SURESH KUMAR KOUSHAL & Anr. v. NAZ FOUNDATION & Ors.

A Empress vs. Khairati 1884 ILR 6 ALL 204; M. Nagaraj vs. Uo/ (2006) 8 SCC 212: 2006 (7) Suppl. SCR 336; Tractor Export vs. Tarapore .and Co. (1969) 3 SCC 562: 1970 (3) SCR 53; Jolly George vs. Bank of Cochin (1980) 2 SCC 360: 1980 (2) SCR 913; Gramaphone Company of India Ltd. vs. B Birendra Bahadur Pandey (1984) 2 SCC 534: 1984 (2) SCR 664; Ve/lore Citizens Welfare Forum vs. Uo/ (1996) 5 SCC 647: 1996 (5) Suppl. SCR 241; Vishaka and Ors. vs. State of Rajasthn and Ors. (1997) 6 SCC 241; 1997 (3) Suppl. C SCR 404; PUCL vs. Uol and Anr (1997) 1 SCC 301: 1996 (10 ) Suppl. SCR 321 PUCL vs. Uo/ and Anr (1997) 3 SCC 433: 1997 (1) SCR 923; Apparel Export Promotion Council vs. A.K. Chopra (1999) 1 SCC 759: 1999 (1) SCR 117; Pratap Singh vs. State of Jharkhand (2005) 3 SCC 551: 2005 (1) SCR 1019; PUCL vs. Uol and Anr. (2005) 2 SCC 436: 2005 (1) SCR 494; Entertainment Network (India) Ltd. vs. Super Cassette Industries (2008) 12 SCC 10; Smt. Se/vi vs. State of Karnataka (2010) 7 SCC 263: 2010 (5) SCR 381; Mithu vs. State of Punjab (1983) 2 SCC 277: 1983 (2) SCR E 690; State of Punjab vs. Dalbir Singh (2012) 2 SCALE 126; Rajesh Kumar vs. State through Govt of NCT of Delhi (2011) 11 SCALE 182; Francis Coralie Mullin; Prem Shankar Shukla vs. Delhi Administration (1980) 3 SCC 526: 1980 (3) SCR 855; Maharashtra University of Health Science and Ors. vs. F Satchikitsa Prasarak Manda/ and Ors. (2010) 3 SCC 786: 2010 (3) SCR 91; DK Basu vs. State of WB (1997) 1 SCC 416: 1996 (10 ) Suppl. SCR 284; Egan vs. Canada [1995] 2 SCR 513; Law vs. Canada (Minister of Employment and Immigration [1999] 1 SCR 497; AK Roy vs. Uol (1982) 1 G SCC 271: 1982 (2) SCR 272; KA Abbas vs. Uol and Anr. (1970) 2 SCC 760, Harish Chandra Gupta vs. State of UP AIR 1960 All 650; Subhash Chandra and Anr. vs. Delhi Subordinate Services Selection Board (2009) 15 SCC 458: 2009 (12) SCR 978; Kartar Singh vs. State of Punjab (1994) H · SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 129 3 SCC 569: 1994 (2) SCR 375; M Nagaraj vs. Uo/ (2006) 8 A SCC 212: 2006 (7) Suppl. SCR 336; Deepak Sibal vs. Punjab University (1989) 2 SCC 145: 1989 (1) SCR 689; Grace Jayamani vs. EP Peter AIR 1982 Kant. 46; Punjab Province vs. Dau/at Singh AIR 1946 PC 66; State of Bombay vs. Bombay Education Society [1955] SCR 568; Ram Krishna Da/mia vs. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538: 1959 SCR 2790 - cited. B Principles of Statutory Interpretation 13th Edn. 2012 - referred to: "The Indian Constitution - Cornerstone of A Nation", by Granville Austin - referred to. Case Law Reference : 1975 (3) SCR 946 referred to Para 10 539 U.S. 558 (2003) referred to Para 10 1999 (1) SA 6 referred to Para 10 [2001] 2 WLR 1389 referred to Para 14 319 US 624 (1943) l.R referred to Para 14 2007 (1) SCR 706 referred to Para 14 2007 (1) SCR 317 referred to Para 14 (1992) 2 sec 343 referred to Para 14 2007 (6) SCR 955 referred to Para 16;4 2008 (9) SCR 870 referred to Para 16.4 2008 (8) SCR 201 referred to Para 16.4 1950 SCR 88 referred to Para 16.8 c D E F G H 130 SUPREME COURT REPORTS [2013] 17 S.C.R. A 1970 (3) SCR 530 referred to Para 16.8 1978 (2) SCR 621 referred to Para 16.8 AIR 1925 286 (Sind) referred to Para 16.8 B (1961) 1 SCR 970 referred to Para 17.8 (2007) 4 MLJ 849 referred to Para 17.9 1951 SCR 621 Para 18.1 1998 (12) BCLR 1517 (CC) cited Para 19.9 1884 ILR 6 ALL 204 1981 (2) SCR 516 Para 19.9 Para 19.11 2006 (7) Suppl. SCR 336 cited Para 19.11 1970 (3) SCR 53 1980 (2) SCR 913 1984 (2) SCR 664 .c;ited Para 19.11 Para 19.11 Para 19.11 1996 (5) Suppl. SCR 241 Para 19.11 1997 (3) Suppl. SCR 404 cited Para 19.11 1996 (10) Suppl. SCR 321 cited Para 19.11 1997 (1) SCR 923 1999 (1) SCR 117 2005 (1) SCR 1019 2005 (1) SCR 494 (2008) 12 sec 1 o 2010 (5) SCR 381 Para 19.11 Para 19.11 Para 19.11 Para 19.11 Para 19.11 Para 19.11 c D E F G H SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 131 1983 (2) SCR 690 (2012) 2 SCALE 126 (2011) 11 SCALE 182 1980 (3) SCR 855 Para 19.13 A Para 19.13 Para 19.13 Para 19.14 B 2010 (3) SCR 91 cited, Para 19.14 2005 (1) Suppl. SCR 624 cited Para 19.14 1996 (10 ) Suppl. SCR 284 cited Para 19.14 [1995] 2 SCR 513 [1999] 1 SCR 497 1982 (2) SCR 272 (1970) 2 sec 760 AIR 1960 All 650· 2009 (12) SCR 978 1994 (2) SCR 375 Para 19.14 Para 19.14 Para 19.16 Para 19.16 Para 19.16 Para 19.16 Para 19.17 2006 (7) Sui>pl. SCR 336 cited Para 19.17 2007 (12) SCR 991 1989 (1) SCR 689 1992 (1) SCR 406 AIR 1982 Kant. 46 AIR 1946 PC 66 Para 19.17 Para 19.17 Para 19.18 Para 19.18 Para 19.19 G [1955] SCR 568 cited· Para 19.19 1959 SCR 279 followed Para 27 H c D E F 132 SUPREME COURT REPORTS [2013] 17 S.C.R. A 2003 (1) Suppl. SCR 638 relied on Para 27 1957 SCR 930 followed Para 29 (2013) 1 sec 745 relied on Para 30 1983 (2) SCR 165 followed Para 30 (1979) 2 sec 249 relied on Para 30 1981 (1) SCR 206 followed Para 30 1990 (1) Suppl. SCR 142 followed Para 30 AIR 1968 Guj 352 referred to Para 38 1991 Cri LJ 488 referred to Para 38 (1886) 1 Weir 382 referred to Para 38 AIR 1934 Lah 261 referred to Para 38 1969 Cri LJ 818 referred to Para 38 (1982) 3 sec 9 referred to Para 38 1985 (2) WLN 560 referred to Para 38 1992 (2) Crimes 455 referred to Para 38 1992 Cri LJ 488 referred to Para 38 (1999) 3 Gui LR 2456 referred to Para 38 2007 (6) SCR 955 relied on Para 39 2008 (8) SCR 201 relied on Para 39 1979 (2) SCR 476 followed Para 41 1982 (2) SCR 272 followed Para 44 1971 (2) SCR 446 relied on Para 44 B c D E F G H SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 133 (1964) 1 SCR 332 relied on Para 46 A 1975 (3) SCR 946 relied on Para 46 c2009) 9 sec 1 referred to Para 48 1998 (1) Suppl. SCR 723 referred to Para 49 B 1981 (2) SCR 516 referred to Para 50 2005 (1) Suppl. SCR 730 relied on Para 51 1973 (2) SCR 541 relied on Para 52 1952 SCR 597 · referred to Para 52 1975 (1) SCR 687 referred to Para 53 CIVIL APPELLATE JJJRISDICTION : Civil Appeal No. 10972 of 2013. From the Judgment and Order dated 02.07.2009 of the High Court of Delhi at New Delhi in WP No. 7455 of 2001. WITH c D E Civil Appeal No. 10974, 10986,10981, 10983, 10984, 10975, 10973, 10985, 10976 ' 10980, 10982, 10977, 10978, 10979 of 2013. F Mohan Jain, ASG, J.S. Attri, Anand Grover, T.S. Doabia, K. Radhakrishnan, Shyam Divan, Ashok. Desai, Siddarth Luthra, Amit Anand Tiwari, Kiran Suri, S.J. Amith, Huzefa Ahmadi, Garima Kapoor, Rishad A. Chaudhary, Mrigank Prabha~ar, Ejaz maqbool, Harshvir Pratap Sharma, K.S. Rana, G Manof V. George, Tehmina Arora, Alex Joseph, K. Gireesh Kumar, K.C. Ranjith, B.D. Das, Shilpa M. George, lrshad Hanif, Mushtaq Ahmad, Salish Aggarwal, Lakshmi Raman Singh, Sushil Kumar Jain, K. C. Dua, P.V. Yogeswaran, T.A. Khan, H 134 SUPREME COURT REPORTS [2013] 17 S.C.R. A D.K. Thakur, Deepak Jain, B.K. Prasad,, Subhash Sharma, Arvind Narrain, Nikhil Nayyar, Pritha Srikumar, Shivangi Rai, Mihir Samson, Amritananda Chakravorty, Tripti Tandon, Chanchal Kumar Ganguli, Dr. Chaudhary Shamsuddin Khan, Sunil Roy, B.V. Bairam Das, Abrahm M. Pattiyani, Manju A. B Pattiyani, Dr. Ashwani Bhardwaj, P. Ramesh Kumar, Vasurnan Khandelwal, Mayur Suresh, Jawahar Raja, Vaishnavi, (for Meenakshi Arora), Menka Guruswamy, Bipin Aspatwar, Raina Kapur, Praneet Ranjan, Brahmajeet Mishra, Raghwendra r Upadhyay, Dayan Krishnan, Siddharth Narrain, Gautam N.irayan, Raja! Kumar, Nikhil Menon, S.K. Sinha, Pukhramban "'1esh Kumar, Mohit Kumar Shah, Rajshekhar Rao, Karan L .d1iri, Arundhati Katju, Liz Mathew for the appearing Parties Ram Murti, Petitioner-In-Person, Purshottaman Mullali; D Respondent-In-Person. The Judgment of the Court was delivered by G.S. SINGHVI, J. 1. Leave granted. E F

2. These appeals are directed against order dated 2.7.2009 by which the Division Bench of the Delhi High Court allowed the writ petition filed by NAZ Foundation - respondent No.1 herein, by way of Public Interest Litigation (PIL) challenging the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC) in the following terms: "We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed G H SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 135 [G.S. SINGHVI, J ] not to be able to consent to a sexual act. This clarification A will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal B cases involving Section 377 IPC that have already attained finality."

3. The Background facts: c (i) Respondent No.1 is a N_on-Governmental Organisation (NGO) registered under the Societies Registration Act, 1860 which works in the field of HIV/AIDS intervention and prevention. Its work has focussed on targeting 'men who have sex with men' (MSM) or homosexuals or gays in consonance with the D integrationist policy. Alleging that its efforts have been severely impaired by the discriminatory attitudes exhibited by State authorities towards sexual minorities, MSM, lesbians and transgender individuals and that unless self respect and dignity is restored to these sexual minorities by doing away with discriminatory laws such as Section 377 IPC it will not be possible to prevent HIV/AIDS, NAZ Foundation filed WP(C) No. 7455/2001 before the Delhi High Court impleading the Government of NCT of Delhi; Commissioner of Police, Delhi; Delhi State Aids Control Society; National Aids Control Organisation (NACO) and Union of India through Ministry of Home Affairs and Ministry of Health & Family Welfare and prayed for grant of a declaration that Section 377 IPC to the extent it is applicable to and penalises sexual acts in private G between consenting adults is violative of Articles 14, 15, 19(1 )(a)-(d) and 21 of the Constitution. Respondent No.1 further prayed for grant of a permanent injunction restraining Government of NCT of Delhi and Commissioner of Police, Delhi E F H 136 SUPREME COURT REPORTS [2013] 17 S.C.R. A from enforcing the provisions of Section 377 IPC in respect of sexual acts in private between consenting adults. D (ii) Respondent No.1 pleaded that the thrust of Section 377 IPC is to penalise sexual acts which are "against the order of B nature"; that the provision is based on traditional Judeo Christian moral and ethical standards and is being used to legitimise discrimination against sexual minorities; that Section 377 IPC does not enjoy justification in contemporary Indian society and that the section's historic and moral underpinning C do not resonate with the historically held values in Indian society concerning sexual relations. Respondent No.1 relied upon 172nd Report of the Law Commission which had recommended deletion of Section 377 and pleaded that notwithstanding the recent prosecutorial use of Section 377 IPC, the same is detrimental to people's lives and an impediment to public health due to its direct impact on the lives of homosexuals; that the section serves as a weapon for police abuse in the form of detention, questioning, extortion, harassment, forced sex, payment of hush money; that the E section perpetuates negative and discriminatory beliefs towards same sex relations and sexual minorities in general; and that as a result of that it drives gay men and MSM and sexual minorities generally underground which cripples HIV/ F AIDS prevention methods. According to respondent No.1, Section 377 is used predominantly against homosexual conduct as it criminalises activity practiced more often by men or women who are homosexually active. The evidence that refutes the assumption that non-procreative sexual acts are G unnatural includes socio-scientific and anthropological evidence and also the natural presence of homosexuality in society at large. (iii) That private, consensual sexual relations are protected H SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 137 [G.S. SINGHVI, J.] under the right to liberty under Article 21 under the privacy and dignity claim. It was further pleaded that Section 377 IPC is not a valid law because there exists no compelling State interest to justify the curtailment of an important fundamental freedom; that Section 377 IPC insofar as it criminalises consensual, non procreative sexual relations is unreasonable and arbitrary and therefore violative of Article 14. A B (iv) Another plea taken by respondent No.1 was that Section 377 creates a classification between "natural" (penile vaginal) and "unnatural" (penile-non-vaginal) penetrative sexual C acts. The legislative objective of penalising unnatural acts has no .rational nexus with the classification between natural (procreative) and unnatural (non-procreative) sexual acts and is thus violative of Article 14. D

4. By an order dated 2.9.2004, the Division Bench of the High Court dismissed the writ petition by observing that no cause of action has accrued to respondent No.1 and purely academic issues cannot be examined by the Court. The review petition filed by respondent No.1 was also dismissed by the High Court vide order dated 3.11.2004.

5. Respondent No.1 challenged both the orders in SLP (C) Nos. 7217-7218/2005, which were converted to Civil Appeal No. 952/2006. This Court allowed the appeal vide order dated 3.2.2006 and remitted the writ petition for fresh decision by the High Court. The relevant portions of that order are reproduced below: E F "The challenge in the writ petition before the High Court G was to the constitutional validity of Section 377 of the Indian Penal Code, 1860. The High Court, without examining that issue, dismissed the writ petition by the impugned order observing that there is no case of action H 138 SUPREME COURT REPORTS [2013] 17 S.C.R. A B c D in favour of the appellant as the petition cannot be filed to test the validity of the Legislation and, therefore, it cannot be entertained to examine the academic challenge to the constitutionality of the provision. The learned Additional Solicitor General. if we may say so, rightly submits that the matter requires examination and is not of a nature which ought to have been dismissed on the ground afore-stated. We may, however, note that the appeal is being strenuously opposed by Respondent No.6. We are, however. not examining the issue on merits but are of the view that the matter does require consideration and is not of a nature which could have been dismissed on the ground afore-stated. In this view, we set aside the impugned judgment and order of the High Court and remit Writ Petition (C) No. 7 455 of 2001 for its fresh decision by the High Court."

6. NACO and the Health Ministry had filed counter in the form of an affidavit of Shri M.L. Soni, Under Secretary to the E Government of India, Ministry of Health & Family Welfare, National AIDS Control Organisation. He outlined the strategy adopted by NACO for prevention and control of HIV/AIDS in India which includes identification of high risk groups and the provision of necessary tools and information for protection and F medical care. The deponent averred that National Sentinel Surveillance Data 2005 estimated that HIV prevalence in "men who have sex with men" (MSM) is 8% while in general population it is lesser than 1 %. The MSM population is G estimated at 25 lacs as of January 2006. Shri Soni also stated that NACO has developed programmes for undertaking targeted interventions among MSM population and that for prevention of HIV/AIDS there is a need for an enabling environment where people indulging in risky behaviour may be H SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 139 [G.S. SINGHVI, J.] encouraged not to conceal information so that they are A provided with access to NACO services.

7. On behalf of the Ministry of Home Affairs, Government of India, Shri Venu Gopal, Director (Judicial) filed an affidavit and pleaded that Section 377 does not suffer from any B constitutional infirmity. Shri Venu .Gopal further pleaded that an unlawful act cannot be rendered legitimate because the person to whose detriment it acts consents to it; that Section 377 has been applied only on complaint of a victim and there are no instances of arbitrary use or application in situations where the C terms of the section do not naturally extend to Section 377 IPC; that Section 377 IPC is not violative of Articles 14 and 21 of the Constitution. According to Shri Venu Gopal, Section 377 IPC provides a punishment for unnatural sexual offences, carnal intercourse against the order of nature and does not make any D distinction between procreative and non-procreative sex.

8. Joint Action Council Kannur and Shri B.P. Singhal, who were allowed to act as interveners, opposed the prayer made in the writ petition and supported the stand taken by the E Government. Another intervener, i.e., Voices Against 377, supported the prayer of respondent No.1 that Section 377 should be struck down on the ground of unconstitutionality.

9. The Division Bench of the High <;ourt extensively F considered the contentions of the parties and declared that Section 377, insofar as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14 and 15 of the Constitution. While dealing with the question relating to violation of Article 21, the High Court outlined the enlarged scope of the G right to life and liberty which also includes right to protection of one's dignity, autonomy and privacy, the Division Bench referred to Indian and foreign judgements, the literature and H 140 SUPREME COURT REPORTS [2013) 17 S.C.R. A international understanding (Yogyakarta Principles) relating to sexuality as a form of identity and the global trends in the protection of privacy and dignity rights of homosexuals and held: 'The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person's dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 I PC denies a gay person a right to full person hood which is implicit in notion of life under Article 21 of the Constitution. The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The Government of India estimates the MSM number at a~ound 25 lacs. The number of lesbians and transgender is said to be several lacs as well. This vast majority (borrowing the language of the South African Constitutional Court) is denied "moral full citizenship". Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual se)<ual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in "The Indian Constitution - Cornerstone B c D E F G H SURESH KUMAR KOUSHAL v. NAZ FOUNDATION [G.S. SINGHVI, J.] 141 of A Nation", "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". In the words of Justice V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional armour. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen. A 8 A number of documents, affidavits and authoritative reports of independent agencies and even judgments of various courts have been brought on record to demonstrate the C widespread abuse of Section 377 IPC for brutalizing MSM and gay community persons, some of them of very recent vintage. If the penal clause is not being enforced against homosexuals engaged in consensual acts within privacy, it only implies that this provision is not deemed essential for the protection of morals or public health vis-a-vis said section of society. The provision, from this perspective, should fail the "reasonableness" test." D

10. The High Court discussed the question whether morality can be a ground for imposing restriction on fundamental rights, referred to the judgments in Gobind v. State of Madhya Pradesh and another (1975) 2 SCC 148, Lawrence v. Texas 539 U.S. 558 (2003), Dudgeon v. UK, European Court of Human Rights Application No. 7525/1976, Norris v. Republic of Ireland, European Court of Human Rights Application No. 10581/1983, The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, South African Constitutional Court 1999 (1) SA 6, the words of Dr. Ambedkar quoting Grotius while moving the Draft Constitution, Granville Austin in his treatise "The Indian Constitution - Cornerstone of A Nation" ' the Wolfenden Committee Report, 172nd Law Commission of India Report, the address of the Solicitor General of India before United Nations Human Rights Council, the opinion of Justice E F G H 142 SUPREME COURT REPORTS (2013] 17 S.C.R. A Michael Kirby, former Judge of the Australian High Court and observed: "Thus popular morality or public· disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of "morality" that can pass the test of compelling state interest, it must be "constitutional" morality and not public morality. The argument of the learned ASG that public morality of homosexual conduct might open floodgates of delinquent behaviour is not founded upon any subsiantive material, even from such jurisdictions where sodomy laws have been abolished. Insofar as basis of this argument is concerned, as pointed out by Wolfenden Committee, it is often no more than the expression of revulsion against what is regarded as unnatural, sinful or disgusting. Moral indignation, howsoever strong, is not a valid basis for overriding individuals' fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view. In Indian context, the latest report (172nd) of Law Commission on the subject instead shows heightened realization about urgent need to follow global trends on the issue of sexual offences. In fact, the admitted case of Union of India that Section 377 IPC has generally been used in· cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalization of adult same sex conduct does not serve any public interest. The compelling state interest rather demands that public health B c D E F G H SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 143 [G.S. SINGHVI, J ] measures are strengthened by de-criminalization of such A activity, so that they can be identified and better focused upon. For the above reasons we are unable to accept the stand of the Union of India that there is a need for retention of B Section 377 IPC to cover consensual sexual acts between adults in private on the ground of public morality."

11. The High Court then considered the plea of respondent No.1 that Section 377 is violative of Article 14 of the c Constitution, referred to the tests of permissible classification as also the requirements of reasonableness ~nd non arbitrariness as laid down by this Court and held that the classification created by Section 377 IPC does not bear any rational nexus to the objective sought to be achieved. The D observations made by the High Court on this issue are extracted below: "It is clear that Section '377 IPC, whatever its present pragmatic application, was not enacted keeping in mind E instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a conception of sexual morality specific to Victorian era drawing on notions of carnality and sinfulness. In any way, the legislative object of protecting women and children has no bearing in regard to F consensual sexual acts between adults in private. The second legislative purpose elucidated is that Section 377 IPC serves the cause of public health by criminalizing the homosexual behaviour. As already held, this purported legislative purpose is in complete contrast to the G averments in NACO's affidavit. NACO has specifically stated that enforcement of Section 377 IPC adversely contributes to pushing the infliction underground, make H 144 SUPREME COURT REPORTS [2013] 17 S.C.R. A B c D E risky sexual practices go unnoticed and unaddressed. Section 377 JPC thus hampers HIV/AIDS prevention efforts. Lastly, as held earlier, it is not within the constitutional competence of the State to invade the privacy of citizen's lives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalization of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable. The state interest "must be legitimate and relevant" for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affect~ the rights and interests of homosexuals and deeply impairs their dignity."

12. The High Court took note of the Declaration of Principles of Equality issued by the Equal Rights Trust in April, F 2008. It referred to the judgments in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, Lawrence v. Texas, Romer v Evans, Vriend v. Alberta and held: "Section 377 IPC is facially neutral and it apparently targets not identities but acts, but in its operation it does end up unfairly targeting a particular community. The fact is that these sexual acts which are criminalised are associated· more closely with one class of persons, namely, the homosexuals as a class. Section 377 IPC has the effect G H SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 145 [GS. SINGHVI, J.) A o.f viewing all gay men as criminals. When every1hing associated with homosexuality is treated as bent, queer, repugnant. the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that_a significant group of the population is, because of its sexual nonconformity, persecuted, marginalised and turned in on itself. [Sacl')s, J. in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, para C 108]. B

13. The High Court also discussed the case of Anuj Garg v. Hotel Association of India in detail and made reference to the principles of strict scrutiny and proportionality review as borrowed from the jurisprudence of the US Supreme Court, the Canadian and European Courts and proceeded to observe: "On a harmoniou~ construction of the two judgments, the Supreme Court must be interpreted to have laid down that the principle of 'strict scrutiny' would not apply to affirmative action under Article 15(5) but a measure that disadvantages a vulnerable group defined on the basis of a ct:iaracteristic that relates to personal autonomy must be subject to strict scrutiny. Thus personal autonomy is inherent in the grounds mentioned in Artide 15. The grounds that are not specified in ArtiCle 15 but are analogous to those specified therein, will be those which have the potential to impair the personal autonomy of an individual. This view was earlier indicated in Indra Sawhney v. Union of India, (1992) Supp. 3 SCC 217 .... As held in Anuj Garg, if a law discriminates on any of the D E F G H 146 SUPREME COURT REPORTS [2013) 17 S.C.R. prohibited grounds, it needs to be tested not m~rely against "reasonableness" under Article 14 but be subject to "strict scrutiny". The impugned provision in Section 377 IPC criminalises the acts c:if sexual minorities particularly men who have sex with men and gay men. It disproportionately impacts them solely on the basis of their sexual orientation. The provision runs counter to ihe constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. Section 377 IPC in its application to sexual acts of consenting adults in privacy discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited ground of sex. A provision of law branding one section of people as criminal bas~d wholll( on the State's moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review. A constitutional provision must be construed, not in ·a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains· flexible enough to meet the newly emerging problems. [Francis Coralie Mullin v. Union Territory of Delhi (1981) 1 SCC 608, Para 6 of SCC)."

14. Finally, the High Court elaborated upon the scope of the Court's power to declare a statutory provision invalid, referred to the judgments in Stde of Madras v. V. G. Row, R. (Alconbury Ltd.) v. Environment Secretary, [2001) 2 WLR 1389, West Virginia State Board of Education_ v. Barnette, 319 US 624 (1943), l.R. Coelho (Dead) by LRs v. State of Tamil Nadu & Ors., (2007) 2 SCC 1 and Raja Ram Pal v. Hon'ble A B c D E F G H SURESH KUMAR KOUSHAL v. NAZ FOUNDATION 147 [G.S. SINGHVI, J.]