Suresh Kumar Koushal v. Naz Foundation

Suresh Kumar Koushal and another v. NAZ Foundation and others is a 2013 case in which a 2 judge Supreme Court bench consisting of G. S. Singhvi and S. J. Mukhopadhaya overturned the Delhi High Court case Naz Foundation v. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code. The Supreme Court of India decided to revisit this judgement after several curative petitions were filed against it, in 2017.[1] Thereby in 2018, Navtej Singh Johar v. Union of India, a 5 judge bench of the Supreme Court overturned this judgement, decriminalizing homosexuality.[2] But portions of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain in force.[3]

Suresh Kumar Koushal v. Naz Foundation
CourtSupreme Court of India
Full case nameSuresh Kumar Koushal and another v NAZ Foundation and others
Decided11 December 2013
Citation(s)Civil Appeal No. 10972 OF 2013
Holding
Section 377 is constitutional; Naz Foundation v. Govt. of NCT of Delhi overturned upon appeal.
Overruled by
Navtej Singh Johar v. Union of India by Supreme Court of India
This case overturned a previous ruling
Naz Foundation v. Govt. of NCT of Delhi by High Court of Delhi

Decision
The judgement of the Supreme Court of India of 11 December 2013 did not find enough reason for portions of section 377 to be declared unconstitutional and overturned the Delhi High Court judgement

The judges stated that "a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders" and that the High Court had erroneously relied upon international precedents "in its anxiety to protect the so-called rights of LGBT persons". On 11 December 2013, the Supreme Court of India set aside the 2009 judgement given by the Delhi High Court stating that judicial intervention was not required in this issue. This in effect recriminalized sexual intercourse "against the order of nature". In its judgment the Supreme court bench of justices G. S. Singhvi and S. J. Mukhopadhaya stated —

"In view of the above discussion, we hold 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."[4]

The both judges however noted that the Parliament should debate and decide on the matter. A bench of justices upheld the constitutional validity of Section 377 of Indian Penal Code that makes anal sex a punishable offense.[5]

Responses

Days later and influenced by the Devyani Khobragade incident, former Finance Minister Yashwant Sinha called for the arrest of same-sex companions of US diplomats, citing the Supreme Court of India's recent upholding of Section 377 of the Indian Penal Code.[6][7] The recriminalization of gay sex comes under fire from World leaders. The United Nations human rights chief Navi Pillay[8] voiced her disappointment at the re-criminalization of consensual same-sex relationships in India, calling it "a significant step backwards" for the country. In the wake of Indian Supreme Court's ruling that gay sex is illegal, UN chief Ban Ki-moon[9] stressed on the need for equality and opposed any discrimination against lesbians, gays and bisexuals.[10]

Soon after the judgement, Sonia Gandhi, President of the then ruling Indian National Congress, asked Parliament to do away with section 377. Her son and Congress Party vice-President, Rahul Gandhi also wanted section-377 to go and supported gay rights.[11]

In July 2014, Minister of State for Home Kiren Rijiju in the BJP led Central government told the Lok Sabha in a written reply that a decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by the Supreme Court.[12] However, on 13 January 2015, BJP spokesperson Shaina NC, appearing on NDTV, stated, "We [BJP] are for decriminalizing homosexuality. That is the progressive way forward."[13]

Central government

The central government lead by Indian National Congress has filed a review petition on 21 December 2013. In its review petition the Centre said: "The judgment suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution." The IPC, when enacted in 1860, was justified; but with the passage of time it had become arbitrary and unreasonable, the petition added.[14] Naz Foundation has also filed a review petition against the Supreme Court order on Section 377.[15] On 28 January 2014 Supreme Court dismissed the review Petition filed by Central Government, NGO Naz Foundation and several others, against its 11 December verdict on Section 377 of IPC.[16][17]

Protest on social media

Actor Imran Khan took action in order to disabuse homophobic people from their mistaken notions of homosexuality in a satire video.[18] Many Mumbai film industry personalities such as Amitabh Bachchan, Aamir Khan, Celina Jaitley, Twinkle Khanna, John Abraham, Karan Johar, Farhan Akhtar, Riteish Deshmukh,[19] Shruti Haasan, Sonam Kapoor, Anushka Sharma,[20] commented against the ruling. Many other well known persons, including Nobel Laureate Amartya Sen, and writer Vikram Seth, protested against the supreme court ruling.[21]

References
  1. Rajagopal, Krishnadas (5 September 2017). "SC likely to hear curative pleas against Sec 377 on September 8". The Hindu. ISSN 0971-751X. Retrieved 7 September 2018.
  2. "'Gay sex is not a crime,' says Supreme Court in historic judgment - Times of India ►". The Times of India. Retrieved 7 September 2018.
  3. Pundir, Pallavi. "I Am What I Am. Take Me as I Am". Vice News. Retrieved 8 September 2018.
  4. http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070
  5. "Homosexuality is criminal offense: Supreme court". The Economic Times. 11 December 2013. Retrieved 11 December 2013.
  6. Buncombe, Andrew (17 December 2013). "India-US row over arrest of diplomat Devyani Khobragade in New York escalates". The Independent. London.
  7. "Punish US diplomats with same sex companions: Yashwant Sinha". Business Standard. 17 December 2013.
  8. "HugeDomains.com - EnewspaperOfIndia.com is for sale (Enewspaper Of India)". www.enewspaperofindia.com. Cite uses generic title (help)
  9. "UN chief Ban Ki-moon calls for equality for lesbians, gays and bisexuals". The Times Of India. 12 December 2013.
  10. India Today Online New Delhi, 12 December 2013 | UPDATED 19:05 IST
  11. "Rahul-gandhi-wants-section-377-to-go-supports-gay-rights". India Today Online New Delhi. 12 December 2013.
  12. "Press Trust of India". Indian Express (22 July). Press Trust of India. 2014. Retrieved 31 January 2015.
  13. Ratnam, Dhamini (14 January 2015). "BJP supports decriminalization of homosexuality: Shaina NC".
  14. "Centre moves apex court for review of Section 377 ruling". The Hindu. Chennai, India. 21 December 2013. Retrieved 21 December 2013.
  15. "Naz Foundation files review petition against SC order on Section 377". CNN IBN. 27 December 2013. Retrieved 27 December 2013.
  16. "Supreme Court refuses overruling its Verdict on Section 377 and Homosexuality". IANS. Biharprabha News. Retrieved 28 January 2014.
  17. "SC Refuses To Review Sec 377 Order". Retrieved 28 January 2014.
  18. "Imran Khan tackles the homophobic Indian man in viral video". 27 December 2013.
  19. "Third world, third class: Social media reacts to SC 377 shocker". 11 December 2013.
  20. "Aamir Khan and John Abraham slam Supreme Court order against homosexuality, say it's a shame on Twitter".
  21. "Author Vikram Seth slams BJP for its "deafening silence" on gay sex verdict".
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