CDS (I) 2022 General Knowledge · Question 78 of 120

Correct — D, Naz Foundation vs. Government of NCT of Delhi and others. That is the case in which a court took up the precise question the stem quotes. The Naz Foundation, a Delhi trust working on HIV and sexual health, filed a public interest petition asking whether Section 377 of the Indian Penal Code, in so far as it criminalised consensual sexual acts between adults in private, violated Articles 21, 14 and 15. On 2 July 2009 a Division Bench of the Delhi High Court held that it did — that the provision offended the dignity and privacy protected by Article 21, that it created an unreasonable classification under Article 14, and that discrimination on the ground of sexual orientation is a form of discrimination on the ground of sex within Article 15 — and read the section down so that it no longer covered consensual adult conduct. The other three cases are landmarks about entirely different provisions, which is what the option list is testing.

• (a)Shreya Singhal vs. Union of India — Shreya Singhal v. Union of India, 2015, struck down Section 66A of the Information Technology Act, 2000 as an unconstitutional restriction on free speech under Article 19(1)(a). It is a speech case, not a Section 377 case.
• (b)Vishakha vs. State of Rajasthan — Vishaka v. State of Rajasthan, 1997, laid down binding guidelines against sexual harassment of women at the workplace in the absence of legislation; those guidelines were later replaced by the Act of 2013. A different subject entirely.
• (c)Shayara Bano vs. Union of India — Shayara Bano v. Union of India, 2017, is the triple talaq judgment, in which the Supreme Court set aside talaq-e-biddat. It concerns Muslim personal law and not Section 377.

Section 377 of the Indian Penal Code, drafted in 1860, punished carnal intercourse against the order of nature. Its constitutional history ran in three stages. The Delhi High Court read it down in Naz Foundation in 2009. The Supreme Court reversed that in Suresh Kumar Koushal v. Naz Foundation in 2013, restoring the section and saying that the High Court's reasoning was constitutionally unsustainable. A five-judge bench then overruled Koushal in Navtej Singh Johar v. Union of India in 2018, holding once more that Section 377 could not apply to consensual acts between adults.

The stem is worded with unusual care and rewards reading it exactly. It asks where the issue whether Section 377 is violative of Articles 21, 14 and 15 was decided, and the three Articles it names are the trio the Delhi High Court framed in 2009. The most common wrong instinct is to reach for the final word on the subject, which is Navtej Singh Johar of 2018 — but that case is not on the list, and Naz Foundation is the one that put the question in these terms. A student should hold the sequence rather than a single case: 2009 Delhi High Court, 2013 Supreme Court reversal, 2018 Supreme Court reversal of the reversal. One present-day change is worth noting. The Indian Penal Code has itself been replaced by the Bharatiya Nyaya Sanhita, 2023, in force from 1 July 2024, which carries no provision corresponding to Section 377; the litigation described here is therefore about a statute that no longer exists in that form.

• Naz Foundation v. Government of NCT of Delhi was decided by the Delhi High Court on 2 July 2009.
• The Court held Section 377 IPC, so far as it criminalised consensual sexual acts of adults in private, to violate Articles 21, 14 and 15.
• Suresh Kumar Koushal v. Naz Foundation, 2013, set that judgment aside and restored Section 377.
• Navtej Singh Johar v. Union of India, 2018, a five-judge bench, overruled Koushal and again removed consensual adult conduct from the section's reach.
• The Indian Penal Code was replaced by the Bharatiya Nyaya Sanhita, 2023, which came into force on 1 July 2024.

• Answering Navtej Singh Johar out of habit; that case is not among the options and the stem points to the 2009 framing.
• Assuming the 2009 judgment settled the law; it was set aside in 2013 and restored only in 2018.
• Confusing Shreya Singhal, a free-speech case on Section 66A, with the Section 377 litigation.

As a case-to-issue match, as which court decided a named case, or as a chronology of the Section 377 litigation.

• practice — not a real PYQ

  Section 66A of the Information Technology Act, 2000 was struck down by the Supreme Court in which one of the following cases?

  • (a)Shreya Singhal v. Union of India
  • (b)Shayara Bano v. Union of India
  • (c)Naz Foundation v. Government of NCT of Delhi
  • (d)Vishaka v. State of Rajasthan

  Answer(a) Shreya Singhal v. Union of India, 2015 — the provision was held to be an unconstitutional restriction on free speech.

• practice — not a real PYQ

  In which one of the following cases did a five-judge bench of the Supreme Court hold that Section 377 IPC could not apply to consensual sexual acts between adults?

  • (a)Suresh Kumar Koushal v. Naz Foundation
  • (b)Navtej Singh Johar v. Union of India
  • (c)K. S. Puttaswamy v. Union of India
  • (d)Indian Young Lawyers Association v. State of Kerala

  Answer(b) Navtej Singh Johar v. Union of India, 2018 — it overruled the 2013 Koushal judgment.