Re-criminalization of Homosexuality: Constitutional Validity of Section 377 of Indian Penal Code in light of Articles 21, 14 and 15 of the Constitution
Bench : G.S. SINGHVI, SUDHANSU JYOTI MUKHOPADHAYA.
CIVIL APPEAL NO.10972 OF 2013 (Arising out of SLP (C) No.15436 of 2009)
Supreme Court overturned the decision of Delhi High Court in a Writ Petition filed against striking of Section 377 of the India Penal Code by Delhi High Court. Supreme Court in its decisions clearly laid that section 377 IPC shall not be struck down and that the section is not violative of Article 21, 14 and 15 of the Indian Constitution. Supreme Court quite elaborately has reasoned its decision on several grounds. Supreme court in the judgement stated that section 377 is enacted by the Parliament therefore it would be appropriate if the Parliament repeals the section. Supreme court laid that since all laws are legislated by the Parliament, therefore these are enforced with presumption of their validity, thus inorder to hold a law invalid, appropriate evidence should be brought. It was contended that the law under IPC is being misused by Police answering to which court laid that there is not enough evidence to this contention and that there are not many cases reported and merely on this ground the law cannot be declared as invalid. It was further argued that because of the applicability of the section to certain sexual conduct, all forms of sexual expression by LGBT people would be violative of section 377. Supreme Court answering to the contention laid that the section only lays penalty against unnatural sexual offences and sexual orientation or gender identity is not covered under the section thus the section does not apply to LGBT as a class. Supreme Court further clarified that decisions of other countries favouring consensual sex between same gender in similar cases cannot be relied in Indian context. Supreme Court in the judgement vehemently laid that Parliament is the authority which can take decision on validity or unconstitutionality of section 377.
by Vibhuti Nakta.
See Original Judgement:Suresh Kumar Koushal and another Vs NAZ Foundation and Others on 11th December, 2013