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Supreme Court sets aside Delhi High Court judgment in Naz Foundation; Declares S.377 to be constitutional [Download Judgment]

Supreme Court sets aside Delhi High Court judgment in Naz Foundation; Declares S.377 to be constitutional [Download Judgment]

Murali Krishnan

The Supreme Court today, in Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors. (SLP (c) 15436/2009), declared Section 377 of the Indian Penal Code as constitutionally valid, setting aside a 2009 judgment of the Delhi High Court.

The Court held that Section 377 is not unconstitutional while stating that it would be open for the Parliament to consider scrapping the law.

In its 98 page judgment, the Court reasoned that,

“In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC 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, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature. This view was expressed as early as in 1973 in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20.”

It, therefore, held that

“Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”

Speaking to Bar & Bench, Senior Counsel Anand Grover, who had appeared for Naz Foundation, said that,

“ We are very disappointed. We believe the judgement is incorrect [but] we don’t expect much from the Parliament”.

The verdict has come nearly one and a half years after it was heard and reserved for judgment by a Division Bench comprising of Justices GS Singhvi and Justice SJ Mukopadhaya. The judgment was pronounced by Justice GS Singhvi in the Chief Justice’s court at 10.30 AM today. It was also Justice Singhvi’s last day at the Supreme Court.

The case which began in Delhi High Court in 2001, had initially been dismissed by the High Court on the ground of an absence of locus standi. Subsequently, on appeal to the Supreme Court on the limited issue of locus, the Supreme Court remanded the matter back to the High Court to be heard afresh. Thereafter, the High Court in a landmark judgment delivered in 2009 had struck down the constitutional validity of S. 377 insofar as it criminalised consensual homosexual acts between adults.

This celebrated and controversial judgment of the Delhi High Court was challenged in the Supreme Court in a batch of 15 petitions.

Download judgment in Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors.