Criminal Law

Suresh Kumar Koushal v. Naz Foundation

(2014) 1 SCC 1

Facts

Section 377 IPC criminalised specified “carnal intercourse against the order of nature.”
In Naz Foundation, the Delhi High Court read the provision down so that it would not apply to consensual sexual acts between adults in private.
Various persons appealed to the Supreme Court.
The appellants defended Section 377 as constitutionally valid.
LGBTQ+ persons and rights organisations argued that criminalisation violated:
equality;
dignity;
privacy;
non-discrimination.
The Supreme Court reconsidered the Delhi High Court judgment.

Whether Section 377 was unconstitutional insofar as it criminalised consensual same-sex relations between adults.
Whether the Delhi High Court was justified in reading it down.
Whether limited enforcement or a small affected population weakened the constitutional challenge.

Legislation carries a presumption of constitutionality.
The Court in Koushal applied a narrow standard of review and stressed legislative power to amend criminal law.
It reasoned that the number of reported prosecutions was limited.
It treated LGBTQ+ persons as a “minuscule fraction” of the population.
It concluded that the available record did not establish sufficient constitutional invalidity.
These propositions were later expressly rejected by the Constitution Bench in Navtej Singh Johar.

The Court focused heavily on:
the age of the provision;
limited reported convictions;
Parliament’s failure to repeal it.
It held that Section 377 covered a range of conduct and was not facially directed only at LGBTQ+ persons.
The possibility of misuse was treated as insufficient to invalidate the law itself.
The Court therefore reversed the Delhi High Court and restored the provision’s application to consensual adult same-sex conduct.
The reasoning did not adequately address how the threat of prosecution itself:
stigmatised a class;
enabled harassment;
forced concealment of identity;
impaired healthcare and dignity.
The “minuscule fraction” reasoning treated the number of affected persons as relevant to whether rights deserved protection.
Later constitutional doctrine rejected this completely:
fundamental rights protect every individual;
numerical minority is not a justification for criminalisation;
sexual orientation is an intrinsic constitutional identity.
The case is therefore studied mainly as an overruled stage in the development of LGBTQ+ rights.

The Supreme Court reversed Naz Foundation and upheld Section 377.
It stated that Parliament remained free to amend or repeal the law.
This holding was expressly overruled in Navtej Singh Johar insofar as Section 377 applied to consensual sexual conduct between adults.
Use this case for: the now-overruled approach that deferred to Parliament and minimised the rights impact because relatively few persons were prosecuted.