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Gay sex illegal, rules SC
Says Section 377 constitutionally valid; Parliament free to drop it; triggers outrage
R Sedhuraman
Legal Correspondent

What the SC said Section 377 constitutional; gay, lesbian sex is a criminal offence Parliament free to drop Section 377 Homosexuals account for miniscule fraction of population HC verdict set aside The Delhi HC had, on July 2, 2009, de-criminalised such acts by reading down Section 377. It ruled that criminalising consensual sexual acts of adults in private was against Articles 21, 14 and 15 which guaranteed fundamental rights to personal liberty, equality and non-discrimination to the people. The SC said the High Court had relied on overseas verdicts which can't be applied to Indian laws

New Delhi, December 11
The Supreme Court today restored the Constitutional validity of Section 377 of the IPC, under which homosexual acts are a criminal offence punishable with life term, noting that Parliament had chosen to retain it despite amending the IPC as many as 30 times since 1950.

The Delhi High Court had, on July 2, 2009, de-criminalised such acts by reading down Section 377 and ruling that criminalising consensual sexual acts of adults in private was against Articles 21, 14 and 15 which guaranteed fundamental rights to personal liberty, equality and non-discrimination to the people.

An apex court Bench comprising Justices GS Singhvi, who retired today, and SJ Mukhopadhaya set aside the HC verdict, pointing out that the HC had gone by several judgments of other countries in its anxiety to protect the so-called rights of LGBT (lesbian, gay, bi-sexual and transgender) persons and to declare that Section 377 violated the right to privacy, autonomy and dignity.

"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 SC ruled. The judiciary should exercise "self-restraint" while striking down any legal provision and its analysis of any law "must be guided by the presumption of constitutionality," it explained.

Section 377 had come up for debate repeatedly and the Law Commission in its 172nd report had recommended its deletion.

Laws relating to sexual offences were amended only this year in the wake of the December 2012 Delhi gang rape case but Parliament "has chosen not to amend the (377) law or revisit. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision," the SC explained.