This story is from December 11, 2013

NEW DELHI: Foreign laws cannot be applied "blindfolded" to decide the constitutionality of law enacted by legislature in India, the Supreme Court said on Wednesday while setting aside the judgment of the Delhi high court decriminalizing sexual intercourse between same sex people.

The court said that the judgments of other jurisdictions (foreign countries) can shed light on various aspects of the rights of lesbians, gays, bisexuals and trans genders ( LGBT ) and are also informative but they cannot be applied here.

A bench of justices G S Singhvi and S J Mukhopadhaya made the observation while rejecting the high court's 2009 verdict in which it had extensively relied upon the judgments of foreign countries.

"In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 (unnatural offences) 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 bench said.

'Law not amended despite debate and recommendation'

The Supreme Court said the legislature has "chosen not to amend the law or revisit it" to decriminalize unnatural offences like gay sex despite the debate and recommendation by the Law Commission to delete section 377 of the IPC.

Further, while upholding the legal validity of section 377 of IPC, the apex court said even the Centre has also not challenged the Delhi high court's verdict decriminalizing gay sex.

The judges said since adoption of IPC in 1950, 30 amendments have been done in the statues, including the recent one this year in the wake of the December 16 gang rape incident but Parliament has not made any amendment in the law relating to section 377 of IPC.

"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," the bench said.

It said although the apex court and high courts are empowered to review the constitutionality of Section 377 of IPC and strike it down, "self restraint must be exercised and the analysis must be guided by the presumption of constitutionality."

"While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import," it said.

'NGO's petition laconic'

The apex court held the petition "laconic" as it miserably failed to furnish particulars of incidents of discriminatory attitude exhibited by the state agencies towards the LGBT community.

The apex court said Naz Foundation has also not furnished the details of the cases involving harassment and assault from public and public authorities to lesbians, gays, bisexuals and trans genders (LGBT) community.

"The writ petition filed by respondent no.1 (NGO) was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM (men who have sex with men) 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," the judges said.

"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 per cent to 4.94 per cent, among MSM is 6.54 per cent to 7.23 per cent and IDU (injecting drug users) is 9.42 per cent to 10.30 per cent.

"The total population of MSM as in 2006 was estimated to be 25,00,000 and 10 per cent of them are at risk of HIV," the bench said.

It also said that the details of state-wise break up of estimated high risk MSM, total adult population, adult HIV prevalence and number of HIV infections as in 2009 which has been given 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".

