The Supreme Court Tuesday dismissed a plea of the central government and NGO Naz Foundation for the review of its Dec 11, 2013, verdict holding homosexuality to be an offence.
A bench of Justice H.L. Dattu and Justice Sudhansu Jyoti Mukhopadhyay dismissed the review petition in a chamber hearing Tuesday afternoon.
An apex court bench of Justice G.S. Singhvi (since retired) and Justice Mukhopadhyay in December last year set aside a 2009 Delhi High Court order, which overturned Section 377 of the IPC, to hold that the consensual sex between adults of same gender was not a criminal offence.
The government and the Naz Foundation had moved the apex court seeking the review of its verdict again making a sexual relationship between the consenting adults of the same gender a criminal offence.
The government, in its petition seeking the review of apex court order, said that “Section 377 IPC (Indian Penal Code), insofar it criminalizes consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our constitution”.
It argued that the Section 377 which criminalizes intercourse “against the order of nature” is a reflection of outdated sodomy laws of Britain, which were transplanted into India in 1860.
“They (these outdated laws) do not have any legal sanctity and in any case are unlawful in view of the constitutional mandate of Articles 14, 15 and 21 of the Constitution.”
The Delhi High Court by its July 2, 2009, verdict held that “Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution,” but said the provision “will continue to govern ‘non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors’ “.
But the apex court by its Dec 11, 2013, order said: “We hold that Section 377 does not suffer from vice of unconstitutionality and declaration made by the division bench of the Delhi High Court is unsustainable.”
Section 377 provides for life imprisonment or jail term up to 10 years for anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal”.
The apex court’s verdict said those who indulge in carnal intercourse against the order of nature constitute different classes and could not claim that “Section 377 suffers from the vice of arbitrariness and irrational classification”.
It also said that 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 people have been prosecuted (as per the reported orders) for committing offence under Section 377 and this cannot be made sound basis for declaring that Section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution”.