The judgment of Suresh Kumar Koushal vs. Naz Foundation, delivered by the Supreme Court of India in 2013, is a significant decision in the legal trajectory of LGBTQ+ rights in India. This judgment, controversially, upheld the constitutional validity of Section 377 of the Indian Penal Code (IPC) that criminalized “carnal intercourse against the order of nature,” effectively recriminalizing consensual homosexual acts between adults.
Background of the Case:
Naz Foundation, an NGO working on HIV/AIDS and sexual health issues, filed a petition in the Delhi High Court in 2001, challenging the constitutional validity of Section 377. In a landmark verdict in 2009, the Delhi High Court decriminalized homosexual acts between consenting adults by reading down Section 377. However, this judgment was challenged in the Supreme Court, leading to the Suresh Kumar Koushal case.
Key Takeaways from the Judgement:
- Upholding Section 377: The two-judge bench of the Supreme Court overturned the Delhi High Court’s decision, holding that Section 377 was constitutionally valid. The court justified the decision by stating that the LGBTQ+ community was a “minuscule fraction of the country’s population” and thus did not warrant judicial intervention.
- Legislative Domain: The judgment emphasized that the power to amend or repeal Section 377 IPC should lie with the Parliament, not the judiciary.
- Ambiguous Stance on Rights: While the court upheld Section 377, it also observed that the LGBTQ+ community should not face discrimination and is entitled to their constitutional rights. However, this observation was in stark contrast to the decision to uphold a section that, in essence, discriminates against them.
Critical Analysis:
- Majoritarianism vs. Minority Rights: The court’s emphasis on the “minuscule” size of the LGBTQ+ community was criticized for being majoritarian in its approach. Fundamental rights, by their nature, are meant to protect minorities against the excesses of majority rule.
- Judicial Abdication: Critics argued that by deferring the responsibility to the legislature, the judiciary abdicated its duty to protect fundamental rights when they are infringed upon.
- Contradiction with Global Trends: At a time when many countries were decriminalizing homosexuality and recognizing LGBTQ+ rights, the judgment was seen as a step backward for India.
- Impact on LGBTQ+ Community: The judgment had severe implications for the LGBTQ+ community, further stigmatizing them and leaving them vulnerable to harassment, extortion, and discrimination.
However, it’s worth noting that this verdict was subsequently overruled in 2018 in the Navtej Singh Johar vs. Union of India case, where the Supreme Court decriminalized consensual homosexual acts between adults. The 2018 judgment, while reversing Suresh Kumar Koushal, reinstated the recognition of the right to love and equality for the LGBTQ+ community in India.
