Section 377 of Indian Penal code, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society
Section 377 of the Indian Penal Code has been declared unconstitutional by reversing a division bench judgment passed by the Supreme Court in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors, a Constitution bench comprising five judges concluded the following:-
Previously in Suresh Kumar Koushal & Anr vs Naz Foundation & Ors it was held :
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.
NAVTEJ SINGH JOHAR & ORS. VERSUS UNION OF INDIA THR. SECRETARY
MINISTRY OF LAW AND JUSTICE
WRIT PETITION (CIVIL) NO. 572 OF 2016
WRIT PETITION (CRIMINAL) NO. 88 OF 2018
WRIT PETITION (CRIMINAL) NO. 100 OF 2018
WRIT PETITION (CRIMINAL) NO. 101 OF 2018
WRIT PETITION (CRIMINAL) NO. 121 OF 2018
i. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.
ii. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.
iii. The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality.
iv. The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. is hereby overruled for the reasons stated in paragraph 19. 57 (2014) 1 SCC 1 The Reference is answered accordingly
The response of the Government of india :
35.The respondent, Union of India, has, vide affidavit dated 11th July, 2018, submitted that the matter at hand was referred to a Constitution Bench to decide as to whether the law laid down in Suresh Koushal (supra) is correct or not and the only question referred to this Bench is the question of the constitutional validity of criminalizing ‘consensual acts of adults in private’ falling under Section 377 IPC.
36. Further, the Union has submitted that so far as the constitutional validity of Section 377 IPC, to the extent it applies to ‘consensual acts of adults in private’, is concerned, the respondent leaves the same to the wisdom of this Court.
37. The respondent has also contended that in the event Section 377 IPC so far as ‘consensual acts of adults in private’ is declared unconstitutional, other ancillary issues or rights which have not been referred to this Bench for adjudication may not be dealt with by this Bench as in that case, the Union of India expresses the wish to file detailed affidavit in reply, for consideration of other issues and rights would have far reaching and wide ramifications under various other laws and will also have consequences which are neither contemplated in the reference nor required to be answered by this