## Facts

- Section 377 of the Indian Penal Code (IPC) criminalized “carnal intercourse against the order of nature” with any man, woman, or animal, punishable by imprisonment and fine.
- An NGO working in HIV/AIDS prevention filed a public interest petition challenging Section 377 as unconstitutional insofar as it penalized private, consensual sexual acts between adults.
- The Delhi High Court held that Section 377, as applied to consensual adult sex in private, violated constitutional guarantees of equality, non-discrimination, and personal liberty, and “read down” the provision to leave it applicable to non-consensual acts and acts involving minors.
- Multiple private individuals and groups appealed; the government did not initially appeal.
- The Supreme Court of India consolidated the appeals and reviewed whether the High Court’s reading-down was legally sustainable.

## Issues

1. Whether Section 377 IPC, insofar as it criminalizes private, consensual sexual acts between adults, violates constitutional guarantees of equality, non-discrimination, freedom, and personal liberty.
2. Whether the High Court permissibly “read down” Section 377 as a constitutional remedy or instead intruded into legislative functions.
3. Whether the evidentiary record concerning enforcement, harassment, and public health impacts supported invalidating or narrowing the statute.

## Decision

- The Supreme Court allowed the appeals and set aside the Delhi High Court’s judgment.
- The Court held that Section 377 IPC did not suffer from constitutional invalidity on the grounds accepted by the High Court.
- The Court restored Section 377’s operation according to its text, without the High Court’s consent-and-privacy limitation.
- The Court stated that repeal or amendment of Section 377 was for the legislature to consider.

## Legal Principles

- A criminal statute is not rendered unconstitutional merely because it may be misused; potential abuse is addressed through lawful enforcement and remedies, not facial invalidation alone.
- Courts may consider foreign and international materials as persuasive, but they are not controlling and should not be applied mechanically where constitutional text and conditions differ.
- The judiciary should exercise restraint where the requested relief effectively rewrites a penal statute; changes of that kind are generally for legislative action.
- A constitutional challenge requires an adequate factual basis; generalized assertions about discriminatory impact or public health effects, without sufficient supporting material, may be treated as insufficient to justify striking down or substantially narrowing a statute.
- The Court treated Section 377 as regulating specified sexual acts rather than criminalizing a status or identity, and it rejected reading “sexual orientation” into the constitutional term “sex” for purposes of invalidating the statute in this case.

## Conclusion

The Supreme Court of India reversed the Delhi High Court’s reading down of Section 377 and upheld the provision’s constitutional validity, concluding that the High Court’s rights-based limitation on consensual adult conduct was legally unsustainable and that any reform should come from the legislature.


Suresh Kumar Koushal v. NAZ Found. (India) Tr., Civ. Appeal No. 10972 of 2013 (India 2013)