India's Supreme Court Reinstates Gay Sex Ban

, The Asian Lawyer


The judges went on noting that High Court overlooked that fact that only a fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders and in last more than 150 years less than 200 persons have been prosecuted for committing offence under Section 377. “This cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution,” said the judges.

In a submission to the Supreme Court, Additional Solicitor General P.P. Malhotra, who acted for the Ministry of Home Affairs, said that fact that after 60 years, parliament had not decided to delete or amend Section 377 represented people’s will not to do so. “It is not for the Court to import the extra-ordinary moral values and thrust the same upon the society,” he noted criticizing Delhi High Court’s ruling.

In dealing with the judicial review of legislations, the Supreme Court judges agreed that declaring a law unconstitutional is one of the last resorts Courts should take. “The Courts would accept an interpretation, which would be in favor of constitutionality rather than the one which would render the law unconstitutional,” the decision read.

However at the end of the decision, the judges noted that their ruling was a mere correction of the view taken by the Delhi High Court but lawmakers should feel free to re-consider the “desirability and propriety of deleting Section 377 from the statute book or amend the same as per the suggestion made by the Attorney General.”


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