HomeSuresh Kumar Koushal and Ors v. Naz Foundation and Ors (2014) 1 SCC 1

Facts

An NGO which works for the prevention of HIV/AIDs noticed that the authorities of the State were discriminatory towards sexual minorities and unless provisions like Section 377 are done away with, these minorities would never get to live a dignified life, which is something that the constitution guarantees.

Issue

Whether consensual sexual intercourse between two individuals, irrespective of gender be considered a crime solely because it is considered ‘unnatural’ by a large part of the society?

Rule

Section 377 IPC

Analysis

The court goes into the definition of ‘nature’ in order to further analyse what constitutes as “against the order of nature” under Section 377 IPC. The Court pointed out that the section is not directed to criminalize identities or persons based on their orientation, it just criminalizes certain acts to regulate certain sexual conduct. Moreover, the Court observed that the LGBTQ community constitute a very small part of India’s population and since there have been very few prosecutions, there is no need to hold Section 377 IPC ultra vires and decriminalize it. The Court also says that just because there has been misuse in the form of blackmail and harassment, it does not by that very fact become a reason for striking down the provision. The Court says that that can be a reason to modify the provision but not decriminalize it by removing the section from the Code.

Conclusion

Based on the above analysis and also on its constitutional validity, the Court held that Section 377 is valid. However, the Court held that the desirability of it being a crime can be looked at by the Legislature.

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