The High Court had not deleted the section 377 of IPC in its entirety. It only made the penal provisions of Section 377 inapplicable to Consented homosexual carnal intercourse. The Supreme Court has not criminalized Homosexuality. It held that the Judiciary has no power to make new “Laws”. In otherwords, that it has no power to criminalize or decriminalize any act. It has directed Legislature to do the needful.The SC has not commented about morality of homosexual behavior. The judgment is purely based on constitutionalism. The SC applied the doctrine of severability- and when they applied it with regard to precedents before it, it found that they cannot read down the particular section of IPC.
The section was found by SC to be not violating the principle of equality. The section penalizes the act, not any particular group of people. The act being – carnal intercourse against the order of nature- In simple language, it is oral / anal sex. The argument that by criminalizing the act, LGBT community is being discriminated against does not hold, since even if a man-woman couple engages in this act, it is a crime (if we apply the logic). So it cannot be said that the section criminalizes a particular community alone.
The SC has clearly stated that “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 (Para 38).” This is what I explained in previous paragraph.
As far as the question of Article 21 violation is concerned, SC held “Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and 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 ” (Para 51). SC has clearly stated that misuse of law by executive does not affect its constitutionality. It is certainly a relevant fact for the Legislature while amending the said section. There is no single conviction of consented gay or lesbian sex till date.
It is also worth noting Para 40 of the Judgment “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. Only in the affidavit filed before this Court on behalf of the Ministry of Health and Family Welfare, Department of AIDS Control it has been averred that estimated HIV prevalence among FSW (female sex workers) is 4.60% to 4.94%, among MSM (men who have sex with men) is 6.54% to 7.23% and IDU (injecting drug users) is 9.42% to 10.30%. The total population of MSM as in 2006 was estimated to be 25,00,000 and 10% of them are at risk of HIV. The State-wise break up of estimated size of high risk men who have sex with men has been given in paragraphs 13 and 14 of the affidavit. In paragraph 19, the State-wise details of total adult population, 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”
Since SC found that the said section is not unconstitutional because it does not violate fundamental rights. The section does not criminalize a particular community. Hence the question of reading it down does not even arise. SC judgment has discussed doctrine of severability at this point. “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.”
It is very important to read Para 32 of the judgment where SC says “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. “Those who got outraged against SC judgment should first ask the legislature why they did not do the duty.
Another important thing to note in this judgment is about the affidavit filed by Home Ministry in High Court which says “Shri Venu Gopal further pleaded that an unlawful act cannot be rendered legitimate because the person to whose detriment it acts consents to it; that Section 377 has been applied only on complaint of a victim and there are no instances of arbitrary use or application in situations where the terms of the section do not naturally extend to Section 377 IPC; that Section 377 IPC is not violative of Articles 14 and 21 of the Constitution. According to Shri Venu Gopal, Section 377 IPC provides a punishment for unnatural sexual offences, carnal intercourse against the order of nature and does not make any distinction between procreative and non-procreative sex. (Para 7)”
If Home Ministry is to be believed, the Section 377 has been applied only on complaint of a victim. Complaint usually follows exploitation. So if someone exploits a man or woman, and it is technically not a rape (because there is no penile-vaginal penetration), and if that man or woman complains to police, then only this section comes into play. Otherwise it does not. In effect, SC has endorsed this stand of Home Ministry in its judgment.
It is very sad to see people mixing up moral and legal issues of Homosexuality and misinterpreting the Judgment. The judgment has not at all touched the morality issue, but rather it is only about a constitutionality of a section. To conclude, what I understood is, SC has NOT criminalized any sexual orientation, nor has it decriminalized anything. But what it has done is that it asked the Legislature to do what it is supposed to do.