Now that the judgement is available for review, I would say it causes more disappointment than the "news". I have utmost respect for our apex court, but in the fine traditions of the Bar, one can express disappointment by citing the reasons for being disappointed! A list of the reasons, none of which provides any comfort (for the reasons given) provided below:

1. Presumption of constitutional validity (while the presumption is fair, finding S. 377 valid in the face of Arts. 14, 15, 19 and 21 is not);
2. No pleadings re constitutional validity at the HC (the superior courts of record have inherent powers and the power of judicial review – the Court need not limit itself to pleadings; rather, it has the duty to take cognizance of facts. Also, the SC has itself ignored certain facts stated in affidavits that the judgement reproduces in parts e.g. harassment of LGBTs);
3. LGBTs are a different class, so there is no arbitrariness as such. Further, they are a minuscule minority (this is most shocking because Art. 14 was explained in EP Royappa v. State of TN - violation of Art. 14 must be assumed when a law is "arbitrary", “whimsical” or “illogical”. Also, indirectly suggesting that the rights of a minuscule minority need not receive equal attention is disconcerting because we lawyers love the apex court and its protective attitude for one and all);
4. Less than 200 prosecutions in 150 years in terms of reported judgements (even if one ignores unreported cases and harassment by police - because the SC correctly says that harassment by police cannot be a ground to declare S. 377 unconstitutional – by the same token, a small number of prosecutions is not a reason to find S. 377 valid!)
5. The HC relied on foreign jurisprudence (we are a young democracy and there is nothing wrong in relying on foreign jurisprudence – at any rate, it is better than referring to Victorian era jurisprudence re sodomy and buggery that the SC judgement cites, although apparently as obiter).
6. The best reason given by the SC is that the Parliament has chosen to not change the law despite Law Commission’s recommendations and public opinion (this is a fair point, except that judicial review can be used to strike down or read down a law that violates Part III. What the Parliament chooses is irrelevant when a law is hit by the Holy Troika of Arts. 14-19-21).

I accept your criticism but here is how I differ:

1. The presumption of constitutional validity was arrived after taking into consideration 'doctrine of severability'. Since 377 not only covers LGBTS but all the acts of Sodomy and beastility, i.e. unnatural sex between unconsenting adults, man rape, sex with animals etc. it will not be prudent for the Court to read down the law or declare it unconstitutional when the provision is inextricably mixed.

2. Your 2nd point is a valid point and it is worth reviewing. It has an apparent fallacy which no one is viewing. Is a 2 judge bench even competent to examine constitutional validity of a statutory provision? By law, yes but by practice, I am not sure. The SCR says that an appeal should not be heard by less than 2 judges, however, a judge may refer it to larger bench...whereas under original jurisdiction a matter under Art. 32 should be heard by a bench of not less than 5 judges if it involves substantial question of law as to interpretation of the constitution! I don't understand this discrimination against 32 and an appeal from 226.

3.The LGBTs are not the different class, but the whole gamut of people engaging in unnatural acts is a class. And the court did consider the changing notions of sex in the society and by citing AK Roy it stated that an offence might use vague terms like "bringing hatred to a community" but that doesn't mean that the practicality should be ignored while implementing such provision. "In our opinion 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. All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the
section has been interpreted. We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section." It was the Court's reasoning that 377 targets acts and not People with specific orientation. It was also the submission of ASG that it is mostly invoked for abuses against children.

4. Less than 200 prosecutions in 150 years not quite a right way to put it, rapes might be under-reported but that doesn't mean they are not happening. But where do you see police chasing LGBTs? They are doing Gay Pride Parades, Giving interviews on TV like Vikram Seth, tell me why Police doesn't catch them when they are proclaiming themselves to be indulging in such acts? After all if an offender has to be arrested and investigated. But here is a matter of practicality. Whatever is happening between closed bedrooms is not police's business until someone reports it. Discrimination may happen as Naz Foundation said when it comes to people with HIV have to be treated, when a transexual is molested. But that evidence they failed to provide which is clear from the judgment. The IRONY is that a sexual assault on an LGBT can only be addressed under 377.

5. We do borrow judgments from foreign countries when our own jurisprudence is insufficient. But that has to be applied keeping State Policy. For instance, there maybe numerous judgments where adultery is a crime for women also in foreign countries BUT it is India's state policy that it is not a crime against women under 498. What is the use of such judgments in India?

6. The best reason is also the correct course of action. Courts cannot dictate state policy. It has to come from legislature. Law Commission reports are not for courts to implement but for the legislature to implement. And in a Section where things are jumbled up it is incorrect for the Court to legislate. Court has legislated, for instance in case of Vishakha, where there was NO law prevailing against sexual harassment which is practically not transgressing its power in the domain of legislature. Here there IS a law, which has not been changed even after law commission recommendations, HC judgment. More so the Central Govt. chose to not appeal the judgment.


On a side note, this fight is not for Art. 14, 15 and 21. Like everywhere else, the 'so-called' rights are aimed for creating a new social order where LGBTs have same rights of marriages, succession etc. Which will be doubly difficult in India because Marriage is inextricably linked to religion. In hinduism it's a sacrosanct not a contract. LGBTs were always part of Indian society. Hinjras have been there who are considered auspicious when they come for weddings and all. They need political rights, they need acceptance which unfortunately won't come from Courts.

Adultery is 497, my bad.

Am sure you have a strong basis for your comments, right? Otherwise you might just come across as an ill-informed idiot, and am sure you are not one, right? And I also hope you see the light some day. But mostly, I hope you are not a lawyer.

I never expected that the number of buggers is huge in India. It is all the more intriguing that there is equally large number of vocal and shameless supporters for buggery. No doubt, there have always been sodomites and lesbians in the society but they have never been accorded halo in the manner they are being sought to be given now. It is not simply a matter of between two consenting couples for unnatural sex but a more a matter of creating upheavals and disorder in the society. Thanks to Justice Singhvi that the society has been saved from sinking into whirl of chaos, otherwise politicians perpetually wait in the wings to fish in the troubled waters.
Just imagine if a son in the family comes with another boy introduces his family members as his wife or a daughter introduces a girl as the son in law of her parents. Then there will be case for domestic violence, dowry or inheritance. What about children? They boldly say that they will go for adoption because they cannot procreate against the nature. Why should they restrict themselves for fulfilling their carnal desires and others should produce children for them?
Hermaphrodites and eunuchs are the class apart as they are sui generis. But lesbians and gays are the sick persons , they need to treated properly and carefully and not glorified and decriminalized by stretching Articles 14 and 21 of Constitution of India too far.

Why is it a problem what two consenting adults do in the privacy of their bedrooms? Or have you not noticed that Section 377 criminalises anal and oral sex between a man and a woman as well?

I did not see a single legal argument in your defence of the judgment. I am sure as hell you haven't read it.

No one is arguing that all old laws are necessarily bad laws. But as someone pointed out, law cannot be stagnant and has to evolve with time. If a particular provision has become outdated due to changing societal norms, it has to go. Period.

Yes, agreed that a large number of Indian people are uncomfortable with homosexuality. But w what two consenting adults do in the privacy of their own bedroom is not the business of the 'large number of Indian people''. I have a right to do whatever I want to as long as it doesn't adversely affect you, and you certainly have no right to impose your views or religious sentiments on me. Also, are you seriously equating defecating in public and manual scavenging to sex? While the former would affect the public at large (and hence the public has a right to oppose it or protest against it) and not to mention be detrimental to the environment that we all live in, the latter is a PRIVATE, consensual act done within the four corners of one's own home.

Agreed laws cannot please people all the time. But there's a difference between pleasing everyone and actively discriminating against a certain section. And yes, the case of the latter, it is the duty of the Courts to step in and take necessary action.

As you so rightly understood decriminalizing dacoity because 'dacoits can't help being dacoits' is absurd. But the difference between homosexuals and dacoits (among other things) is that while the former have a choice, the latter don't. You can't choose your sexual orientation. And so yes, homosexuals can't help being who they are.

It has always fascinated me that homosexuals and heterosexuals don't have a choice while bisexuals have a lot of choices. But I wander in the realm of skepticism in such kind of finding, which is in want of authority.

Of course the point is quite clear that a lot of assumptions that are being made here because of the west. It's in fashion and we have to please foreigners. I am not saying that import of any good values will do any harm to us but please see beyond your point. While it's an election issues for people fighting elections in USA, in India it's hardly a discussion.

Since you think it's a religious attack, I'll give you a secular argument and that is Homosexuality is an aberration. If it happens in animal kingdom then also it's aberration. It's against nature. It's against evolution. Period.

But even then I'll give you the benefit because a lot of things we humans do are not natural. So we have to create rights and all.

BUT Where is the discrimination????

Section 87 of the IPC provides for a clear defence for offences which are done with consent (except homicide and waging war against the country). It is surely a defence against 377. And it is precisely for your privacy that is there. I don't see police running and arresting homosexuals. Where is that happening? Nor that the police running after heterosexual people engaging in oral or anal sex by consent.

Of course if you want more social awareness on this issue then ask the NGOs to raise awareness and campaigns on social acceptability towards LGBTs instead of filing case laws for rendering a whole section which warrants all the cases of sodomy and bestiality to be treated as crimes. It is not specifically targeted against LGBTs.

articles.timesofindia.indiatimes.com/2013-11-08/people/43821768_1_lgbt-community-sexual-minorities-section-377

So the police are not arresting homosexuals are they?

Really?????

Read the full article

"According to reports, six of the alleged accused were arrested based on a First Information Report (FIR) filed by an engineering student in 2011, who claimed to have been sexually abused by the accused. The rest were allegedly arrested based on two FIRs filed by the police itself, under claims that they performed sexual acts in a public space."

Anyway thanks for citing this because it also gives reason to not put a blanket ban on 377 :

"Calling it state terrorism, Arvind asks why the police waited for two years after the first complaint to arrest these six people. "Even if the arrests had been made in 2011, it would have been unconstitutional to book them under Section 377. The police continue to use the rule and that is not right," says Arvind."

So going by this logic no Man can report a sexual assault by another Man in that period when the Delhi HC judgment was in force.

Furthermore, please do read this more neutral and sensible article

www.hindustantimes.com/india-news/sc-ruling-on-sec-377-a-wonderful-opportunity-for-a-fresh-beginning/article1-1161839.aspx

So, I did go back and read the judgement.
"We lawyers don't fight for the best law schools and spend some considerable amount of money just to face your ignorance...As far as section 377 is concerned it nowhere deals specifically with lgbt"
1) The Constitutional validity was challenged on terms of.. "We declare that Section 377 IPC, insofar it criminalizes consensual
sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. Dsnt deal wid lgbt? no?
2) Going to Judiciary is short cut? you are from legal fraternity right? you know the pending litigation's of the courts? you know the case was decided by Delhi high court in 2009? well we will go back to legislators but look how heart warming response we got from judiciary.
3)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.we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature...
Yeah sure we can still have laws wch were imposed by technically other jurisdiction but we cant rely on other jurisdiction to set wrong things right. The so-called rights of LGBT is as important as any other individual. In a democracy where minorities rights are not recognized what kind of democracy is it?

Yes legally very sound judgement but in terms of court being guardian of the rights of "people", big let down.

Dear 007,

GO BACK TO ENGLAND YOUR MAJESTY NEEDS YOUR SERVICE.

JUST REMEMBER INDIA'S NEXT CJI IS GOING TO BE FROM RAJASTHAN.

now, read the judgment first while you are having your vodka martini. On a second note if you think very modern and liberal then have guts to roam around in a general coach on Bhartiya Rail just like Gandhi did to know the real India.

Quoting kianganz:

^ = troll = don't feed, just downvote and / or chuckle.

Kian, who are you to keep calling others Trolls???? Everyone may not be a homosexual like you and is entitled to their own views. Just because their view on the judgment does not match yours does not mean they are "trolls"

Anyway, judging from the number of downvotes, it looks like people think you are the biggest troll on LI

You are entitled to your opinion, sir, but please do not malign all of us with your bigotry.

In NALSAR it is a bigger problem than in most other schools. I agree with Motorbike.

Hmm,I agree. I have been caught by surprise, but most of the times, it was too late...time for some gulab jamoon..

I want to study at NALSAR now.

I am sure a single line - 377 is unconstitutional, would have made you happier. After all you are a smart person, you know it's right!