Case: Suresh Kumar Koushal &amp; Another Vs. NAZ Foundation &amp; Others

(i) Respondent No.1 is a Non-Governmental Organisation (NGO) registered under the Societies Registration Act, 1860 which works in the field of HIV/AIDS intervention and prevention. Its work has focussed on targeting ‘men who have sex with(MSM) or homosexuals or gays in consonance with the integrationist policy. Alleging that its efforts have been severely impaired by the discriminatory attitudes exhibited by State authorities towards sexual minorities, MSM, lesbians and transgender individuals and that unless self respect and dignity is restored to these sexual minorities by doing away with discriminatory laws such as Section 377 IPC it will not be possible to prevent HIV/AIDS, NAZ Foundation filed WP(C) No. 7455/2001 before the Delhi High Court impleading the Government of NCT of Delhi; Commissioner of Police, Delhi; Delhi State Aids Control Society; National Aids Control Organisation (NACO) and Union of India through Ministry of Home Affairs and Ministry of Health & Family Welfare and prayed for grant of a declaration that Section 377 IPC to the extent it is applicable to and penalises sexual acts in private between consenting adults is violative of Articles 14, 15, 19(1)(a)-(d) and 21 of the Constitution. Respondent No.1 further prayed for grant of a permanent injunction restraining Government of NCT of Delhi and Commissioner of Police, Delhi from enforcing the provisions of Section 377 IPC in respect of sexual acts in private between consenting adults.(ii) Respondent No.1 pleaded that the thrust of Section 377 IPC is to penalise sexual acts which arethe order ofthat the provision is based on traditional Judeo-Christian moral and ethical standards and is being used to legitimise discrimination against sexual minorities; that Section 377 IPC does not enjoy justification in contemporary Indian society and that thehistoric and moral underpinning do not resonate with the historically held values in Indian society concerning sexual relations. Respondent No.1 relied upon 172nd Report of the Law Commission which had recommended deletion of Section 377 and pleaded that notwithstanding the recent prosecutorial use of Section 377 IPC, the same is detrimental tolives and an impediment to public health due to its direct impact on the lives of homosexuals; that the section serves as a weapon for police abuse in the form of detention, questioning, extortion, harassment, forced sex, payment of hush money; that the section perpetuates negative and discriminatory beliefs towards same sex relations and sexual minorities in general; and that as a result of that it drives gay men and MSM and sexual minorities generally underground which cripples HIV/AIDS prevention methods. According to respondent No.1, Section 377 is used predominantly against homosexual conduct as it criminalises activity practiced more often by men or women who are homosexually active. The evidence that refutes the assumption that non- procreative sexual acts are unnatural includes socio-scientific and anthropological evidence and also the natural presence of homosexuality in society at large.(iii) That private, consensual sexual relations are protected under the right to liberty under Article 21 under the privacy and dignity claim. It was further pleaded that Section 377 IPC is not a valid law because there exists no compelling State interest to justify the curtailment of an important fundamental freedom; that Section 377 IPC insofar as it criminalises consensual, non-procreative sexual relations is unreasonable and arbitrary and therefore violative of Article 14.(iv) Another plea taken by respondent No.1 was that Section 377 creates a classification between(penile-non-vaginal) penetrative sexual acts. The legislative objective of penalising unnatural acts has no rational nexus with the classification between natural (procreative) and unnatural (non-procreative) sexual acts and is thus violative of Article 14.4. By an order dated 2.9.2004, the Division Bench of the High Court dismissed the writ petition by observing that no cause of action has accrued to respondent No.1 and purely academic issues cannot be examined by the Court. The review petition filed by respondent No.1 was also dismissed by the High Court vide order dated 3.11.2004.5. Respondent No.1 challenged both the orders in SLP (C) Nos. 7217-7218/2005, which were converted to Civil Appeal No. 952/2006. This Court allowed the appeal vide order dated 3.2.2006 and remitted the writ petition for fresh decision by the High Court. The relevant portions of that order are reproducedchallenge in the writ petition before the High Court was to the constitutional validity of Section 377 of the Indian Penal Code, 1860. The High Court, without examining that issue, dismissed the writ petition by the impugned order observing that there is no case of action in favour of the appellant as the petition cannot be filed to test the validity of the Legislation and, therefore, it cannot be entertained to examine the academic challenge to the constitutionality of the provision.The learned Additional Solicitor General, if we may say so, rightly submits that the matter requires examination and is not of a nature which ought to have been dismissed on the ground afore-stated. We may, however, note that the appeal is being strenuously opposed by Respondent No.6. We are, however, not examining the issue on merits but are of the view that the matter does require consideration and is not of a nature which could have been dismissed on the ground afore- stated. In this view, we set aside the impugned judgment and order of the High Court and remit Writ Petition (C) No.7455 of 2001 for its fresh decision by the High Court.NACO and the Health Ministry had filed counter in the form of an affidavit of Shri M.L. Soni, Under Secretary to the Government of India, Ministry of Health & Family Welfare, National AIDS Control Organisation. He outlined the strategy adopted by NACO for prevention and control of HIV/AIDS in India which includes identification of high risk groups and the provision of necessary tools and information for protection and medical care. The deponent averred that National Sentinel Surveillance Data 2005 estimated that HIV prevalence inwho have sex with(MSM) is 8% while in general population it is lesser than 1%. The MSM population is estimated at 25 lacs as of January 2006. Shri Soni also stated that NACO has developed programmes for undertaking targeted interventions among MSM population and that for prevention of HIV/AIDS there is a need for an enabling environment where people indulging in risky behaviour may be encouraged not to conceal information so that they are provided with access to NACO services.7. On behalf of the Ministry of Home Affairs, Government of India, Shri Venu Gopal, Director (Judicial) filed an affidavit and pleaded that Section 377 does not suffer from any constitutional infirmity. Shri Venu Gopal further pleaded that an unlawful act cannot be rendered legitimate because the person to whose detriment it acts consents to it; that Section 377 has been applied only on complaint of a victim and there are no instances of arbitrary use or application in situations where the terms of the section do not naturally extend to Section 377 IPC; that Section 377 IPC is not violative of Articles 14 and 21 of the Constitution. According to Shri Venu Gopal, Section 377 IPC provides a punishment for unnatural sexual offences, carnalhe order ofnature and does not make any distinction between procreative and non-procreative sex.8. Joint Action Council Kannur and Shri B.P. Singhal, who were allowed to act as interveners, opposed the prayer made in the writ petition and supported the stand taken by the Government. Another intervener, i.e., Voices Against 377, supported the prayer of respondent No.1 that Section 377 should be struck down on the ground of unconstitutionality.9. The Division Bench of the High Court extensively considered the contentions of the parties and declared that Section 377, insofar as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14 and 15 of the Constitution. While dealing with the question relating to violation of Article 21, the High Court outlined the enlarged scope of the right to life and liberty which also includes right to protection ofdignity, autonomy and privacy, the Division Bench referred to Indian and foreign judgements, the literature and international understanding (Yogyakarta Principles) relating to sexuality as a form of identity and the global trends in the protection of privacy and dignity rights of homosexuals andsphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a persons dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The Government of India estimates the MSM number at around 25 lacs. The number of lesbians and transgender is said to be several lacs as well. This vast majority (borrowing the language of the South African Constitutional Court) is deniedSection 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual sexual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin inIndian Constitution – Cornerstone of Ay were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom inIn the words of Justice V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional armour. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen.A number of documents, affidavits and authoritative reports of independent agencies and even judgments of various courts have been brought on record to demonstrate the widespread abuse of Section 377 IPC for brutalizing MSM and gay community persons, some of them of very recent vintage. If the penal clause is not being enforced against homosexuals engaged in consensual acts within privacy, it only implies that this provision is not deemed essential for the protection of morals or public health vis-a-vis said section of society. The provision, from this perspective, should fail the. The High Court discussed the question whether morality can be a ground for imposing restriction on fundamental rights, referred to the judgments in Gobind v. State of Madhya Pradesh and another (1975) 2 SCC 148 , Lawrence v. Texas 539 U.S. 558 (2003), Dudgeon v. UK, European Court of Human Rights Application No.7525/1976, Norris v. Republic of Ireland, European Court of Human Rights Application No. 10581/1983, The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, South African Constitutional Court 1999 (1) SA 6, the words of Dr. Ambedkar quoting Grotius while moving the Draft Constitution, Granville Austin in his treatiseIndian Constitution – Cornerstone of Athe Wolfenden Committee Report, 172nd Law Commission of India Report, the address of the Solicitor General of India before United Nations Human Rights Council, the opinion of Justice Michael Kirby, former Judge of the Australian High Court andpopular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type ofthat can pass the test of compelling state interest, it must bemorality and not public morality.The argument of the learned ASG that public morality of homosexual conduct might open floodgates of delinquent behaviour is not founded upon any substantive material, even from such jurisdictions where sodomy laws have been abolished. Insofar as basis of this argument is concerned, as pointed out by Wolfenden Committee, it is often no more than the expression of revulsion against what is regarded as unnatural, sinful or disgusting. Moral indignation, howsoever strong, is not a valid basis for overridingfundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view. In Indian context, the latest report (172nd) of Law Commission on the subject instead shows heightened realization about urgent need to follow global trends on the issue of sexual offences. In fact, the admitted case of Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalization of adult same- sex conduct does not serve any public interest. The compelling state interest rather demands that public health measures are strengthened by de-criminalization of such activity, so that they can be identified and better focused upon.For the above reasons we are unable to accept the stand of the Union of India that there is a need for retention of Section 377 IPC to cover consensual sexual acts between adults in private on the ground of public morality.The High Court then considered the plea of respondent No.1 that Section 377 is violative of Article 14 of the Constitution, referred to the tests of permissible classification as also the requirements of reasonableness and non-arbitrariness as laid down by this Court and held that the classification created by Section 377 IPC does not bear any rational nexus to the objective sought to be achieved. The observations made by the High Court on this issue are extractedis clear that Section 377 IPC, whatever its present pragmatic application, was not enacted keeping in mind instances of child sexual abuse or to fill the lacuna in a rape law. It was based on a conception of sexual morality specific to Victorian era drawing on notions of carnality and sinfulness. In any way, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private. The second legislative purpose elucidated is that Section 377 IPC serves the cause of public health by criminalizing the homosexual behaviour. As already held, this purported legislative purpose is in complete contrast to the averments in NACOs affidavit. NACO has specifically stated that enforcement of Section 377 IPC adversely contributes to pushing the infliction underground, make risky sexual practices go unnoticed and unaddressed. Section 377 IPC thus hampers HIV/AIDS prevention efforts. Lastly, as held earlier, it is not within the constitutional competence of the State to invade the privacy oflives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalization of private sexual relations between consenting adults absent any evidence of serious harm deems the provisions objective both arbitrary and unreasonable. The state interestbe legitimate andfor the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity.The High Court took note of the Declaration of Principles of Equality issued by the Equal Rights Trust in April, 2008. It referred to the judgments in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, Lawrence v. Texas, Romer v Evans, Vriend v. Alberta and377 IPC is facially neutral and it apparently targets not identities but acts, but in its operation it does end up unfairly targeting a particular community. The fact is that these sexual acts which are criminalised are associated more closely with one class of persons, namely, the homosexuals as a class. Section 377 IPC has the effect of viewing all gay men as criminals. When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual nonconformity, persecuted, marginalised and turned in on itself. [Sachs, J. in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, para 108].13. The High Court also discussed the case of Anuj Garg v. Hotel Association of India in detail and made reference to the principles of strict scrutiny and proportionality review as borrowed from the jurisprudence of the US Supreme Court, the Canadian and European Courts and proceeded toa harmonious construction of the two judgments, the Supreme Court must be interpreted to have laid down that the principle of strict scrutiny would not apply to affirmative action under Article 15(5) but a measure that disadvantages a vulnerable group defined on the basis of a characteristic that relates to personal autonomy must be subject to strict scrutiny.Thus personal autonomy is inherent in the grounds mentioned in Article 15. The grounds that are not specified in Article 15 but are analogous to those specified therein, will be those which have the potential to impair the personal autonomy of an individual. This view was earlier indicated in Indra Sawhney v. Union of India, (1992) Supp. 3 SCC 217….As held in Anuj Garg, if a law discriminates on any of the prohibited grounds, it needs to be tested not merely againstunder Article 14 but be subject to. The impugned provision in Section 377 IPC criminalises the acts of sexual minorities particularly menwho have sex withmen and gay men. It disproportionately impacts them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. Section 377 IPC in its application to sexual acts of consenting adults in privacy discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited ground of sex. A provision of law branding one section of people as criminal based wholly on themoral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review.A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems. [Francis Coralie Mullin v. Union Territory of Delhi (1981) 1 SCC 608 , Para 6 of SCC].Finally, the High Court elaborated upon the scope of thepower to declare a statutory provision invalid, referred to the judgments in State of Madras v. V.G. Row, R. (Alconbury Ltd.) v. Environment Secretary, [2001] 2 WLR 1389, West Virginia State Board of Education v. Barnette, 319 US 624 (1943), I.R. Coelho (Dead) by LRs v. State of Tamil Nadu & Ors., (2007) 2 SCC 1  and Raja Ram Pal v. Honble Speaker, Lok Sabha & Ors., (2007) 3 SCC 184 , Peerless General Finance Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343  andis true that the courts should ordinarily defer to the wisdom of the legislature while exercising the power of judicial review of legislation. But it is equally well settled that the degree of deference to be given to the legislature is dependent on the subject matter under consideration. When matters ofsuch as constitutionally entrenched human rights – are under consideration, the courts are obliged in discharging their own sovereign jurisdiction, to give considerably less deference to the legislature than would otherwise be the case.In the present case, the two constitutional rights relied upon i.e. right to personal liberty and right to equality are fundamental human rights which belong to individuals simply by virtue of their humanity, independent of any utilitarian consideration. A Bill of Rights does not confer fundamental human rights. It confirms their existence and accords them protection.After the conclusion of oral hearing, learned ASG filed his written submissions in which he claimed that the courts have only to interpret the law as it is and have no power to declare the law invalid. According to him, therefore, if we were to agree with the petitioner, we could only make recommendation to Parliament and it is for Parliament to amend the law. We are constrained to observe that the submission of learned ASG reflects rather poorly on his understanding of the constitutional scheme. It is a fundamental principle of our constitutional scheme that every organ of the State, every authority under the Constitution derives its power or authority under the Constitution and has to act within the limits of powers. The judiciary is constituted as the ultimate interpreter of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government, what are the limits on the exercise of such power under the Constitution and whether any action of any branch transgresses such limits. The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the principle of majority rule implicitly recognizes the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights. After the enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. To quote the words of Krishna Iyer, J.The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick readings of a Bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate.e order ofthe High Court has been challenged by large number of organizations and individuals including Joint Action Council Kannur and Shri B.P. Singhal, who were interveners before the High Court. During the pendency of the special leave petitions several individuals and organisations filed IAs for permission to intervene. All the IAs were allowed vide order dated 7.2.2011 and the applicants were permitted to act as interveners. The details of the parties and interveners before this Court are as under:Case NumberNameDescription before the CourtDetailsSLP (C) No. 15436/2009 (CC No. 9255/2009)Suresh KumarKoushal & Anr.Petitioners (Not parties before the High Court)Petitioners are citizens of India who believe they have the moral responsibility and duty in protecting cultural values of Indian society.?Samajik Ekta PartyIntervener – IA No. 4/2009The applicant is a political party registered by the Election Commission of India under Sec 29A, Representation of People Act, 1951 vide order dt. 20.4.1995. It is interested in the welfare of the citizens, their rights, functioning of the State and interest of public at large.?Mr. Shyam BenegalIntervener – IA No. 6/2009The applicant is a film maker and a citizen. He seeks impleadment in the SLP in light of the fact that due to the misunderstanding and confusion of thought with regard to homosexuality, all points of view must be projected before thisCourt.?Trust God MissionariesInterveners – IA No. 7/2010The applicant is a registered charitable trust having the main aim to preserve and protect life for humanity and earth and takes support from human rights, social and religious organisations, such as CBCI, NCCI and KCBC, etc. The applicant claims to be vitally interested in the outcome of the appeal and is an affected party.?Minna Saran & Others (Parents of LGBT Children)Interveners – IA No. 8/2010The applicants are parents of lesbian, gay, bisexual and transgender persons from different professional, socio-cultural backgrounds and different regions of India. They have a direct and immediate stake in the proceedings and are necessary and proper parties. No prejudice will be caused to the petitioners if the applicants are impleaded but the applicants will sufferer irreparable harm and damage as criminalisation not only affects the LGBT persons but also their families. Their struggles of having to understand sexuality at odds with Section 377 IPC have resulted in accepting theirsexuality and they are acutely aware of the social stigma prejudice, myths and stereotypes that surround the subject of homosexuality in India.?Dr. Shekhar Seshadri & Others (Professor of Psychiatry at the NationalInstitute of Mental Health and Neuro Sciences, Bangalore)Interveners - IA No. 9/2010The Applicants are mental health professionals who have been practising as psychiatrists, clinical psychologists and behavioral psychologists in the field of mental health in reputed medical institutions throughout India. They claim to have had considerable expertise in addressing the mental health concerns of Lesbian, Gay, Bisexual and Transgender persons. The Applicants submit that sexual orientation is an immutable characteristic and is present at birth.?Nivedita Menon & Others (Professor in Political Thought, Jawaharlal NehruUniversity)Interveners - I.A. No. 10/2010The Applicants are academicians who wish to contribute to the debate on the issues raised by the judgment and to draw attention to the mental distress caused to the LGBT community.?Ratna Kapur & Ors.Interveners –IA No. 13/2011The applicants are law professors, teachers and research associates with Jindal Global Law School working in different fields of law such as jurisprudence, human rights, sexuality studies and law, criminal justice, and cultural studies and law, and feminist legal theory. They are concerned with the correct interpretation of statutes and the constitutional validity of Section 377 IPC.SLP (C) No. 24334/2009DelhiCommission for Protection of Child RightsPetitioner (Not parties before the High Court)The petitioner has been constituted under the Commissions for Protection of Child Rights Act, 2005 read with GoI MHA notification dt. 15.1.2008. Under Sec 13(1j) the Commission is empowered to take suo moto notice of deprivation and violation of child rights, non implementation of laws providing for protection and development of children, and non compliance of policy decisions, guidelines or instructions aimed at mitigating hardship and ensuring welfare of children and providing relief. Its functions include: study and monitor matters relating to constitutional and legal rights of children; examine and review safeguards for protection of child rights and effective implementation of the same; review existing law and recommend amendments; look into complaints of taking suo moto action in cases involving violation of child rights; monitor implementation of laws; present reports to the Central Government. It is the moral duty of the Commission to protect the best interest of children and provide them with an atmosphere where the freedom and dignity of all children is safe and a child may bloom without any fear of abuse, exploitation and deprivation.CC No. 13105/2009Ram MurtiPetitioner (not party before the High CourtHe is a citizen of India and has a duty to report if something illegal is happening.SLP (C) No. 22267/2009B.P. SinghalPetitioner (Respondent 7– Intervenerbefore the High Court?SLP (C) No. 34187/2009B. Krishna BhatPetitioner (not a party before the High Court)The petitioner is a citizen of India and a public spirited individual, social worker and environmentalist who believes in the Rule of Law and has successfully prosecuted a number of PILs in Karnataka High Court, other High Courts and theSupreme Court on issues of protection of green belt, illegal extraction of monies from citizens of Bangalore, property taxes, illegal mining, stray dog menace, development of tanks, shifting of slaughter house, caste based reservation, etc.SLP (C) No. 286/2010Joint Action Council, KannurPetitioner (respondent 6– Intervener before the High Court)?SLP (C) No. 872/2010The Tamil Nadu Muslim MunnetraKazhagamPetitioner (not a party before the High Court)The petitioner is a registered trust working for the betterment of the poor and downtrodden in general and for those belonging to the minority Muslim community in particular. It is a mass based voluntary organisation of Muslims of Tamil Nadu functioning since 1955 in Tamil Nadu. The president appeared before the UN Minority Rights Working Group and the organisation has set up a Tsunami Relief Fund of Rs 7 million. It has worked against spread of AIDS and has worked in blood donation and has been given two awards by the Tamil Nadu State AIDS Control Board.SLP (C) No. 873/2010RazaAcademyPetitioner (not a party before the High Court)The petitioner is an organization working for welfare of the general public and it has done tremendous work in public interest.SLP (C) No. 36216/200Krantikati Manuvadi Morcha Party & Anr.Petitioner (not a party before the High Court)Krantikari Manuwadi Morcha (Revolutionary Manuist Front), is a Hindutva political organisation in India. It is one of the registered unrecognized political parties in India. The president of KMM is Ram Kumar Bhardwaj, grandson of freedom fighter Rudra Dutt Bhardwaj.CC No. 19478/2009Utkal ChristianCouncil rep. by Secretary Miss Jyotsna Rani PatroPetitioner (not a party before the High Court)Note: There is no information on the petitioner in the SLP.CC No. 425/2010All India MuslimPersonal Law BoardPetitioner (not a party before the High Court)The petitioner is a registered society established to protect and preserve Muslim Personal Laws. It strives to uphold the traditional values and ethos of the Muslimcommunity and promotes essential values of Islam and also a national ethos among Muslims. The members of the society are religious scholars (ulemas), Muslim intellectuals and professionals from different disciplines.SLP (C) No. 20913/2009Sh. S.K. TijarawalaPetitioner (not a party before the High Court)Petitioner is spokesperson of Yoga Guru Swami Ramdev Ji is running a social welfare trust in the name ofli Yogpeeth Trust. Petitioner is an eminent social worker and writer interested in protecting culturalvalues of the Indian society.SLP (C) No. 20914/2009Apostolic Churches Alliance rep. by its bishop Sam T. VarghesePetitioner (not a party before the High Court)With a desire to promote unity, build relationships, and see increased cooperation amongst Churches, a few pastors from growing independent churches in Kerala have come together and formed a body called the(ACA). The Alliance has been formed with the primary purpose of addressing spiritual, legal or any other kind of issue which may be relevant to the Churches at any given time or place. The ACA is a registered body with nine Pastors as members of the Core Group and is in its early stages of growth. Pastor Sam T. Varghese of Life Fellowship, Trivandrum, serves asits General Overseer.SLP (C) No. 25364/2009Prof. Bhim SinghPetitioner (not a party before the High Court)?CC No. 14042/2009Sanatan Dharam Pritinidhi Sabha Delhi (Registered)Petitioner (not a party before the High Court)?

Reasoning:
The principle was succinctly enunciated by a Constitutional Bench in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538 in the following(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminatinglegislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality. This is founded on the premise that the legislature, being a representative body of the people and accountable to them is aware of their needs and acts in their best interest within the confines of the Constitution. There is nothing to suggest that this principle would not apply to pre-Constitutional laws which have been adopted by the Parliament and used with or without amendment. If no amendment is made to a particular law it may represent a decision that the Legislature has taken to leave the law as it is and this decision is no different from a decision to amend and change the law or enact a new law. In light of this, both pre and post Constitutional laws are manifestations of the will of the people of India through the Parliament and are presumed to beNo.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377view 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.