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SC off activism, headache for House

New Delhi, Dec. 11: The Supreme Court today re-criminalised gay sex, sending shock waves that overshadowed a bigger and harder picture that the country has been compelled to deal with.

The Indian Parliament is now free to delete Section 377 of the Indian Penal Code — a freedom that did not appear to have enthused most elected representatives in the immediate aftermath of the verdict.

Section 377, a relic of the British Raj that the UK itself has done away with, criminalises “carnal intercourse against the order of nature with any man, woman or animal”. Such offences are punishable with jail terms ranging from 10 years to life.

The section does not automatically make a homosexual a criminal but sexual relations between homosexuals — and “unnatural” intercourse between persons of all orientations — do.

In 2009, Delhi High Court had declared a part of Section 377 as unconstitutional, which meant a consensual sexual act of adults in private was no longer an offence. That order was overturned by the Supreme Court today, which essentially re-criminalises “unnatural” sexual acts.

A two-judge bench of Justices G.S. Singhvi and S.J. Mukhopadhyaya passed the judgment on a batch of appeals filed by individuals and religious outfits challenging the Delhi High Court order on the ground that it affects religious sentiments.

As a storm of criticism broke out, Justice Singhvi, who pronounced the verdict on his last day in office, said: “Please read the judgment first.”

The judgment says: “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 Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity.”

However, the court added: “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.”

In court, the Centre, which is a divided house on the question, had supported decriminalisation of gay sex. The Delhi court order had “decriminalised” gay sexual relations without formally legalising it, which the government realised was a cosy arrangement that did not demand any decisive action from the executive.

But the government has now been yanked out of that comfort zone with the Supreme Court putting the ball in the court of the legislature. In fact, the court cited Parliament’s inaction on deleting the section as one of the reasons it upheld the maintainability of Section 377.

In the initial burst of dismay, many wondered whether the court, which had often been accused of encroaching the legislature’s domain, could not have struck down the section and ended the debate quickly. Some NGOs have decided to seek a review of the judgment.

But others felt it was in the fitness of things that the House of the people has been set a test on one of the most divisive issues of modern times.

The following are some of the reasons cited by the Supreme Court for ruling that Section 377 “does not suffer from any constitutional infirmity”.

‘200 in 150 years’

Justice Singhvi said statistics furnished by the Centre, NGOs and others revealed that only a minuscule 200-odd persons have been booked for the offence in the last 150 years. Hence, by no yardstick could it be construed as a misuse of the provision by law-enforcing authorities.

(But activists have repeatedly said police themselves are the worst offenders and they are hardly expected to record such crimes. Naz Foundation has pointed out that the section serves as a weapon for police abuse in the form of detention, questioning, extortion, harassment, forced sex and squeezing out hush money.)

Last resort

The apex court said: “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.”

The court ruled that in its opinion the alleged police harassment and intimidation “is neither mandated by the section nor condoned by it”.

“It might be a relevant factor for the legislature to consider while judging the desirability of amending Section 377,” the bench said.

Parliament inaction

The court pointed out that the Law Commission had specifically recommended deletion of the section. “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, 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 importance,” the court said.


The court said: “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.” The section has merely defined a particular offence and prescribed punishment, which can be awarded if a person is found guilty after trial, the court added

Reliance on others

According to the apex court, 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 apex court said.

“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,” the court added.


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