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Court’s Verdict
In the previous posts (Part I, Part II, Part III and Part IV), I
mentioned the various arguments and counter-arguments raised by both the sides.
I also mentioned the various constitutional law doctrines and interpretative
aids that were used by the court to reach the conclusion. In the present post,
I present you the conclusion i.e. the final verdict given by the court in this
case. Note that, presently, this verdict is the law of the land on this issue.
The court said that from the
cases mentioned in the previous posts, no uniform test can be culled out to
classify acts as “carnal intercourse against the order of nature”. 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.
Hence it is difficult to prepare
a list of acts which would be covered by the section. Nonetheless in light of
the plain meaning and legislative history of the section, the court held that
Section 377 IPC would apply irrespective of age and consent.
In order to pass the test, two
conditions must be fulfilled, namely,
(1) That the classification
must be founded on an intelligible differentia which distinguishes those that
are grouped together from others and
(2) That differentia must have
a rational relation to the object sought to be achieved by the Act.
Basically, there is a
corresponding duty on the administrative body to classify the subject matter of
legislation in accordance with the objective indicated in the statute. If the
classification is such that it has no rational relation to the objective of the
legislature, its action can be said to be offending the equal protection clause
mentioned in our Constitution.
The court further said that
“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.
The court also remarked on the High
Court judgment in this case.
“While reading down Section
377 IPC, the Division Bench of 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 persons have been
prosecuted (as per the reported orders) for committing offence under Section
377 IPC and this cannot be made sound basis for declaring that section ultra
vires the provisions of Articles 14, 15 and 21 of the Constitution.”
It was also said that the Right
of Privacy is an essential component of right to life envisaged by Article 21.
The right, however, is not absolute and may be lawfully restricted for the
prevention of crime, disorder or protection of health or morals or protection
of rights and freedom of others.
The Respondents 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. However, the court opined that 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.
Before parting, the court said
that it has merely pronounced on the correctness of the view taken by the Delhi
High Court on the constitutionality of Section 377 IPC and found that the said
section does not suffer from any constitutional infirmity. Notwithstanding this
verdict, 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.
To be Continued….
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