Suresh Kumar Koushal V Naz Foundation – Criminalisation Of Same-Sex Relations (Later Overruled)
Suresh Kumar Koushal v. Naz Foundation (2013)
Background
Section 377 of the Indian Penal Code (IPC), 1860 criminalised “carnal intercourse against the order of nature,” historically used to target same-sex sexual relations between consenting adults.
In Naz Foundation v. NCT of Delhi (2009), the Delhi High Court had struck down Section 377 insofar as it criminalised consensual sexual acts between adults. This was a landmark victory for LGBTQ+ rights.
However, the 2009 decision was challenged in the Supreme Court by a group of private individuals and organisations.
Supreme Court Judgment (2013)
In Suresh Kumar Koushal v. Naz Foundation (2013), the Supreme Court:
✔ Upheld the constitutional validity of Section 377.
✔ Reinstated criminalisation of consensual same-sex relations.
Key Reasoning of the Court
“Minuscule minority” argument:
The Court held that only a small fraction of the population is affected by Section 377, and therefore the law could not be struck down on the ground of violating fundamental rights of a “minuscule minority”.
Legislative domain:
The Court stated that it was for Parliament, not the judiciary, to decide whether such a law should be repealed or modified.
No evidence of misuse:
The Court said that there was insufficient evidence of Section 377 being misused against LGBTQ+ individuals—even though substantial documentary evidence had been provided.
Public morality:
The Court gave weight to "public morality" rather than "constitutional morality," which was a regressive interpretation later corrected by later judgments.
Impact of the Judgment
• Re-criminalised consensual same-sex relations
• Caused fear, harassment, and stigma
• Became widely criticised for being discriminatory, outdated, and unconstitutional
The judgment was later overruled by the Constitution Bench in Navtej Singh Johar (2018).
Related Case Laws Explained in Detail
Below are six major cases, including pre-Koushal and post-Koushal decisions, which shaped LGBTQ+ rights jurisprudence in India.
1. Naz Foundation v. Government of NCT of Delhi (Delhi High Court, 2009)
Issue
Constitutionality of Section 377 IPC as applied to consensual adult same-sex relations.
Judgment
Delhi High Court read down Section 377 to exclude consensual sexual activity between adults in private.
Key Findings
Violation of Articles 14, 15, and 21.
Sexual orientation is an intrinsic part of personal liberty.
Shift from public morality to constitutional morality.
Emphasised dignity, privacy, and equality.
Importance
This was the first major constitutional victory for LGBTQ+ rights in India and set the stage for the later Supreme Court cases.
2. National Legal Services Authority (NALSA) v. Union of India (2014)
Issue
Recognition of transgender persons as a third gender.
Judgment
The Supreme Court declared transgender persons as a “third gender”, granting legal recognition and constitutional protection.
Key Contributions
Affirmed the right to self-identification of gender (male, female, or third gender).
Stressed rights to equality, dignity, and freedom from discrimination.
Directed the government to create welfare schemes and legal protections.
Importance
Although unrelated directly to Section 377, NALSA is a crucial LGBTQ+ rights case, showing that Koushal was inconsistent with recognition of sexual/gender minorities.
3. Justice K.S. Puttaswamy (Retd.) v. Union of India (Right to Privacy, 2017)
Issue
Whether the right to privacy is a fundamental right.
Judgment
A 9-judge bench held that the Right to Privacy is a fundamental right under Article 21.
Key Points Related to LGBTQ+ Rights
Sexual orientation was declared an intrinsic aspect of privacy.
The Court criticised the “minuscule minority” reasoning of Suresh Kumar Koushal.
Clearly held that privacy, dignity, sexuality, and autonomy are interconnected.
Importance
Puttaswamy became a key precedent in overruling Suresh Kumar Koushal.
4. Navtej Singh Johar v. Union of India (2018) – Overruling of Koushal
Issue
Constitutional validity of Section 377 IPC.
Judgment
A 5-judge Constitution Bench struck down Section 377 insofar as it criminalised consensual adult same-sex relations.
Key Findings
Sexual orientation is natural and protected by Articles 14, 15, 19, and 21.
Overruled Suresh Kumar Koushal completely.
Emphasised constitutional morality, not public or majoritarian morality.
Apologised to LGBTQ+ persons for historical injustice.
Importance
This is the landmark case that decriminalised same-sex relations in India permanently.
5. Shafin Jahan v. Asokan (Hadiya Case, 2018)
Issue
Right to choose one’s partner (though not LGBTQ-specific, it is legally relevant).
Judgment
Supreme Court upheld an adult woman’s absolute right to choose her partner.
Relevance to LGBTQ+ rights
Strengthened the doctrine of autonomy and consent.
Reinforced that adults have the right to choose whom to love and marry.
Frequently cited in LGBTQ+ marriage and relationship cases.
6. Arunkumar & Sreeja v. Inspector General of Registration (Madras High Court, 2019)
Issue
Validity of marriage between a man and a transgender woman under Hindu Marriage Act.
Judgment
Madras High Court upheld the marriage, recognising a transgender woman as a “bride.”
Key Findings
Gender identity is based on self-identification, not biological criteria.
Applied NALSA and Navtej Singh Johar principles.
Importance
Expanded LGBTQ+ rights by recognising transgender marriage under existing law, setting a precedent for broader marriage equality jurisprudence.
Conclusion
Suresh Kumar Koushal (2013) is remembered as a major setback in the struggle for LGBTQ+ rights because it re-criminalised consensual same-sex relations and relied on deeply flawed reasoning.
However, later cases—especially Puttaswamy (2017) and Navtej Singh Johar (2018)—corrected the errors and restored the rights of LGBTQ+ people under the Constitution.
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