LexSURESH KUMAR KOUSHAL AND ANOTHER versus NAZ FOUNDATION AND OTHERS
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A B c [2013) 17 S.C.R. 116 SURESH KUMAR KOUSHAL AND ANOTHER v. NAZ FOUNDATION AND OTHERS (Civil Appeal N0.10972 of 2013) DECEMBER 11, 2013 [G.S. SINGHVI AND SUDHANSU JYOTI MUKHOPADHAYA, JJ.] Penal Code, 1860: s. 377 - Constitutional validity of - Whether suffers from the vice of arbitrariness and irrational classification and whether violative of Art. 21 - To the extent, it penalizes sexual acts in private between consenting adults - Held: s. 377 /PC D does not suffer from the vice of unconstitutionality - 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 - People falling in the later category cannot claim that s. 37.7 suffers from vice of E arbitrariness and irrational classification - s. 377 does not criminalise a particular people or identity or orientation but merely identifies certain acts which if committed would constitute an offence - The factual foundation in support of challenge to s. 377 is insufficient to record a finding that F homosexuals are subjected to discriminatory treatment - The facts of the case cannot be made sound basis for declaring s. 377 ultra vires the provisions of Arts. 14, 15 and 21 - Despite the verdict, liberty given to the competent legislature G to consider the desirability and propriety of deleting or amending s. 377 - Constitution of India, 1950 - Arts. 14, 15 and 21 - Universal Declaration of Human Rights (1948) - Article 12 - International Covenant of Civil and Political Rights and European Convention on Human Rights - Article 17. H 116 SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 117 s. 377 - Acts of carnal intercourse against the order of A nature - Determination of - Held: Such acts can be determined with reference to the act itself and the circumstances in which they are executed. s. 377 - Applicability of - Held: In the light of plain B meaning and legislative history of the provision, it would apply irrespective of age and consent. Constitutionalism: Presumption of constitutionality - Held: Every legislation enacted by Parliament or State Legislature carries with it presumption of constitutionality - The presumption is applicable to the pre-Constitutional as well as post- Constitutional laws - Constitution of India, 1950 - Article 13. Constitutionality of law - Determination of - Held: Declaration of law as unconstitutional, is one of the last resorts taken by the courts - The court would accept an interpretation which would be in favour of constitutionality - The courts would preferably put into service the principles of 'reading down' and 'reading into' the provision to make it effective, workable and to ensure the attainment of the object of the Act. Constitutional validity of a penal provision - Determination of - Held: Vagueness and arbitrariness go to the root of a provision and may render it unconstitutional - However, while analyzing a provision, the vagaries of language and prior application of the law must be kept in mind - Constitution of India, 1950 - Art. 14. Constitutional validity of a provision which purports to restrict the rights guaranteed under Art. 21 of the Constitution - Determination of - Held: The requirement of substantive due process has been read into the Constitution through a c D E F G H 118 SUPREME COURT REPORTS (2013] 17 S.C.R. A combined reading of Articles 14, 21 and 19 - 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 B order to fulfill this test, the law must not only be competently legislated but it must also be just, fair. and reasonable - Constitution of India, 1950 - Arts. 14, 19 and 21. Vires of a penal provision - Determination of - field: C Misuse of the provision by the police authorities etc. cannot be a ground to determine the vires of the provision - Penal Code, 1860 - s. 377. Judicial Review - Scope of - Power of judicial review D over legislations is plenary -. But the courts exercise self- · restraint keeping in mind importance of principle of separation of powers and value of democracy. E Doctrines/Principles: Doctrine of Severability - Applicability. Principle of presumption of constitutionality - Applicabil
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