By – Illa Dwivedi

In the Supreme Court of India



Section 377 OF IPC  deals with the punishment for people who voluntarily has carnal intercourse against the order of nature with any man, woman or animal. Punishment involves imprisonment for life, imprisonment for some time which may extend to ten years, and also be liable for a fine. Sec 377 of the British colonial penal code criminalized all sexual acts against the order of nature. This section was used for prosecuting people involved in the sexual act along with homosexual activities.

Suresh Kumar Kaushal v. Naz Foundation is a case in which 2 judge bench of Supreme Court which consists of Justice G. S. Singhvi and S. J. Mukhopadhaya turned over the Delhi high courts judgment of Naz foundation v govt. of NCT of Delhi and reinstated sec 377 of the IPC.


Suresh Kumar Kaushal v Naz foundation case is concerned with the topic of LGBT rights which has been a very heated topic for discussion and debate  .the Delhi high court passed a judgment in favour of LGBT people in 2009 in the landmark judgment of Naz Foundation v. Govt. Of NCT Delhi which declares sec 377 of IPC unconstitutional and said that sec 377 is violative of Articles 14,15 and 21 of the constitution of India and allowing consensual sexual activity between 2 homosexuals above 18 years of age.  This leads to the ending of around 100 years of criminalization and oppression.

In the Suresh Kumar Kaushal v Naz foundation case supreme court struck down the Delhi high courts decision in the Naz Foundation case.

 The case deals with the constitutionality of sec 377of IPC which criminalizes sexual activity against the order of nature that criminalizes any sexual activity other than the heterosexual

Homosexuality until very recently was considered to be an abnormality or aberrance and for this reason, LGBT people were subjected to torture, harassment to cure them of it.

A draft of the penal code was prepared during the British administration which dealt with unnatural sexual offences which were later incorporated into sec 377 as a part of IPC under offences concerning to human body and unnatural offences.

 The legal definition of this section reveals that consent is no defence under this section and no qualification concerning age is made in this sec although that is there for other crimes concerning the body and human life under the IPC.


  • Naz Foundation is an NGO that works in the field of prevention and intervention of HIV/AIDS. Its work focuses on targeting homosexuals or gays in consonance with the integrationist policy.
  • Asserting that its efforts have been severely harmed by the discriminatory attitude exhibited by the state authorities towards the LGBT community people and it is not possible to prevent HIV /AIDS unless the dignity of the LGBT people is restored by doing  away the  discriminatory laws like sec 377of IPC.
  • Naz foundation filed a writ petition before the Delhi high court and prayed for a grant of a declaration that sec 377 IPC to the extent  it applies to and penalizes sexual acts in private between consenting adults is violative of Article 14, 15,19(1)(a)-(d) and 21 of the constitution of India.


  • The case concerns with the constitutionality of sec 377 of IPC.
  • Sec 377 created an offence of voluntarily having carnal intercourse “against the order of the nature” with any man , woman ,or animal punishable by imprisonment or a fine .
  • In 2001 Naz foundation field a writ petition before Delhi  High Court seeking a declaration that sec377 to extent that it penalized sexual acts in private between consenting adults violated the Indian constitution specifically sec 14 , 15 , 19(1)(a)-(d) and 21.
  • Naz foundation argued that as private consensual relations were protected under article 21of constitution, sec 377 was invalid as there was no compelling state interest to justify the curtailment of fundamental rights .
  • Naz foundation also argued that sec 377 violated article 14 of the constitution of India .
  • In 2004 high court dismissed the writ petition on the ground that only purely academic issues had been submitted which could not be examined by the court.
  • In its 2009 decision, the Delhi high court decided that the sec 377 of the IPC disregarded various fundamental rights , including article 14 , 15 and 21 . The  said decision was appealed against in the supreme court of India in Suresh Kumar Kaushal v. Naz foundation and it was held the Delhi high court was wrong in reading down the sec to allow consensual homosexual activities between two adults of same-sex.


The major issues that emerged before the court for its attention and contemplation involved the violation of Fundamental rights given under article 14, article 15 and article 21 of the Indian constitution.

  • Whether section 377 violates any of the provisions related to part 3 (sec 12 to 35) fundamental rights of constitution  of India and therefore it is constitutionally valid or invalid ?
  • Whether section 377 , in so far criminalizes consensual sexual activity of two adults of same-sex in private , is violating article 21 of Indian constitution which guarantees right to life and personal liberty ?
  • Whether or not the high court was justified in entertaining the challenge to section 377 ?


Appellants argument:-

  • A severe error was committed by the high court by declaring section 377to violate articles 14,15, and 21of the constitution as it ignores the lack of fundamental facts in the respondent’s writ which would be essential for pronouncing the constitutionality of any statutory provision. The documentary evidence supplied in its place was not a basis for finding that homosexuals were singled out for discriminatory treatment by the law.
  • The appellant also argued that the data presented was built and deceitful. And the statistical incorporate by respondents in its petition were insufficient for finding that section 377 adversely affect the control of HIV AIDS and decriminalization of sec377 would decrease the no. .
  • Section 377 of IPC is gender-neutral and covers voluntary acts of carnal intercourse irrespective of gender committing the act. As no specific class is targeted by the law, no classification is being made therefore inducing the decision of the high court that it offended article 14 to be without basis.
  •  Sec 377 on the force of it does not mention any particular group of people or gender and hence is not violative of articles 14,15 and 21 of the constitution of India.
  • The right to privacy does not include the right to commit any offense so sec 377 does not violate the right to privacy and dignity under Article 21.
  • If the ordinance were approved, India’s social structure and the institution of marriage would be detrimentally affected and it would cause young people to become temperate towards homosexual activities.
  • Courts by their very own nature should not undertake the task of legislating which should be left to parliament.  The high court was unsure whether it was serving the law or reading it down and as long as the law is on the statute book there is a constitutional presumption in its Favor. Whether a law is moral or immoral is a matter that should be left to parliament to decide.

Respondents argument:-

  • Sec 377 is based on traditional Judeo-Christian morals and ethical standards and is being used to legitimize discrimination against LGBT.
  • Sec 377 targets the LGBT community by criminalizing closely held personal characteristics such as sexual orientation. Sexual rights and sexuality are human rights guaranteed under article 21. Sec 377 deprives LGBT of their  full moral citizenship.
  • Sec 377 is so far so it criminalizes sexual activities between two adults of same-sex or heterosexual penile no vaginal sexual intercourse between consenting adults is a violation of articles 14,15and 21 of the constitution of India.
  • Sexual intimacy  is a core aspect of human experience and criminalizing sexual acts engaged in by homosexual people is the denial of this human experience while the same is allowed to heterosexuals.
  • Criminalization increase stigma and discrimination for LGBT people and it acts as a barrier to HIV prevention programs.
  • Sec 377 is impermissibly broad, assigns policymaking powers to the police, and results in the harassment and abuse of the rights of the LGBT.
  • The difference between obscene acts in public and private is acknowledged in sec 294. It should be examined in light of the Constitutional provisions which comprises the right to be let alone.


Section 377 of IPC:-

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

Section 294 of IPC:-  

Obscene acts and songs.—Whoever, to the annoyance of others—

  • does any obscene act in any public place, or
  • sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

Article 14 of the Indian constitution:-

Article 14 of the Constitution of India is as under: “the State shall not deny the  right to equality before the law or the equal protection of the laws within the territory of India.”

Article 15 of the Indian constitution:-

The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.

No citizen shall, on the 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 public entertainment; 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 the general public.

Article 19 of the Indian constitution:-

It states that – “everyone has the right to freedom of opinion and expression; this right shall include freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Article 21 of the Indian constitution:-

It states that – no person shall be deprived of his life or personal liberty except according to procedure established by the law.


The panel of 2 judges of the Supreme Court deciding the case allowed the appeal and overturned the Delhi high courts judgment of the Naz Foundation case.

The supreme court ultimately found that sec 377of IPC does not violate the Constitution of India and dismissed the petition filed by the respondent.

The supreme court held that sec 377 is not violative of articles 14,15and 21 of the Constitution and that carnal intercourse means unnatural lust ought to be punished.

 The supreme court states that a minuscule fraction of countries population constitutes LGBT and  Delhi high court had inaccurately relied on International precedents in its distress to protect the rights of LGBT community peoples.

Justice Sanghvi said that as sec 377 is a pre Constitutional legislation and if there were any violation of rights guaranteed under part 3 of the Constitution parliament would have noticed that and repealed the sec 377 long ago.

Supreme Court held that sec 377 of the IPC does not suffer from any constitutional infirmary and left the competent legislature to assess the desirability and legitimacy of deleting the sec from the statute book or altering the same to allow the sensual sexual activity between 2 adults of the same sex.


The two judges bench of the Supreme court upheld the constitutional validity of Sec 377 of the Indian penal code that makes the consensual sexual act a punishable offence. The court held that those who indulge in carnal intercourse. The court held that those who indulge in carnal intercourse in the regular course and those who indulge in carnal intercourse against the order of nature Constitute different Categories and the people falling under the latter category cannot claim that the sec 377 of IPC suffers from corruption of arbitrariness and unfair division.  In this case, the supreme court recriminalized sexual intercourse against the order of mature. Both judges however noted that the Parliament should debate and decide on the matter. A bench of justices upheld the constitutional validity of Section 377 of the Indian Penal Code that makes anal sex a punishable offence.

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