The Supreme Court on Wednesday set aside the Delhi High Court judgment decriminalising homosexuality, upholding Section 377 of the Indian Penal Code (IPC) which treats sexual relations between consenting gay adults as "unnatural" and punishable.
A bench of justices S J Mukhopadhyaya and Justice G S Singhvi said the "Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the Constitutionality of IPC Section 377 and found that the said section does not suffer from any Constitutional infirmity."
Justifying the reason for not striking down Section 377, the judgment said: "It is, therefore, apposite to say that 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."
The apex court noted that even though in the last 150 years less than 200 people have been prosecuted, it was not a sound enough reason to strike down Section 377.
"The Naz foundation had failed to furnish proof of incidents of discriminatory attitude exhibited by State agencies towards sexual minorities," the court observed, adding that the mere fact that the section is misused by police and others is not a reflection of the (illegality).
Commenting on the order, Additional Solicitor General of Indira Jaising said a historical opportunity to expand Constitutional values has been lost. The first woman ASG of the country was also critical of the apex court saying it is surprising that the court, which does judicial review on many issues, has put the ball in the court of Parliament to decide on homosexuality.
The apex court had reserved its order in March last year after granting day-to-day hearing of the case from February 15, 2012.
While hearing the appeal, the SC had pulled up the Centre for its "casual" approach on decriminalisation of homosexuality and expressed concern over Parliament not discussing such important issues and blaming the judiciary instead for "overreach". Section 377 makes gay sex a criminal offence, entailing punishment up to life term.
In July 2009, the HC had reasserted the fundamental rights of the LGBT community, which was challenged by activists and religious leaders. These groups claim that gay relations are against the order of nature.
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