The Supreme Court of India overruled a Delhi High Court judgment that held Section 377 of Indian Penal Code prohibiting “carnal intercourse against the order of nature” as unconstitutional and infringed the fundamental rights of people.
The Court, however, said that 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.
In 2009, Delhi High Court has ruled that Section 377 is violative of Articles 14, 15 and 21 of the Constitution of India in so far it criminalizes consensual sexual acts of adults in private.
Stating that the Delhi High Court was not right in declaring Section 377 ultra vires Articles 14 & 15 of the Constitution, the Court said, “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 which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty.”
“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,” the Court said.