Suresh Kumar Koushal v. NAZ Foundation (2013) is a case in which a 2 judge

Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...

bench consisting of

G. S. Singhvi G.S. Singhvi (born 12 December 1948) is a retired judge of the Supreme Court of India. He retired on 11 December 2013. Early life and education Singhvi was born at Jodhpur, Rajasthan on 12 December 1948. He graduated in 1968 from Jodhpur Un ...

and S. J. Mukhopadhaya overturned the Delhi High Court case ''

Naz Foundation v. Govt. of NCT of Delhi Naz Foundation v. Govt. of NCT of Delhi (2009) is a landmark Indian case decided by a two-judge bench of the Delhi High Court, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights prote ...

'' and reinstated

Section 377 of the Indian Penal Code Section 377 of the British colonial penal code criminalized all sexual acts "against the order of nature". The law was used to prosecute people engaging in oral and anal sex along with homosexual activity. The penal code remains in many former col ...

. The

Supreme Court of India The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...

decided to revisit this judgement after several curative petitions were filed against it, in 2017. Thereby in 2018, ''

Navtej Singh Johar v. Union of India Navtej Singh Johar v. Union of India Secretary Ministry of Law and Justice (2018) is a landmark decision of the Supreme Court of India that decriminalised all consensual sex among adults, including homosexual sex. The court was asked to dete ...

,'' a 5 judge bench of the Supreme Court overturned this judgement, decriminalizing homosexuality. But portions of Section 377 relating to sex with minors,

non-consensual Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...

sexual acts such as

rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ag ...

, and bestiality remain in force.

Decision

The judges stated that "a fraction of the country's population constitutes

lesbians A lesbian is a homosexual woman.Zimmerman, p. 453. The word is also used for women in relation to their sexual identity or sexual behavior, regardless of sexual orientation, or as an adjective to characterize or associate nouns with fem ...

gays ''Gay'' is a term that primarily refers to a homosexual person or the trait of being homosexual. The term originally meant 'carefree', 'cheerful', or 'bright and showy'. While scant usage referring to male homosexuality dates to the late 1 ...

bisexual Bisexuality is a romantic or sexual attraction or behavior toward both males and females, or to more than one gender. It may also be defined to include romantic or sexual attraction to people regardless of their sex or gender identity, whi ...

s or

transgender A transgender (often abbreviated as trans) person is someone whose gender identity or gender expression does not correspond with their sex assigned at birth. Many transgender people experience dysphoria, which they seek to alleviate through tr ...

s" 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

set aside the 2009 judgement given by the

Delhi High Court The High Court of Delhi (IAST: ''dillī uchcha nyāyālaya'') was established on 31 October 1966, through the ''Delhi High Court Act, 1966'', with four judges, Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. ...

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 A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...

bench of justices

and S. J. Mukhopadhaya stated — The two judges however noted that the

Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...

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.

Responses

Days later and influenced by the

Devyani Khobragade incident On December 11, 2013, Devyani Khobragade, then the Deputy Consul General of the Consulate General of India in New York City, was charged by U.S. authorities with committing visa fraud and providing false statements in order to gain entry to the ...

, former Finance Minister

Yashwant Sinha Yashwant Sinha (, born 6 November 1937) is an Indian administrator and politician. He served as the Minister of Finance from 1990 until 1991 under Prime Minister Chandra Shekhar and again from March 1998 to July 2002 under Prime Minister Atal B ...

called for the arrest of same-sex companions of US diplomats, citing the

's recent upholding of Section 377 of the Indian Penal Code. The recriminalization of gay sex comes under fire from World leaders. The United Nations human rights chief Navi Pillay 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 The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...

's ruling that gay sex is illegal, UN chief

Ban Ki-moon Ban Ki-moon (; ; born 13 June 1944) is a South Korean politician and diplomat who served as the eighth secretary-general of the United Nations between 2007 and 2016. Prior to his appointment as secretary-general, Ban was his country's Minister ...

stressed on the need for equality and opposed any discrimination against lesbians, gays and bisexuals. Transgender Rights activist

Vyjayanti Vasanta Mogli Vyjayanti Vasanta Mogli is an Indian transgender activist, RTI activist, singer and motivational speaker. She intervened in the “ Suresh Kumar Kaushal & Other vs Naz Foundation & Others” case in the Supreme Court in 2014 in which she highl ...

intervened in Case in the Supreme Court in 2014 in which she highlighted the deleterious effects of conversion or reparative therapy on queer people through her affidavit. Soon after the judgement,

Sonia Gandhi Sonia Gandhi ('' née'' Maino; born 9 December 1946) is an Indian politician. She is the longest serving president of the Indian National Congress, a social democratic political party, which has governed India for most of its post-independ ...

, President of the then ruling

Indian National Congress The Indian National Congress (INC), colloquially the Congress Party but often simply the Congress, is a political party in India with widespread roots. Founded in 1885, it was the first modern nationalist movement to emerge in the British Em ...

, asked Parliament to do away with section 377. Her son and Congress Party vice-president,

Rahul Gandhi Rahul Gandhi ( ; born 19 June 1970) is an Indian politician and a member of the Indian Parliament, representing the constituency of Wayanad, Kerala in the 17th Lok Sabha. A member of the Indian National Congress, he served as the president of ...

also wanted section-377 to go and supported gay rights. In July 2014, Minister of State for Home Kiren Rijiju in the

BJP The Bharatiya Janata Party (BJP; ; ) is a political party in India, and one of the two major Indian political parties alongside the Indian National Congress. Since 2014, it has been the ruling political party in India under Narendra Modi ...

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. However, on 13 January 2015, BJP spokesperson Shaina NC, appearing on NDTV, stated, "We JPare for decriminalizing homosexuality. That is the progressive way forward."

Central government

The central government led by

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. Naz Foundation has also filed a review petition against the Supreme Court order on Section 377. On 28 January 2014

dismissed the review Petition filed by

Central Government A central government is the government that is a controlling power over a unitary state. Another distinct but sovereign political entity is a federal government, which may have distinct powers at various levels of government, authorized or dele ...

, NGO Naz Foundation and several others, against its 11 December verdict on Section 377 of IPC.

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. Many Mumbai film industry personalities such as

Amitabh Bachchan Amitabh Bachchan (; born as Amitabh Shrivastav; 11 October 1942) is an Indian actor, film producer, television host, occasional playback singer and former politician known for his work in Hindi cinema. He is regarded as one of the most succe ...

Aamir Khan Mohammed Aamir Hussain Khan (; born 14 March 1965) is an Indian actor, film director and producer who works in Hindi films. Through his career spanning over 30 years, Khan has established himself as one of the most notable actors of Indian ci ...

Celina Jaitley Celina Jaitly (born 24 November 1981) is an Indian actress who mainly appears in Bollywood films. She won the Miss India in 2001 and was the 4th runner-up at Miss Universe 2001. She made her acting debut with the 2003 thriller ''Janasheen''. E ...

Twinkle Khanna Twinkle Khanna (also known as Tina Jatin Khanna; born on 29 December) is an Indian author, columnist, interior designer, film producer and a former film actress. In 2015, she released her first non-fiction book, " Mrs Funnybones" which was decl ...

John Abraham John Abraham (born 17 December 1972) is an Indian actor, film producer, writer and former model working in Hindi films. He has won a National Film Award and received five Filmfare nominations. After modelling for advertisements and companies ...

Karan Johar Karan Johar (born Rahul Kumar Johar; 25 May 1972), often informally referred to as KJo in the Hindi Film Industry, is an Indian filmmaker and television personality, who primarily works in Hindi cinema. He has launched the careers of several s ...

Farhan Akhtar Farhan Akhtar (born 9 January 1974) is an Indian actor, director, screenwriter, playback singer, producer, and television host who works in Hindi films. Born in Mumbai to screenwriters Javed Akhtar and Honey Irani, he grew up under the influen ...

Riteish Deshmukh Riteish Vilasrao Deshmukh (born 17 December 1978) is an Indian actor, comedian, television presenter, writer, director and film producer. He is the son of former Chief Minister of Maharashtra Vilasrao Deshmukh. He works in Hindi and Marathi cin ...

Shruti Haasan Shruti Haasan (born 28 January 1986) is an Indian actress and playback singer who works predominantly in Telugu, Tamil and Hindi films. Born in the Haasan family, she is the daughter of actor-filmmaker Kamal Haasan and actress Sarika Thakur. ...

Sonam Kapoor Sonam Kapoor Ahuja (; born 9 June 1985) is an Indian actress who works in Hindi films. She has won a National Film Award and a Filmfare Award, and from 2012 to 2016, she appeared in ''Forbes India'' Celebrity 100 list based on her income and ...

Anushka Sharma Anushka Sharma (; born 1 May 1988) is an Indian actress and former producer who works in Hindi films. She has received several awards, including a Filmfare Award. One of the highest-paid actresses in India as of 2018, she has appeared in '' F ...

, commented against the ruling. Many other well known persons, including Nobel Laureate

Amartya Sen Amartya Kumar Sen (; born 3 November 1933) is an Indian economist and philosopher, who since 1972 has taught and worked in the United Kingdom and the United States. Sen has made contributions to welfare economics, social choice theory, econom ...

, and writer

Vikram Seth Vikram Seth (born 20 June 1952) is an Indian novelist and poet. He has written several novels and poetry books. He has won several awards such as Padma Shri, Sahitya Academy Award, Pravasi Bharatiya Samman, WH Smith Literary Award and Crosswor ...

, protested against the supreme court ruling.

References

External links

''Suresh Kumar Koushal vs. Naz Foundation''
{{LGBT in India LGBT rights in India Supreme Court of India cases Indian LGBT rights case law