The Supreme Court today reinstated a ban on gay sex in a major setback for rights campaigners in the world's biggest democracy. (Read the entire Supreme Court judgement here)
The top court struck down the Delhi High Court's landmark decision in 2009 to to decriminalize homosexuality. The judges said only lawmakers and not the courts could change a colonial-era law criminalizing homosexuality.
Here are excerpts from the judgement:
- 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.
- The High Court is not at all right in observing that Section 377 IPC obstructs personality development of homosexuals or affects their self-esteem because that observation is solely based on the reports prepared by the academicians
- The impugned order (Delhi High Court order) does not discuss the concept of "carnal
- intercourse against the order of nature" and does not adequately show how the section violates the right to privacy.
- 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.
- 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.
- Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
- 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.