Why Section 377 is Constitutional? Reasons given by Justice Singhvi

Here is the operative part of the SC judgement, dealing with reasons to support Constitutionality of Section 377 IPC"We shall now consider the question whether the High Court was justified in entertaining challenge to Section 377 IPC despite the fact that respondent No.1 had not laid factual foundation to support its challenge. This issue deserves to be prefaced by consideration of some precedents. In Southern Petrochemical Industries v. Electricity Inspector (2007) 5 SCC 447, this Court considered challenge to the T.N. Tax Consumption or Sale of Electricity Act, 2003. While dealing with the question whether the 2003 Act was violative of the equality clause enshrined in Article 14 of the Constitution, this Court made the following observations:“In absence of necessary pleadings and grounds taken before the High Court, we are not in a position to agree with the learned counsel appearing on behalf of the appellants that only becauseSection 13 of the repealed Act is inconsistent with Section 14 of the 2003 Act, the same would be arbitrary by reason of being discriminatory in nature and ultra vires Article 14 of the Constitution of India on the premise that charging section provides for levy of tax on sale and consumption of electrical energy, while the exemption provision purports to give power to exempt tax on “electricity sold for consumption” and makes no corresponding provision for exemption of tax on electrical energy self-generated and consumed.” In Seema Silk and Sarees v. Directorate of Enforcement (2008) 5 SCC 580, this Court considered challenge to Sections 18(2) and (3) of the Foreign Exchange Regulation Act, 1973, referred to paragraphs 69, 70 and 74 of the Southern Petrochemical Industries v. Electricity Inspector (supra) and observed:“In absence of such factual foundation having been pleaded, we are of the opinion that no case has been made out for declaring the said provision ultra vires the Constitution of India.”The writ petition filed by respondent No.1 was singularly laconic in as much as except giving brief detail of the work being done by it for HIV prevention targeting MSM 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. Respondent No.1 has also not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities. 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% to 4.94%, among MSM (men who have sex with men) is 6.54% to 7.23% and IDU (injecting drug users) is 9.42% to 10.30%. The total population of MSM as in 2006 was estimated to be 25,00,000 and 10% of them are at risk of HIV. The State-wise break up of estimated size of high risk men who have sex with men has been given in paragraphs 13 and 14 of the affidavit. In paragraph 19, the State-wise details of total adult population, estimated adult HIV prevalence and estimated number of HIV infections as in 2009 has been given. These details 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.The question whether a particular classification is unconstitutional was considered in Re: Special Courts Bill, 1978 (1979) 1 SCC 380. Speaking for majority of the Constitution Bench, Chandrachud, CJ, referred to large number of precedents relating to the scope of Article 14 and concluded several propositions including the following:“1. The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favourtism. It is a pledge of the protection of equal laws, that is, laws that operatealike on all persons under like circumstances.2. The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.3. The Constitutional command to the State to afford equal protection of its laws sets a goal...

Why Section 377 is Constitutional? Reasons given by Justice Singhvi

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