Para 40 -- The writ petition filed by respondent No.1 (The Naz Foundation) was singularly laconic in as much as except giving brief detail of the work being done by it for HIV prevention targeting MSM community. The Naz Foundation, the SC observed, 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.
Naz Foundation did not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities.
Only in the affidavit filed 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%
MSM (men who have sex with men) is 6.54% to 7.23%
IDU (injecting drug users) is 9.42% to 10.30%.
The affidavit also states that the total population of MSM as in 2006 was estimated to be 25,00,000 and 10% of them are at risk of HIV and it further provides the State-wise break up of estimated size of high risk men who have sex with men and the State-wise details of total adult population, estimated adult HIV prevalence and estimated number of HIV infections as in 2009. These details the SC held 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.
Para 42 -- 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 High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution because Section 377 merely defines the particular offence and prescribes punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty.
Para 43 -- The SC judges observed that the Division Bench of the High Court while reading down Section 377 of the India Penal 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 for committing offence under Section 377 of the IPC. This, the SC said, cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
Para 45 – (The issue of violation of Article 21 of the Constitution) The requirement of substantive due process has been read into the Indian Constitution through a combined reading of Articles 14, 21 and 19 and it has been held as a test which is required to be satisfied while judging the constitutionality of a provision which intents to restrict or limit the right to life and liberty, including the rights of privacy, dignity and autonomy under Article 21. In order to fulfill this test, the law must not only be competently legislated but it must also be just, fair and reasonable. Arising from this are the notions of legitimate state interest and the principle of proportionality.
Para 51 -- The Naz Foundation attacked Section 377 of the 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. 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 of the IPC.
Para 52 -- In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 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.
Para 54 -- The SC held that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.
Para 55 -- The appeals are accordingly allowed, the impugned order is set aside and the writ petition filed by respondent No.1 (The Naz Foundation) is dismissed.