Ratio of judgment of SC on Homosexual

Supreme Court: While discussing the constitutionality of Section 377 of the Indian Penal Code, 1860, the court in its landmark judgment set aside the verdict of Delhi High Court and held that Section 377 I.P.C does not suffer from the vice of unconstitutionality. The 2- judge bench of Hon'ble G.S. Singhvi and S.J. Mukhopadhaya. JJ, while relying upon number of Indian judgments said that unless a clear constitutional violation is proved, the 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. In relation to the “acts” which fall under the said provision, the Court stated that the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed. The Court held that Section 377 I.P.C would apply irrespective of age and consent and it 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. The Court added that Section 377 neither mandates nor condones harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. [Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No.10972 of 2013, decided on December 11, 2013]

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