Suresh Kumar Koushal v. Naz Foundation

{{Use Indian English|date=September 2019}}{{Infobox court case

| name = Suresh Kumar Koushal v. Naz Foundation

| court = Supreme Court of India

| image =

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| imagelink =

| imagealt =

| caption =

| full name = Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors.

| date decided = 11 December 2013

| citations = {{URL|1=https://web.archive.org/web/20200906222227/https://main.sci.gov.in/jonew/judis/41070.pdf|2=Civil Appeal No. 10972 of 2013}}

| ECLI =

| transcripts =

| judges = G. S. Singhvi {{Abbr|J.|Justice}} and S. J. Mukhopadhaya {{Abbr|J.|Justice}}

| number of judges = 2

| decision by = G. S. Singhvi {{Abbr|J.|Justice}}

| concurring =

| dissenting =

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| prior actions =

| appealed from = Naz Foundation v. Govt. of NCT of Delhi by High Court of Delhi

| appealed to =

| related actions =

| opinions = Section 377 is constitutional; Naz Foundation v. Govt. of NCT of Delhi overturned upon appeal.

| keywords = Criminalization of Homosexuality

| italic title =

| Overruled = Navtej Singh Johar v. Union of India (2018)

}}

Suresh Kumar Koushal {{Abbr|&|and}} {{Abbr|Anr.|Another}} v. NAZ Foundation {{Abbr|&|and}} {{Abbr|Ors.|Others}} (2013) is a 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.{{Cite news|url=https://www.thehindu.com/news/national/sc-likely-to-hear-curative-pleas-against-sec-377-on-september-8/article19625788.ece|title=SC likely to hear curative pleas against Sec 377 on September 8|last=Rajagopal|first=Krishnadas|date=2017-09-05|work=The Hindu|access-date=2018-09-07|language=en-IN|issn=0971-751X}} Thereby in 2018, Navtej Singh Johar v. Union of India, a 5 judge bench of the Supreme Court overturned this judgement, decriminalizing homosexuality.{{Cite news|url=https://timesofindia.indiatimes.com/india/gay-sex-is-not-a-crime-says-supreme-court-in-historic-judgement/articleshow/65695172.cms|title='Gay sex is not a crime,' says Supreme Court in historic judgment - Times of India ►|work=The Times of India|access-date=2018-09-07}} Portions of Section 377 relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain in force.{{cite web |last1=Pundir |first1=Pallavi |title=I Am What I Am. Take Me as I Am |url=https://www.vice.com/en_in/article/7xq5yd/i-am-what-i-am-take-me-as-i-am |website=Vice News |access-date=8 September 2018}}

Decision

File:Section 377 - CIVIL APPEAL NO.10972 OF 2013 Judgement.pdf 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 {{sic|hide=y|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 — {{blockquote|"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."http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070 {{Dead link|date=August 2022}}}}

The two 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.{{cite news | url=http://economictimes.indiatimes.com/news/politics-and-nation/homosexuality-is-criminal-offence-supreme-court/articleshow/27210542.cms | title=Homosexuality is criminal offense: Supreme court | newspaper=The Economic Times | date=11 December 2013 | access-date=11 December 2013}}

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.{{cite news|last=Buncombe|first=Andrew|title=India-US row over arrest of diplomat Devyani Khobragade in New York escalates|url=https://www.independent.co.uk/news/world/asia/indiaus-row-over-arrest-of-diplomat-devyani-khobragade-in-new-york-escalates-9011080.html |archive-url=https://ghostarchive.org/archive/20220525/https://www.independent.co.uk/news/world/asia/indiaus-row-over-arrest-of-diplomat-devyani-khobragade-in-new-york-escalates-9011080.html |archive-date=25 May 2022 |url-access=subscription |url-status=live|newspaper=The Independent|date=17 December 2013|location=London}}{{cite news|title=Punish US diplomats with same sex companions: Yashwant Sinha|url=http://www.business-standard.com/article/current-affairs/punish-us-diplomats-with-same-sex-companions-yashwant-sinha-113121700928_1.html|newspaper=Business Standard|date=17 December 2013}} The recriminalization of gay sex comes under fire from World leaders. The United Nations human rights chief Navi Pillay{{cite web|url=http://www.enewspaperofindia.com/News/United-Nations-criticizes-SC-verdict-on-Sec-377_news_257.aspx|title=EnewspaperOfIndia.com|website=www.enewspaperofindia.com}} 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{{cite news|url=http://articles.economictimes.indiatimes.com/2013-12-12/news/45123244_1_lgbt-rights-ban-ki-moon-human-rights |archive-url=https://archive.today/20140217210316/http://articles.economictimes.indiatimes.com/2013-12-12/news/45123244_1_lgbt-rights-ban-ki-moon-human-rights |url-status=dead |archive-date=17 February 2014 | work=The Times Of India | title=UN chief Ban Ki-moon calls for equality for lesbians, gays and bisexuals | date=12 December 2013}} stressed on the need for equality and opposed any discrimination against lesbians, gays and bisexuals.India Today Online New Delhi, 12 December 2013 | UPDATED 19:05 IST

Transgender Rights activist Vyjayanti Vasanta Mogli 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.{{Cite web|date=2014-07-21|title=Suresh Kumar Kaushal vs. Naz Foundation: A Critical Analysis|url=https://www.lawctopus.com/academike/suresh-kumar-koushal-vs-naz-foundation-critical-analysis/|access-date=2022-02-01|website=www.lawctopus.com|language=en-US}}

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.{{cite news|title=Rahul-gandhi-wants-section-377-to-go-supports-gay-rights|newspaper=India Today Online New Delhi|date=12 December 2013}}

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.{{cite news|title=Press Trust of India|url=http://indianexpress.com/article/india/india-others/no-plans-to-amend-section-377-till-sc-decision-govt/|access-date=31 January 2015|agency=Press Trust of India|issue=22 July|newspaper=Indian Express|date=2014}} 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."{{cite web|url=http://www.livemint.com/Leisure/XCOl7cJw5t3DgnQZsFYIFO/BJP-supports-decriminalization-of-homosexuality-Shaina-NC.html|title=BJP supports decriminalization of homosexuality: Shaina NC|first=Dhamini|last=Ratnam|date=14 January 2015|publisher=}}

= Central government =

The central government led by Indian National Congress 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.{{cite news|url=http://www.thehindu.com/news/national/centre-moves-apex-court-for-review-of-section-377-ruling/article5482511.ece|title=Centre moves apex court for review of Section 377 ruling|date=21 December 2013|access-date=21 December 2013|newspaper=The Hindu|location=Chennai, India}} Naz Foundation also filed a review petition against the Supreme Court order on Section 377.{{cite web|url=http://ibnlive.in.com/news/naz-foundation-files-review-petition-against-sc-order-on-section-377/441372-3.html|archive-url=https://web.archive.org/web/20131230015355/http://ibnlive.in.com/news/naz-foundation-files-review-petition-against-sc-order-on-section-377/441372-3.html|url-status=dead|archive-date=30 December 2013|title=Naz Foundation files review petition against SC order on Section 377|date=27 December 2013|publisher=CNN IBN|access-date=27 December 2013}}

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.{{cite web|url=http://news.biharprabha.com/2014/01/supreme-court-refuses-overruling-its-verdict-on-article-377-and-homosexuality/|title=Supreme Court refuses overruling its Verdict on Section 377 and Homosexuality|work=IANS|publisher=Biharprabha News|access-date=28 January 2014}}{{cite news|url=http://www.btvin.com/videos/watch/5396/sc-refuses-to-review-sec-377-order|title=SC Refuses To Review Sec 377 Order|access-date=28 January 2014|archive-date=10 March 2016|archive-url=https://web.archive.org/web/20160310095812/http://www.btvin.com/videos/watch/5396/sc-refuses-to-review-sec-377-order|url-status=usurped}}

=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.{{cite web|url=http://www.firstpost.com/bollywood/imran-khan-tackles-the-homophobic-indian-man-in-viral-video-1309573.html|title=Imran Khan tackles the homophobic Indian man in viral video|date=27 December 2013|publisher=}} Many Mumbai film industry personalities such as Amitabh Bachchan, Aamir Khan, Celina Jaitley, Twinkle Khanna, John Abraham, Karan Johar, Farhan Akhtar, Riteish Deshmukh,{{cite web|url=http://www.firstpost.com/living/third-world-third-class-social-media-reacts-to-sc-377-shocker-1281067.html|title=Third world, third class: Social media reacts to SC 377 shocker|date=11 December 2013|publisher=}} Shruti Haasan, Sonam Kapoor, Anushka Sharma,{{cite web|url=http://indiatoday.intoday.in/story/apex-courts-anti-gay-verdict-upsets-bollywood/1/330651.html|title=Aamir Khan and John Abraham slam Supreme Court order against homosexuality, say it's a shame on Twitter|publisher=}} commented against the ruling. Many other well known persons, including Nobel Laureate Amartya Sen, and writer Vikram Seth, protested against the supreme court ruling.{{cite web|url=http://www.ndtv.com/india-news/author-vikram-seth-slams-bjp-for-its-deafening-silence-on-gay-sex-verdict-544499|title=Author Vikram Seth slams BJP for its "deafening silence" on gay sex verdict|publisher=}}