Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. - A Case on Section 377 IPC

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This article is related to the case of Suresh Kumar Koushal and another v. Naz Foundation and Others[1]. I will mention the various aspects discussed in this case relating to section 377 of the Indian Penal Code. I have divided this exercise into five parts.

1. Arguments for Section 377 ofthe Indian Penal Code

2. Arguments against Section 377of the Indian Penal Code

3. Presumption ofConstitutionality

4. Concluding Remarks

5. Court's Verdict
6. Opinion

Arguments for Section 377 of the Indian Penal Code

1. The appellants said 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 377 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.

2. The appellants 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 also argued that Section 377 IPC does not violate the right to privacy and dignity guaranteed under Article 21 of the Constitution.

3. It was further said 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.

4. Black’s Law Dictionary was referred 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. According to the appellants, 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.

5. It was 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. It was emphasized that mere possibility of abuse of any particular provision cannot be a ground for declaring it unconstitutional.

To be continued…..

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[1] CIVIL APPEAL NO.10972 OF 2013.