Banning 377 would be too foreign, argued SCBanning 377 would be too foreign, argued SCLegally India has culled seven main reasons from the 98 page judgment in the Section 377 case, explaining why the Supreme Court decided that a lower court was wrong to repeal the law effectively banning homosexual intercourse.

Around four years ago the Naz Foundation NGO, through its lawyer Anand Grover, had approached the Delhi high court, arguing that it was difficult to help HIV infected homosexual men when their sexuality was criminalised and they were subjected to intimidation by police.

On 2 July 2009 the Delhi high court bench headed by Justice AP Shah repealed Section 377 of the Indian Penal Code 1860, boldly declaring that the law:

insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution. We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15.

Today, a Supreme Court bench of justices GS Singhvi (on the day of his retirement) and SJ Mukhopadhaya was of the view that the Delhi high court had overstepped its mark into the domain of the legislature.

Shortly after the judgment a number of religious groups and activists appealed to the Supreme Court and arguments were made again. Today the apex court bench observed in the appeal that even if the Delhi HC petitioners had sufficiently proved instances of state abuse of section 377, which in its opinion they hadn’t, this would have no bearing on whether section 377 was constitutional.

The judgment ruffled feathers on social media by using language such as “so-called rights [of LGBTs]” and referencing a judgment that differentiated “female sex workers” from “normal human beings”.

However, outside of more emotive arguments of fundamental rights, the Supreme Court based its decision around seven broad and more technical legal points:
[View full judgment on Scribd]

1. What can we do if Parliament doesn’t?

Repeal of section 377 does not find a place among the 30 odd amendments the parliament has recently made to the statute. The fact that the “undisputed representative” of the people (read parliament) “has not thought it proper” to delete the provision, should “guide our understanding of character, scope, ambit and import”.

“After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. 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, the 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 import.”

2. We can’t decide what’s sexually ok

Sexual conduct should be regulated. However, it is difficult to make a list of acts that would fit the bill of such regulated, acceptable conduct, said the apex court. Section 377 makes the job easy by disposing of with the condition of “consent” altogether. So it is good.

“It is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that the Section 377 IPC 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.”

3. We wanted more evidence being gay is hard

The Naz Foundation failed to show enough instances of abuse of the provision by state authorities. It merely mentioned that it is doing work in the field of HIV/AIDS afflicted homosexuals.

“The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them. Respondent No.1 has also not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities.”

“State-wise estimated adult HIV prevalence and estimated number of HIV infections as in 2009 has been given. These details are wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society.”

4. The law’s letter says ‘carnal intercourse against nature’ is illegal

Article 14 (right to equality before law) does not apply because heterosexuals have penile-vaginal intercourse and all the others are two separate categories of people.

“A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination”

“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. What Section 377 does is merely to define the particular offence and prescribe punishment for the same […]”

5. Just over one reported prosecution per year? That’s not enough!

Hardly 200 persons have been prosecuted in 150 years of Section 377.

“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 and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

6. Misuse by police? Not our problem

Police abuse gay men and women because of Section 377? That’s parliament’s problem, not the courts’!

“The mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC.”

7. But what about Indian (legal) culture?

The Delhi HC has discounted the Indian context by relying on too much foreign jurisprudence to reach its order.

“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. 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.”

Photo by Nick Johnson

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1
Like +11 Object -2 Guest 11 Dec 13, 22:40  interesting
Maybe the Court felt 'over reaching' its 'MANdate' would not be viewed sympathetically, for post retirement posting!
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Like +0 Object -0 Anonymous 11 Dec 13, 23:18
Doctrine of Severability: First point in the judgment after which everything follows

The doctrine of severability seeks to ensure that only that portion of the
law which is unconstitutional is so declared and the remainder is saved.
This doctrine should be applied keeping in mind the scheme and purpose
of the law and the intention of the Legislature and should be avoided where
the two portions are inextricably mixed with one another.
… The court can resort to reading down a law in order to save it from being
rendered unconstitutional. But while doing so, it cannot change the essence
of the law and create a new law which in its opinion is more desirable.”
Para 31
“Applying the afore-stated principles to the case in hand, we deem it proper
to observe that while the High Court and this Court are empowered to review the
constitutionality of Section 377 IPC and strike it down to the extent of its
inconsistency with the Constitution, self restraint must be exercised and the
analysis must be guided by the presumption of constitutionality.

Para 32
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Like +6 Object -20 Khassi 12 Dec 13, 00:16  controversial
justice singhvi has saved our culture and marriage tradition..
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Like +7 Object -7 Indian Lawyer 12 Dec 13, 09:14  controversial
LI your coverage of the judgment reeks of partiality and your own prejudice...but its ok, guess you are now fully coloured by (Indian) media culture...
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Like +0 Object -1 kianganz 12 Dec 13, 09:17
It seems quite balanced, and most are saying it could have gone either way.

Which other reasons are there in the judgment that we missed out or that explain the reasoning better?
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Like +4 Object -1 Indian Lawyer 12 Dec 13, 09:38
Not here to debate with you...wrote what I felt on reading your piece...

but since you ask, it will be good to understand the legal history in UK, US etc better...
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Like +0 Object -4 kianganz 12 Dec 13, 10:50
There's quite a lot in this judgment and in the 2009 judgment, if I recall correctly... 2009 judgment is linked to from the 2009 original news story linked to above...
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Like +1 Object -0 Student 12 Dec 13, 10:21
Hi,

I am just thinking aloud here. Assuming the SC had not overturned the Delhi HC decision, would the law regarding 'rape' also have to change? I know this is a stretch.. But I was wondering as to what would the consequence be if a man was forced to have carnal intercourse against his will if s. 377 gets legalized by a case-law?
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Like +2 Object -0 Johnny 12 Dec 13, 11:19
Yes Rape would have to be made gender neutral. the person forcing would be prosecuted for use of criminal force/ hurt etc ..Good point tho - for upholding 377
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Like +3 Object -0 Anonymous 12 Dec 13, 12:20
Agree with Johnny above.

The Law Commission is making its report on various issues but the legislature is not doing anything. It is not court's job to legislate especially in such interwoven provisions.

The case being Section 307 - Attempt to suicide. The Section is worded so that the court cannot create a specific exception of passive euthanasia without striking down the whole provision which again would cause great problems in cases other than a genuine mercy killing.

Moreover, all our laws (which are being made) are made in so much haste without any foresight. Case being the recent criminal amendment act 2013. Read it an you will find except the Rape part, the other provisions are so vague, sexual harassment, stalking etc. which are bound to cause confusion and misuse. But our legislators don't understand this, they are populist and political, they are busy in keeping their majority intact or frivolously engaging in showing each other down at the cost of the legal system.
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Like +3 Object -2 Law Student 12 Dec 13, 12:16
The Delhi HC clearly says that the reading down of the Section would apply insofar as it applies to consensual sex between adults. If it is not consensual it is rape.
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Like +1 Object -3 Student 12 Dec 13, 12:50
Given this, I wonder how the SC could have legalized 377 actually. Because by no stretch of imagination can they ask the parliament to make 'rape' laws gender neutral. I say this because our parliament simply does not have the stomach to pass such a law which will compromise their vote bank heavily. Specially when all the three main religious organizations of the country are against it.

On a re-read of the judgment, subject to correction, my opinion is that such laws which have a drastic interlink with public policy can only be changed/deleted by the parliament. It will be a double "over-reach" by the SC if it had done it instead of the P'ment. Although this is not what I believe in, I think the SC made the right call.

Hope to see some change by any mechanism!
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Like +1 Object -0 Anonymous 12 Dec 13, 13:10
Of course. Sometimes the law leads the society and sometimes the society leads the law.

There is a review and a curative petition that can be exercised.

Or in future if the police goes on a manhunt for this then an individual(s) whose right has been infringed can file another writ petition under 32 and the court may refer the matter to a larger bench and decide on the constitutionality.
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Like +9 Object -1 Rohan 12 Dec 13, 13:53  interesting
The SC judgment seems correct insofar as it deals with the issues raised in the Delhi HC, viz. Art. 14, privacy etc.

However, the High Court itself got it wrong by not considering section 87 of the IPC, (which carves out a general exception for offences committed with consent) and instead getting into tricky constitutional arguments.

The SC judgment, consequently becomes incomplete since it restricts itself to only conclusions of the HC. This was an opportunity to clarify the extent of section 377, in light of section 87, and settle the law. The Court did not avail it. To that extent a review may actually lie on strong grounds.
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Like +2 Object -0 James T. Kirk 13 Dec 13, 00:30
I don't think Section 87 is a defence against 377.

Section 87 is for 'harm' caused and offences relating to personal injury.

Section 87 does not apply to offences against state, public tranquility etc. and is imported from the maxim volunti non fit injuria.

If you take the defence of Section 87 it will make you an abettor in such cases.


Illustration
A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.

Where fencing is not an offence but engaging in unnatural carnal intercourse is. Now whatever happens during carnal intercourse will be a crime irrespective of consent.
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Like +1 Object -1 Rohan 13 Dec 13, 08:24
Just FYI - 377 falls in the chapter "Offences affecting the Human Body", and therefore, does in fact, contemplate a victim.
I am not aware of any case-law under 377 which has involved consent. Certainly not after independence.
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Like +2 Object -0 James T. Kirk 13 Dec 13, 13:10
@Rohan
The lack of any settled proposition makes it dicey though I agree with your interpretation inspite how courts have viewed the objective of 377.
But if 87 is made defence against 377 then it will be a curious proposition not only for LGBTs but for women who accuse their husbands for unnatural acts as the defence will be applicable to them as well.
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Like +2 Object -1 Rohan 13 Dec 13, 13:59
If the woman accuses, then the defence won't apply (since then there is a victim who has not consented).

But, technicalities aside, my broad point was that in these high profile cases, Courts often pick up the constitution too soon. The HC (wrongly) did that - and the SC (rightly) slapped it on the palm.

Had these arguments been considered, and even assuming that the Court concluded that 87 did not apply to 377, an excellent Article 14 argument could have been made on there being no rational nexus between those offences between to which it applied (such as simple hurt) and those to which it did not (eg. 377).

Also, I believe that the section 87 issue was in fact, argued before the SC. But it does not find mention anywhere at all (presumably because they restricted themselves to conclusions of the HC).
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Like +1 Object -0 James T. Kirk 13 Dec 13, 14:41
Unfortunately or fortunately, things are not as simple as they look.
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Like +0 Object -2 Law Student 14 Dec 13, 11:05
This is an interesting discussion, but I think the legal discussion here overlooks a harsh reality.
Even if 87 was read as a defense to a booking under 377, it would not avoid the harassment that homosexuals face on behalf of the police. That is the fundamental discrimination here - the disparate impact that this provision has on homosexuals.
Such legal arguments can only be taken in Court and as we already know the cases that reach the prosecution stage are quite small. ( this is not to say that one person's rights being violated is not a wrong - just saying that there is a larger social evil at play).
So if 377 is wiped out of the statute book, then there is no section through which policemen can call these individuals to the Police station.
In any condition, 377 violates not only equality but also privacy dye to a lack of compelling state interest.
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Like +11 Object -7 Gaylord 12 Dec 13, 19:56  controversial
Altho' i have not read the judgment I am happy that the apex court struck down the High Court's attempt at grandstanding.

While I am not for criminalising homosexual behaviour, deviant it definitely is - or as the quaint 19th cent term for it "carnal intercourse against the order of nature".

If you pretend that this is normal in nature, then try mating a cow with - another cow.

If nature forbids it, "legalising" something so unpractical, and gross, is hardly a solution.

LGBT types are so in the face, as if what they are doing is so normal and something to be really proud of - which it ain't.

And I hate this fetish for political correctness..which the media is going crazy over. There are billions of more pressing problems in this benighted republic of ours - legalising buggery is certainly not one of them.
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Like +2 Object -3 Sad to hear 14 Dec 13, 11:21
Its sad to hear, whoever you are #gaylord, that even after being educated enough (assuming that you are atleast a graduate if not a lawyer), you are talking in this fashion... hope you are never in the same position as the "LGBT types" that you are referring to... and hope you never face the kind of discrimination and disrespect that they go through.... If you think they are too in the face, wait till someone questions you on even checking out someone from the opposite gender...
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