Also see: Full text of the judgement
In a big blow to the LGBT community, the Supreme Court today set aside a landmark Delhi High Court judgement decriminalising gay sex and threw the ball into Parliament's court for amending law, a verdict that came under attack as being "medieval and regressive".
The judgement of the two-judge bench headed by Justice G S Singhvi revives the penal provision making gay sex an offence punishable with life imprisonment in a setback to people fighting a battle for recognition of their sexual preferences.
The much-awaited verdict, reversing the four-year-old High Court judgement, drew sharp criticism from gay rights activists, constitutional experts, including Additional Solicitor General Indira Jaising, and Bollywood celebrities who termed it a "black day" and a "lost opportunity" for the apex court to expand the constitutional values.
Government reacted cautiously to the apex court nudge saying it it would "exercise" the prerogative of making laws.
Upholding the constitutional validity of Section 377 of IPC relating to "unnatural sex", a bench also comprising S J Mukhopadhya, said the provision cannot be struck down merely on the apprehension of its misuse or changing perception of society.
"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 the society having changed as regards the legitimacy of its purpose and its need," it said.
The bench, however, put the ball in the court of Parliament to decide on "the desirability" and "propriety" of doing away with the penal provision.
The bench allowed the appeals filed by various social, religious and child rights organisations challenging the high court verdict on the ground that gay sex is against the cultural and religious values of the country.
In its 98-page verdict, the court said that gay right activists "miserably failed" to furnish details of alleged discrimination by the state agencies and a few cases of misuse of penal provision cannot be a ground to strike it down.
"It (NGO Naz Foundation) miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them. It has also not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities.
"While reading down Section 377 IPC, the High Court overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans genders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution," it said.
The court cited the non-repealing of the penal provision by Parliament during the amendments in the IPC undertaken after the December 16 gang rape case.
"After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs.
"The 172nd Law Commission Report specifically recommended deletion of that section 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, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision," it said.
The apex court also said that foreign judgements on the controversial issues cannot be applied "blindfolded" in India for scrapping the penal provision against gay sex.
"In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgements of other jurisdictions.
"Though these judgements 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," it said.
Referring to various reported judgements on Section 377, the apex court said no uniform test can be culled out to classify acts as 'carnal intercourse against the order of nature'.
In our opinion the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed.
"All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analysing the manner in which the section has been interpreted.
"We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section," it said.
It said that Section 377 IPC would apply irrespective of age and consent.
Also see: Full text of the judgement
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