While declaring illegal homosexuality or unnatural sex between two consenting adults, the Supreme Court has noted that after the adoption of the Indian Penal Code in 1950, 30 amendments were made to the statute. The most recent, made in 2013, specifically deals with sexual offences, a category to which Section 377 belongs, but it has not deleted this provision from the statute.
In its 98-page judgment, a Bench of Justices G.S. Singhvi and S.J. Mukhopadaya said the 172nd Law Commission in its report “specifically recommended deletion of Section 377 of the IPC, and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, undisputedly the representative body of the people of India, has not thought it proper to delete the provision.”
The Bench said, “Such a conclusion is further strengthened by the fact that despite the decision of the Union of India not to challenge the order of the Delhi High Court [which decriminalise homosexuality], Parliament has not made any amendment to the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import. It is, therefore, apposite to say that unless a clear constitutional violation is proved, this court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of society having changed as regards the legitimacy of its purpose and its need.”
The Bench said: “The IPC, along with Section 377 as it exists today, was passed by the Legislative Council, and the Governor-General assented to it on 6. 10.1860. The understating of acts which fall within the ambit of Section 377 has changed from non-procreative to imitative of sexual intercourse to sexual perversity. The writ petition filed by the Naz Foundation was singularly laconic inasmuch as except giving a brief detail of the work being done by it for HIV prevention, targeting the MSM (men having sex with men) community, it miserably failed to furnish particulars of incidents of discriminatory attitude exhibited by the state agencies towards sexual minorities... It has also not furnished the particulars of the cases involving harassment of and assault on sexual minorities by the public and public authorities. Only in the affidavit filed on behalf of the Ministry of Health and Family Welfare, Department of AIDS Control, it has been averred that the estimated HIV prevalence among FSW (female sex workers) is 4.60% to 4.94%, among MSM 6.54% to 7.23% and IDU (injecting drug users) 9.42% to 10.30%. The total population of MSM, as in 2006, was estimated to be 25,00,000 and 10% of them are at risk of HIV.”
The Bench said: “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”
The Bench said: “The courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would accept an interpretation, which would be in favour of constitutionality rather than the one which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the courts. The courts would preferably put into service the principle of ‘reading down’ or ‘reading into’ the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this court in its various pronouncements, while the High Court and this court are empowered to review the constitutionality of Section 377 and strike it down to the extent of its inconsistency with the Constitution, self-restraint must be exercised and the analysis must be guided by the presumption of constitutionality.”