In
Koushal v. NAZ Foundation, (Sup. Ct. India, Dec. 11, 2013), a 2-judge panel of India's Supreme Court reversed a lower court ruling that had held unconstitutional Section 377 of the
Indian Penal Code insofar as it bans homosexual sexual acts in private between consenting adults. (See
prior posting.) Rejecting the lower court's holding that the statute violated constitutional provisions on equal protection and non-discrimination, Justice Singhvi wrote:
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 Supreme Court also rejected the lower court's holding that the statute infringes the substantive due process right to privacy:
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.
Responding to the argument that police have misused the law, the Supreme Court said:
Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on ... those belonging to the LGBT community. [T]he 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.
Times of India reports on the decision.
