would not be an Article 21
violation because, well, it’s just 200 people. Our Constitution does value human
life—but only when it’s more than 200 people. Remember that.

Notable is the Court’s blanket refusal to consider Article 15. If there is class
involved—and the Court admits there is—and if homosexuals necessarily engage
in sexual intercourse against the order of nature—then by criminalizing that act,
there is discrimination on the basis of sexual orientation. The question is whether
that attracts Article 15. Article 15 prohibits discrimination on a number of grounds:
religion, race, caste, sex and place of birth. With the possible and partial exception
of religion, what unites these features is that they are all essential aspects of any
individual’s private and public identity (by public personality, I mean a series of
labels used by the society to identify her and differentiate her from others) that she
is born into and is powerless to choose or change. To this we can add Article
16(2) (prohibition of discrimination in employment on similar categories); Article
17 (prohibition of untouchability—discrimination on the basis of birth);
and Article 18 (abolition of titles—advantages (a form of discrimination), normally
on the basis of birth). Let us—summarily—call this the “non-disrcimination
principle”.
Now considering Articles 19 and 25. Article 19 guarantees the freedom of speech
and expression, assembly, association, movement, residence and profession; each
of these freedoms, it can hardly be disputed, are fundamental for two reasons: first,
they are essential expressions of individual (and, for that matter, communitarian)
personality; in the words of Justice Kennedy in Planned Parenthood v Casey:

“At the heart of liberty is the right to define one’s own concept of existence, of
meaning, of the universe, and of the mystery of human life…. people have
organized intimate relationships and made choices that define their views of
themselves and their places in society.”

Secondly, as Dworkin puts it, these freedoms ensure that every citizen of the polity
is provided the opportunity to contribute towards shaping the moral, cultural and
political environment that she finds herself in—and that that, in turn, is the very
essence of government according equal respect and concern to all its citizens. To
this we add Article 25, that guarantees the freedom of conscience and religion (and
further, the entire scheme from Articles 26 to 30); and indeed, arguable the two
most important freedoms within this set (speech and conscience) are not limited by
public interest concerns. Let us summarily call this the “autonomy principle”.

We are now in a position to understand why not only the Delhi High Court’s
reading of “sexual orientation” into “sex” was not only correct, but
the only possible correct decision. Our Constitution is structurally committed to a
two-pronged principled attitude towards individuals: freedom in those matters that
are related to the most fundamental expression of one’s humanity and personality
(autonomy principle); and no discrimination on the basis of aspects of private and
public identity that a person is born with and into (non-discrimination principle).
And these principles stem not from any one provision, but a combination of
Articles 14, 15, 16, 17, 18, 19, 25 and 26 to 30.

Can anyone seriously deny that sexuality is integrally—and centrally—consistent

with both these principles? Constitutionally, therefore, there is no warrant for the
Supreme Court to interfere with the judgment of the Delhi High Court; a contrary
opinion would imply that our Constitution is committed to the non-discrimination
and respect principles (as discussed above)—but in an entirely insupportable,
capricious, arbitrary and unprincipled fashion, withholds that commitment from
homosexuals. That certainly cannot be the Constitution we live under, or the
Constitution to which we owe our allegiance.

And lastly, Article 21 and the right to privacy, expressly upheld in Gobind to
include family life, and in Kharak Singh to require a compelling State interest in
case of interference. Search in the judgment for an analysis of Article 21. You will
find none. This is not just bad constitutional law. This is no constitutional law.

 CONCLUSION:

Thus, consensual sexual activities between two adults of the same sex should not
be regulated by a law as it violates their Fundamental Rights and a person’s choice
of sexual accomplice is no business of the State to regulate on. Section 377 is
abused to brutalize the persons belonging to the gay community. Popular morality,
as distinct from constitutional morality as derived from constitutional values, is
based on shifting notions of right and wrong and as of today, a large chunk of elite
population is in favor of the LGBT rights and hence, this shows that the State is not
even going by the popular morality but by its own morality and if there is any type
of morality that can pass the test of compelling state interest, it should be
constitutional morality. Given that all these questions are unanswered, this
judgment is simply much too vague to be treated as binding law. It tells us nothing
about the operation of S. 377 and the implications of the rights involved. It does
not tell us what “against the order of nature” means. It does not allow citizens to
plan their lives around the criminal law with any degree of certitude. It cannot
avoid applying itself retrospectively. It leaves untouched arguments that it
would logically have to analyze to arrive at the decision it arrives at. And worst of
all, it contradicts itself. The Court tells us today that our Constitution guarantees all
citizens the equal protection of laws—but withholds that protection from
homosexuals. The Court tells us today that our Constitution prohibits
discrimination if you’re born a certain gender, or a certain caste, or a certain
religion—but not if you possess a certain sexual orientation. The Court tells us
today that we all have a right to privacy in our personal lives—but not in our
choice of whom to love. Is there any conceivable constitutional principle that
justifies this, the unbearable wrongness of Koushal v Naz Foundation?
Every once in a way, the highest Court in the land delivers a judgment that is both
constitutionally preposterous, and morally egregious. Dred Scott v Sanford, where
the American Supreme Court held that Blacks could never be citizens of the United
States is a famous example. Plessey v Ferguson, where it held that segregated
schools were constitutional, is another. In our own jurisdiction, Habeas Corpus,
holding that fundamental rights—including the right to life—were inoperative
during an Emergency, is a third. Yet we have seen that the arc of constitutional
history has bent towards justice and equal citizenship; Dred Scott,
Plessey and Habeas Corpus stand out as moments of deep national shame, blots on
the judicial record, examples par excellence of judges at their very worst. And they
have all been overruled. We can only hope that soon enough—whether by way of
review or legislative action— Kaushal v Naz will join them upon the rubbish-heap
of constitutional history.
In short, it is an utterly misconceived judgment, and must be reviewed.

 BIBLIOGRAPHY

 https://indiankanoon.org/doc/58730926/

 https://indconlawphil.wordpress.com/2013/12/12/koushal-v-naz-foundation-
picking-up-the-pieces-and-exploring-the-grounds-for-review/

 https://indconlawphil.wordpress.com/2013/11/30/indra-sarma-v-vkv-sarma-the-
supreme-court-on-live-in-relationships-and-gay-marriage/

 https://indconlawphil.wordpress.com/2014/10/04/foucault-rubenfeld-naz-
foundation-and-article-151/

 https://indconlawphil.wordpress.com/2015/08/27/sex-sexual-orientation-and-
the-courts/
 http://www.lawctopus.com/academike/suresh-kumar-koushal-vs-naz-
foundation-critical-analysis

 http://www.outlookindia.com/website/story/the-unbearable-wrongness-of-
koushal-vs-naz/288823