Sec 377 of the Indian Penal Code – Entire Judgement

Sec 377 of the Indian Penal Code

Naz foundation(petitioner) challenged the constitutional validity of sec 377 of ipc 1860 vide a writ petition as a pil. The writ petition was dismissed by the High Court in 2004 “on the ground that there is no cause of action in favour of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation” However the Supreme Court said aside the order and the matter was presented in the High Court.

The challenge is founded on the plea that Section 377 IPC, on account of it covering sexual acts between consenting adults in private infringes the fundamental rights guaranteed under Articles 14, 15, 19 & 21 of the Constitution of India. Limiting their plea, the petitioners submit that Section 377 IPC should apply only to non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors.

Sec 377 of the Indian Penal Code states: 377. Unnatural offences.– Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[ imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section Respondents include Government of NCT of Delhi and others and Ministry of Home Affairs and Ministry of Health & Family Welfare, National Aids Control Organisation, Delhi State Aids Control Society. Commissioner of Police, and other individuals and NGOs.

HISTORY OF THE LEGISLATION

Sodomy has been a crime right from the 12th century under the Common Law in England, infact the texts then prescribed that sodomites be burnt alive and later sodomites were penalized by being hanged under the Buggery Act 1533. Buggery Act 1533, defined buggery as an unnatural sexual act against the will of God and man. This was later defined by the courts to include only anal penetration and bestiality.[3] The Act remained in force until it was repealed and replaced by the Offences against the Person Act 1828, and buggery would remain a capital offence until 1861.

Indian Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India. Section 377 IPC is contained in Chapter XVI of the IPC titled “Of Offences Affecting the Human Body”

In India during the colonial period, Eunuchs (hijras) were criminalized because of their identity. In 1871, the British had enacted the Criminal tribes Act to keep a look out on tribes and communities who “’were addicted to the systematic commission of non-bailable offences” and the mere belonging to one of those tribes or communities was considered as an individual crime.

As stated in the Judgement of the Delhi High Court, “In 1897, this Act was amended to include eunuchs. According to the amendment the local government was required to keep a register of the names and residences of all eunuchs who are “reasonably suspected of kidnapping or castrating children or of committing offences under Section 377 IPC. Commenting on the Criminal Tribes Act in a speech made in 1936, Pt. Jawaharlal Nehru said: “I am aware of the monstrous provisions of the Criminal Tribes Act which constitute a negation of civil liberty… an attempt should be made to have the Act removed from the statute book. No tribe can be classed as criminal as such and the whole principle as such is out of consonance with civilized principles of criminal justice and treatment of offenders…” [Dalip D'Souza, Branded by law: Looking at India's Denotified Tribes, Penguin, New Delhi, 2001: page 57]

While this Act has been repealed, the attachment of criminality to the hijra community still continues.

JUDICIAL INTERPRETATION OF SEC 377 OF IPC

The expression “carnal intercourse” used in Section 377 of IPC is different in relation to the expressions “sexual intercourse” used in Sections 375 (rape) and 497 (adultery) of the IPC. According to the Oxford Dictionary, “carnal” means “of the body or flesh; worldly” and “sensual, sexual”.

Consent is not regarded as a defense to an offence under Section 377 IPC and no distinction regarding age is made in the section and earlier oral sex was not included in Sec 377 however Later, Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices

“In Khanu v. Emperor, AIR 1925 Sind 286, Kennedy A.J.C. held that “section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings…. [if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the POSSIBILITY OF CONCEPTION of human beings, which in the case of coitus per os is impossible.”[page 286]

In Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323, it was observed that Section 377 IPC implied “sexual perversity”. Dictionary defines sexual perversity as any of a group of psychosexual disorders characterized by sexual fantasies, feelings, or activities involving a nonhuman object, a nonconsenting partner such as a child, or pain or humiliation of oneself or one’s partner.

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.

THE PETITIONERS CLAIMS:

The petitioner NGO claims enforcement of Section 377 IPC as per which the basic fundamental right of gay community, MSM or trans-gendered individuals or LGBT will be denied and they will be subject to abuse, harrasement, assault from public and public authorities. Also, HIV/AIDS prevention efforts would be impaired because of the discriminatory attitudes exhibited by state agencies if this section was enforced.

“By criminalising private, consensual same-sex conduct, Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities; which consequently drive the activities of gay men and MSM, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts. Section 377 IPC thus creates a class of vulnerable people that is continually victimised and directly affected by the provision.”

Also, Earlier, fields of psychiatry and psychology would treat homosexuality as a disease, however that’s no longer the case and it is now deeply held as a core part of the identities of individuals. In 1992, the World Health Organisation removed homosexuality from its list of mental illnesses

SECTION 377 VIOLATES ART.21 – RIGHT TO LIFE AND LIBERTY

The petitioner submits that while right to privacy is implicit in the right to life and liberty and guaranteed to the citizens, in order to be meaningful, the pursuit of happiness encompassed within the concepts of privacy, human dignity, individual autonomy and the human need for an intimate personal sphere require that privacy – dignity claim concerning private, consensual, sexual relations are also afforded protection within the ambit of the said fundamental right to life and liberty given under Article 21. It is averred that no aspect of one’s life may be said to be more private or intimate than that of sexual relations, and since private, consensual, sexual relations or sexual preferences figure prominently within an individual’s personality and lie easily at the core of the “private space”, they are an inalienable component of the right of life. Based on this line of reasoning, a case has been made to the effect that the prohibition of certain private, consensual sexual relations (homosexual) provided by Section 377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right to life and liberty under Article 21.

SECTION 377 VIOLATES ART.14 – RIGHT TO EQUALITY

Further, it has been submitted on behalf of the petitioner that Section 377 IPC’s legislative objective of penalizing “unnatural sexual acts” has no rational nexus to the classification created between procreative and nonprocreative sexual acts, and is thus violative of Article 14 of the Constitution of India.

SECTION 377 VIOLATES ART.15 – PROHIBITION OF DISCRIMINATION ON THE GROUND OF RELIGION, RACE, CASTE, SEX, PLACE OF BIRTH OR ANT OF THEM.

The petitioner argues that the expression “sex” under Art.15 cannot be restrictive to “gender” but includes “sexual orientation” and thus equality on the basis of sexual orientation is implied in the said fundamental right against discrimination.

“Section 377′s legislative objective is based upon stereotypes and misunderstanding that are outmoded and enjoys no historical or logical rationale which render it arbitrary and unreasonable.” It is arbitrary as it unfairly targets the homosexuals or gay community. It also unreasonably and unjustly infringes upon the right of privacy, both zonal and decisional. It also conveys the message that homosexuals are of less value than other people, demeans them and unconstitutionally infringes upon their right to live with dignity.

SECTION 377 VIOLATES ARTICLE 19 (1) (a) – (d) – PROTECTION OF CERTAIN RIGHTS REGARDING FREEDOM OF SPEECH, TO FORM ASSCOIATIONS AND UNIONS ETC.

“Section 377 IPC curtails or infringes the basic freedoms guaranteed under Article 19 (1) (a) (b) (c) & (d); in that, an individual’s ability to make personal statement about one’s sexual preferences, right of association/assembly and right to move freely so as to engage in homosexual conduct are restricted and curtailed.”

“The submission of Mr. Anand Grover, Sr. Advocate, appearing for the petitioner, and Mr. Shyam Divan, Sr. Advocate, appearing for respondent No.8, Public disapproval or disgust for a certain class of persons can in no way serve to uphold the constitutionality of a statute. In any event, abundant material has been placed on record which shows that the Indian society is vibrant, diverse and democratic and homosexuals have significant support in the population.”

In the reply affidavit filed on behalf of NACO, it has been submitted that the report of the Expert Group on Size Estimation of Population with High Risk Behaviour for NACPIII Planning, January 2006 estimated that there are about 25 lakh MSM (Men having sex with men). The National Sentinel Surveillance Data 2005 shows that more than 8% of the population of MSM is infected by HIV while the HIV prevalence among the general population is estimated to be lesser than 1%. Given the high vulnerability of MSM to HIV infection, NACO has developed programmes for undertaking targeted interventions among them. These projects are implemented by NGOs with financial support from NACO. Presently 1,46,397 MSM (6%) are being covered through 30 targeted interventions. Under the targeted intervention projects, the objectives are to:

a. reduce number of partners and by bringing about a change in their behaviour;

b. reduce their level of risk by informing them about and providing access to condoms;

c. providing access to STD services.

According to the submissions of NACO, those in the High Risk Group are mostly reluctant to reveal same sex behavior due to the fear of law enforcement agencies, keeping a large section invisible and unreachable and thereby pushing the cases of infection underground making it very difficult for the public health workers to even access them. It illustrates this point by referring to the data reflected in the National Baseline Behaviour Surveillance Survey (NBBSS of 2002) which indicates that while 68.6% MSM population is aware about the methods of preventing infection, only 36% of them actually use condoms.

NACO has further submitted that enforcement of Section 377 IPC against homosexual groups renders risky sexual practices to go unnoticed and unaddressed inasmuch as the fear of harassment by law enforcement agencies leads to sex being hurried, particularly because these groups lack ‘safe place’, utilize public places for their indulgence and do not have the option to consider or negotiate safer sex practices. It is stated that the very hidden nature of such groups constantly inhibits/impedes interventions under the National AIDS Control Programme aimed at prevention. Thus NACO reinforces the plea raised by the petitioner for the need to have an enabling environment where the people involved in risky behaviour are encouraged not to conceal information so that they can be provided total access to the services of such preventive efforts.

To illustrate the magnitude and range of exploitation and harsh and cruel treatment experienced as a direct consequence of Section 377 IPC, particulars of certain incidents are drawn from different parts of the country. In an instance referred to as

“Lucknow incident – 2002” in the report titled ‘Epidemic of Abuse : Police Harassment of HIV/AIDS Outreach Workers in India’ published by Human Rights Watch

The police during investigation of a complaint under Section 377 IPC picked up some information about a local NGO (Bharosa Trust) working in the area of HIV/AIDS prevention and sexual health amongst MSMs raided its office, seized safe sex advocacy and information material and arrested four health care workers. Even in absence of any prima facie proof linking them to the reported crime under Section 377 IPC, a prosecution was launched against the said health care workers on charges that included Section 292 IPC treating the educational literature as obscene material. The health workers remained in custody for 47 days only because Section 377 IPC is a non-bailable offence.

Then there is a reference to ‘BANGALORE INCIDENT, 2004′ bringing out instances of custodial torture of LGBT persons.

The victim of the torture was a hijra (eunuch) from Bangalore, who was at a public place dressed in female clothing. The person was subjected to gang rape, forced to have oral and anal sex by a group of hooligans. He was later taken to police station where he was stripped naked, handcuffed to the window, grossly abused and tortured merely because of his sexual identity.

Many more instances were provided clearly establishing that the continuance of Section 377 IPC on the statute book operate to brutalise a vulnerable, minority segment of the citizenry for no fault on its part.

The petitioner’s case is that public morality is not the province of criminal law and Section 377 IPC does not have any legitimate purpose. Section 377 IPC makes no distinction between acts engaged in the public sphere and acts engaged in the private sphere. It also makes no distinction between the consensual and non-consensual acts between adults. Consensual sex between adults in private does not cause any harm to anybody. Thus it is evident that the disparate grouping in Section 377 IPC does not take into account relevant factors such as consent, age and the nature of the act or the absence of harm caused to anybody.

IN RESPONSE:

The Director (Judicial) in the Ministry of Home Affairs, Government of India, in his affidavit, seeks to justify the retention of Section 377 IPC on the statute book broadly on the reason that it has been generally invoked in cases of allegation of child sexual abuse and for complementing lacunae in the rape laws and not mere homosexuality.

This penal clause has been used particularly in cases of assault where bodily harm is intended and/or caused. It has been submitted that the impugned provision is necessary since the deletion thereof would well open flood gates of delinquent behaviour and can possibly be misconstrued as providing unfettered licence for homosexuality. Proceeding on the assumption that homosexuality is unlawful, it has been submitted in the affidavit that such acts cannot be rendered legitimate only because the person to whose detriment they are committed has given consent to it.

Indian society by and large disapproved of homosexuality, which disapproval was strong enough to justify it being treated as a criminal offence even where the adults indulge in it in private. Union of India submits that law cannot run separately from the society since it only reflects the perception of the society.

Union of India argues that Indian society is yet to demonstrate readiness or willingness to show greater tolerance to practices of homosexuality. Making out a case in favour of retention of Section 377 IPC in the shape it stands at present, Union of India relies on the arguments of public morality, public health and healthy environment claiming that Section 377 IPC serves the

Learned ASG (ADDITIONAL SOLICITOR GENERAL) further submits that Section 377 IPC is not discriminatory as it is gender neutral. If Section 377 IPC is struck down there will be no way the State can prosecute any crime of nonconsensual carnal intercourse against the order of nature or gross male indecency. He hastens to add that Section 377 IPC is not enforced against homosexuals and there is no need to “read down” the provisions of Section 377 IPC.

Learned ASG further contends that spread of AIDS is curtailed by Section 377 IPC and de-criminalisation of consensual – same – sex acts between adults would cause a decline in public health across society generally since it would foster the spread of AIDS. He submits that Section 377 IPC does not impact upon the freedom under Article 19(1) as what is criminalised is only a sexual act.

People will have the freedom to canvass any opinion of their choice including the opinion that homosexuality must be decriminalised. He, therefore, submits that the Section 377 IPC is constitutionally valid.

The submission of ASG that Section 377 IPC does not in any manner come in the way of MSM accessing HIV/AIDS prevention material or health care intervention is in contrast to that of NACO.

As mentioned earlier, NACO confirms the case of the petitioner that enforcement of Section 377 IPC contributes adversely; in that, it leads to constantly inhibiting interventions through the National AIDS Control Programme undertaken by the said agency. It needs to be noted here that Government of India is a party to the declared commitment to address the needs of those at greater risk of HIV including amongst High Risk Groups, such as MSM [See United Nations General Assembly Declaration of Commitment on HIV/AIDS, 2001, at para 64; NACO, MoHFW, National AIDS Control Programme Phase III (2007- 2012) Strategy and Implementation Plan, November 2006, at pages 18-32].

The submission of ASG that Section 377 IPC helps in putting a brake in the spread of AIDS and if consensual same-sex acts between adults were to be de-criminalised, it would erode the effect of public health services by fostering the spread of AIDS is completely unfounded since it is based on incorrect and wrong notions. Sexual transmission is only one of the several factors for the spread of HIV and the disease spreads through both homosexual as well as heterosexual conduct. There is no scientific study or research work by any recognised scientific or medical body, or for that matter any other material, to show any causal connection existing between decriminalisation of homosexuality and the spread of HIV/AIDS.

HIGH COURT JUDGEMENT:

In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the Court must make every effort to uphold the constitutional validity of a statute, even if that requries giving a strained construction or narrowing down its scope. Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise. 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.  Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately.

In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

The High Court declared that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion.

SUPREME COURT JUDGEMENT:

The Supreme Court first assessed the factors to see if the High Court or Supreme Court can declare a law void and the following conclusions were drawn:

(i) The High Court and Supreme Court of India are empowered to declare as void any law, whether enacted prior to the enactment of the Constitution or after. Such power can be exercised to the extent of inconsistency with the Constitution/contravention of Part III.

(ii) There is a presumption of constitutionality in favour of all laws, including pre-Constitutional laws as the Parliament, in its capacity as the representative of the people, is deemed to act for the benefit of the people in light of their needs and the constraints of the Constitution.

(iii) The doctrine of severability seeks to ensure that only that portion of the law which is unconstitutional is so declared and the remainder is saved. This doctrine should be applied keeping in mind the scheme and purpose of the law and the intention of the Legislature and should be avoided where the two portions are inextricably mixed with one another.

(iv) The court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable.

Applying the afore-stated principles to the case in hand, we deem it proper to observe that while the High Court and this Court are empowered to review the constitutionality of Section 377 IPC 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.

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. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in 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 the society having changed as regards the legitimacy of its purpose and its need.

It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.

Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.

While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders 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.

The vagueness and arbitrariness go to the root of a provision and may render it unconstitutional, making its implementation a matter of unfettered discretion. This is especially so in case of penal statues. However while analyzing a provision the vagaries of language must be borne in mind and prior application of the law must be considered.

The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases.”

We may now deal with the issue of violation of Article 21 of the Constitution. In Mr. X v. Hospital Z (1998) 8 SCC 296, this court observed:

“25. As one of the basic Human Rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.

26. Right of Privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, Doctorpatient relationship, though basically commercial, is, professionally, a matter of confidence and, therefore. Doctors are morally and ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of the Right of Privacy which may sometimes lead to the clash of person’s “right to be let alone” with another person’s right to be informed.

27. Disclosure of even true private facts has the tendency to disturb a person’s tranquility. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the Right of Privacy is an essential component of right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.

NAZ FOUNDATION and others 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 377 IPC. The law in this regard has been discussed and clarified succinctly in:

Sushil Kumar Sharma v. Union of India and Ors. (2005) 6 SCC 281 as follows:

“11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand” (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.) : [1956]29ITR349(SC) .

14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. : 1997(89)ELT247(SC) , a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable.

15. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat MANU/SC/0567/2004 : 2004CriLJ3860 . Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. : [2002]SUPP5SCR666 and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors. [2002]255ITR147(SC) , while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.”

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 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.

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.

While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.

 

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