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to agree with the learned counsel  appearing on behalf  of  the appellants  that  only becauseSection 13 of the repealed Act is inconsistent with Section 14 of the 2003  Act,  the  same would  be  arbitrary  by  reason  of  being discriminatory  in  nature  and  ultra  vires 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 operate

alike 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 not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of  persons or  things.  The Courts should not  insist  on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.

4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian  Territory  or  that  the  same  remedies  should  be  made available to them irrespective of differences of circumstances.  It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation,  and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.

5.  By the process  of  classification,  the State  has  the power  of determining who should be regarded as a class  for purposes of legislation and in relation to a law enacted on a particular subject. This power,  no doubt,  in some degree is likely to produce some inequality; but if a law  deals with the liberties of a number of well defined classes,  it  is not  open to the charge of denial  of equal protection on the ground that it has no application to other persons. Classification thus  means  segregation in classes  which have  a systematic  relation,  usually  found  in  common  properties and characteristics.  It  postulates a rational  basis and does not  mean herding together of certain persons and classes arbitrarily.

6. The law can make and set apart  the classes according to the needs  and  exigencies  of  the society  and  as  suggested  by experience.  It  can  recognise  even  degree  of  evil,  but  the classification should never be arbitrary, artificial or evasive.

7. The classification must not be arbitrary but must be rational, that is  to  say,  it  must  not  only  be  based  on  some  qualities  or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation.  In  order  to  pass  the  test,  two  conditions must  be fulfilled, namely,

(1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and

(2) that differentia must have a rational relation to the object sought to be achieved by the Act.

8. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.  In short,  while Article  14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not  forbid classification for the purpose of legislation,  provided such classification is not arbitrary in the sense above mentioned.

9. If the legislative policy is clear and definite and as an effective method of carrying out  that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot  be condemned as a piece of discriminatory legislation. In such cases,  the power given to the executive body would  import  a  duty  on  it  to  classify  the  subject-matter  of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a  basis  which has  no rational  relation to  the  objective  of  the legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.

10.  Whether  a  law  conferring  discretionary  powers  on  an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary  manner  in  exercising  the  discretion  committed  to  it. Abuse of power given by law does occur; but the validity of the law  cannot  be  contested  because  of  such  an  apprehension. Discretionary power is not necessarily a discriminatory power.

11. Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of  inequality  in  no  manner  determines  the  matter  of constitutionality.

12. Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article  14 must  be determined in each case  as it  arises,  for no general  rule applicable to all  cases  can safely be laid down.  A practical assessment of the peration of the law in the particular circumstances is necessary.

13. A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination.”

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.  What Section 377 does is merely to define the particular offence and prescribe 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.  Therefore,  the High Court  was not  right  in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.

While reading down Section 377 IPC,  the Division Bench of  the High 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 (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring  that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

The vagueness and arbitrariness go to the root of  a provision and may render  it  unconstitutional, making  its  implementation  a  matter  of  unfettered discretion. This is especially so in case of penal statues. However while analyzing a provision the vagaries of language must be borne in mind and prior application of the law must be considered. In A.K. Roy and Ors. v. Union of India and Ors. (1982) 1 SCC 271, a Constitution Bench observed as follows:

The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept  in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi  [1978]  2 SCR 621 .  The underlying principle is that every person is entitled to be informed as  to what  the State commands or forbids and that  the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law,  the processes  of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither the criminal law nor  the  Constitution requires  the  application  of  impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fall  within  the  prescribed  area,  when  measured  by  common understanding. In criminal law, the legislature frequently uses vague expressions  like 'bring into hatred or  contempt',  'maintenance of harmony between  different  religious  groups'  or  'likely to  cause disharmony or hatred or ill-will', or 'annoyance to the public', (see Sections  124A,  153A(1)(b),  153B(1)(c),  and  268  of  the  Penal Code). These expressions, though they are difficult to define, do not elude a just application to practical situations. The use of language carries with it the inconvenience of the imperfections of language.”

In K.A. Abbas v. The Union of India (UOI) and Anr. (1970) 2 SCC 780 the Court observed:

“These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the principles evolved by the Supreme Court  of the United States of America  in the  application of  the  Fourteenth Amendment  were eschewed in our Constitution and instead the limits of restrictions on each fundamental right were indicated in the clauses that follow the first  clause of the nineteenth Article, it  cannot  be said as an absolute principle that  no law will  be considered bad for  sheer vagueness.  There is ample authority for the proposition that a law affecting fundamental rights may be so considered. A very pertinent example is to be found in State of Madhya Pradesh and Anr.  v. Baldeo Prasad where the Central Provinces and Berar Goondas Act 1946  was  declared  void  for  uncertainty.  The  condition for  the application of Sections 4 and 4A was that the person sought to be proceeded against must be a goonda but the definition of goonda in the Act indicated no tests for deciding which person fell within the definition. The provisions were therefore held to be uncertain and vague.

The real rule is that if a law is vague or appears to be so, the court  must  try to  construe  it,  as  far  as  may be,  and  language permitting, the construction sought to be placed on it,  must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes  away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases.”

We  may  now deal  with  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 purports to restrict or limit the right to life and liberty, including the rights of privacy, dignity and autonomy, as envisaged under Article.

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. In Maneka Gandhi  v.  Union  of  India  (supra),  this  Court  laid  down  the  due  process requirement in the following words:

“13. Articles dealing with different fundamental rights contained in Part  III  of  the  Constitution  do  not  represent  entirely  separatestreams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial Justice (social,  economic  and  political),  Freedom (not  only of  thought, expression,  belief,  faith  and  worship,  but  also  of  association, movement,  vocation or occupation as  well  as  of  acquisition and possession of reasonable property),  of Equality (of status and of opportunity,  which  imply  absence  of  unreasonable  or  unfair discrimination between  individuals,  groups  and  classes),  and  of Fraternity (assuring dignity of the individual and the unity of the nation),  which  our  Constitution  visualises.  Isolation  of  various aspects  of  human freedom,  for  purposes  of  their  protection,  is neither realistic nor beneficial but would defeat the very objects of such protection….

… But the mere prescription of some kind of procedure cannot ever meet the mandate of Article 21.  The procedure prescribed by law has  to  be  fair,  just  and  reasonable,  not  fanciful,  oppressive  or arbitrary. The question whether the procedure prescribed by a law which curtails  or  takes  away the personal  liberty guaranteed by Article  21 is  reasonable or  not  has  to be considered not  in the abstract or on hypothetical considerations like the provision for a full-dressed  hearing as  in a  Courtroom trial,  but  in the context, primarily, of the purpose which the Act is intended to achieve and of urgent situations which those who are charged with the duty of administering the Act may be called upon to deal with. Secondly, even the fullest compliance with the requirements of Article 21 is not  the  journey's  end because,  a  law which prescribes  fair  and reasonable  procedure  for  curtailing or  taking away the personal liberty  guaranteed  by  Article  21 has  still  to  meet  a  possible challenge  under  other  provisions  of  the  Constitution  like,  for example, Articles 14 and 19.”

The right to privacy has been guaranteed by Article 12 of the Universal Declaration of Human Rights (1948), Article 17 of the International Covenant of  Civil and Political Rights and European Convention on Human Rights. It has been read into Article 21 through an expansive reading of the right to life and liberty.  The scope of the right as also the permissible limits upon its exercise have been laid down in the cases of Kharak Singh v. State of UP & Ors. (1964) 1 SCR 332 and Gobind v. State of MP (1975) 2 SCC 148  which have been followed in a number of other cases. In Kharak Singh v. The State of U.P. and Ors. (supra) the majority said that 'personal liberty' in Article 21 is comprehensive to include all varieties of rights which make up personal liberty of a man other than those dealt with in Article  19(1) (d).  According to the Court,  while Article  19(1) (d) deals with the particular types of personal freedom, Article 21 takes in and deals with the residue. The Court said:

“We have already extracted a passage from the judgment of Field J.in Munn v. Illinois (1877) 94 U.S. 113, where the learned Judge pointed out that 'life' in the 5th and 14th Amendments of the U.S.Constitution corresponding to Article 21 means not merely the right to the continuance of a person's animal existence, but a right to the possession of each of his organs-his arms and legs etc. We do not entertain any doubt that the word 'life' in Article 21 bears the same signification. Is then the word 'personal liberty' to be construed as excluding from its purview an invasion on the part of the police of the sanctity of  a  man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal ? It might not be in appropriate to refer here to the words of the preamble to the Constitution  that  it  is  designed  to  "assure  the  dignity  of  the individual" and therefore of  those  cherished human value as  the means  of  ensuring his  full  development  and  evolution.  We are referring to these objectives of the framers merely to draw attention to the concepts underlying the Constitution which would point to such vital words as 'personal liberty'  having to be construed in a reasonable manner  and to be attributed that  sense  which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire Constitutional theories.”

In Gobind v. State of M.P. (supra) the Court observed:

“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest  is shown to be superior.  If the Court  does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test. Then the question would be whether a state interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a  compelling  as  well  as  a  permissible  state  interest,  the characterization of ft claimed rights as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a state interest sufficient to justify the infringement of a fundamental privacy right need not be considered for the purpose of  this  case  and  therefore  we  refuse  to  enter  the  controversial thicket whether enforcement of morality is a function of state.

Individual autonomy, perhaps the central concern of any system of limited government, is protected in part under our Constitution by explicit  Constitutional  guarantees.  "In  the  application  of  the Constitution our contemplation cannot only be of what has been but what may be." Time works changes and brings into existence new conditions. Subtler and far reaching means of invadings privacy will make it possible to be heard in the street what is whispered in the closet.  Yet,  too  broad  a  definition  of  privacy  raises  serious questions about the propriety of judicial reliance on a right that is not  explicit  in  the  Constitution.  Of  course,  privacy  primarily concerns the individuals.  It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values.

Any right to privacy must encompass and protect the personal intimacies  of  the  home,  the  family  marriage,  motherhood, procreation  and  child  rearing.  This  catalogue  approach  to  the question is obviously not as instructive as it does not give analytical picture of  that  distinctive characteristics  of  the right  of  privacy. Perhaps,  the  only  suggestion  that  can  be  offered  as  unifying principle  underlying the  concept  has  been  the  assertion  that  a claimed right must be a fundamental right implicit in the concept of ordered liberty.

Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things  stamped  with  his  personality shall  be  free  from official interference except where a reasonable basis for intrusion exists. "Liberty against government" a phrase coined by Professor Corwin express this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.

As Ely says: "There is nothing to prevent one from using the word  'privacy'  to  mean  the  freedom to  live  one's  life  without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case" see "The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920.

There are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that  they  cause  offence  resulting  from the  mere  thought  that individuals might he engaging in such activities and that such 'harm' is not  Constitutionally protective by the state.  The second is that individuals need a place of sanctuary where they can be free from societal  control.  The  importance  of  such  a  sanctuary  is  that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves,  an image that  may reflect  the values  of  their  peers  rather  than the realities of their natures see 26 Standford Law Rev. 1161 at 1187. The right to privacy in any event will necessarily have to go through a  process  of  case-by-case  development.  Therefore,  even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.”

The issues of bodily integrity and the right to sexual choices have been dealt  with  by  this  Court  in  Suchita  Srivastava  and  Anr.  v.  Chandigarh Administration  (2009)  9  SCC  1,  in  context  of  Section  3 of  the  Medical  Termination of Pregnancy Act, 1971, observed:

“A plain reading of the above-quoted provision makes it clear that Indian law allows for abortion only if the specified conditions are met. When the MTP Act was first enacted in 1971 it was largely modelled on the Abortion Act of 1967 which had been passed in the United Kingdom. The legislative intent was to provide a qualified 'right to abortion' and the termination of pregnancy has never been recognised as a normal recourse for expecting mothers. There is no doubt that a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating.  The crucial  consideration is that  a woman's right  to privacy,  dignity and  bodily integrity should  be  respected.  This means that there should be no restriction whatsoever on the exercise of  reproductive  choices  such  as  a  woman's  right  to  refuse participation in sexual activity or alternatively the insistence on use of  contraceptive  methods.  Furthermore,  women are  also  free  to choose  birth-control  methods  such  as  undergoing  sterilisation procedures.  Taken to their logical  conclusion,  reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However,  in the case of pregnant women there is also a 'compelling state interest' in protecting  the  life  of  the  prospective  child.  Therefore,  the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled.  Hence,  the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.”

In Mr. X v. Hospital Z (1998) 8 SCC 296, this court observed:

“As one of the basic Human Rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.

Right of Privacy may, apart from contract,  also arise out of a particular  specific  relationship  which  may  be  commercial, matrimonial, or even political. As already discussed above, Doctor patient relationship, though basically commercial, is, professionally, a  matter  of  confidence  and,  therefore.  Doctors  are  morally and ethically bound  to  maintain confidentiality.  In  such  a  situation, public  disclosure  of  even  true  private  facts  may amount  to  an invasion of the Right of Privacy which may sometimes lead to the clash of person's "right to be let alone" with another person's right to be informed.  

Disclosure of even true private facts has the tendency to disturb a person's tranquility. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the  Right  of  Privacy is  an  essential  component  of  right  to  life envisaged by Article  21.  The right,  however,  is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.

Having regard to the fact that  the appellant was found to be HIV(+),  its disclosure would not be violative of either the rule of confidentiality or the appellant's Right of Privacy as Ms. Akali with whom the appellant was likely to be married was saved in time by such disclosure, or else, she too would have been infected with the dreadful disease if marriage had taken place and consummated.”

The right to live with dignity has been recognized as a part of Article 21  and the matter has been dealt with in Francis Coralie  Mullin v. Administrator,

Union Territory of Delhi and Ors. (1981) 1 SCC 608 wherein the Court observed:

“But  the question which arises  is whether  the right  to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right  to live with human dignity and all  that  goes along with it, namely,  the  bare  necessaries  of  life such as  adequate  nutrition, clothing  and  shelter  and  facilities  for  reading,  writing  and expressing  one-self  in  diverse  forms,  freely  moving about  and mixing and commingling with fellow human beings. Of course, the magnitude  and  content  of  the  components  of  this  right  would depend  upon  the  extent  of  the  economic  development  of  the country, but it must, in any view of the matter, include the right to the basic necessities  of  life and also the right  to carry on such functions and activities as constitute the bare minimum expression of  the  human-self.  Every act  which  offends  against  or  impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just  procedure established by law which stands the test  of other fundamental rights.  Now obviously,  any form of torture or cruel, inhuman  or  degrading  treatment  would  be  offensive  to  human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure  which leads  to  such torture  or  cruel,  inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.”

Respondent No.1 attacked Section 377 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 and 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 IPC. The law in this regard has been discussed and clarified succinctly in Sushil Kumar Sharma v. Union of India  and Ors. (2005) 6 SCC 281 as follows:

“11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved,  that administration and application of a particular law would be done "not  with an evil eye and unequal hand"

(see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti,

Authorised  Official  and  Income-Tax  Officer  and  Anr.)   :

[1956]29ITR349(SC) .

In Budhan Choudhry and Ors. v. State of Bihar  : 1955CriLJ374

a  contention  was  raised  that  a  provision  of  law may  not  be discriminatory  but  it  may  land itself  to  abuse  bringing  about discrimination between the persons similarly situated.  This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is  otherwise  intra-vires,  constitutional  and valid,  mere possibility of abuse of power  in a given case would not  make it objectionable, ultra-vires or unconstitutional. In such cases, "action" and not the "section" may be vulnerable.  If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors.  :

1997(89)ELT247(SC)  ,  a Bench of 9 Judges observed that  mere possibility  of  abuse  of  a  provision  by  those  in  charge  of administering  it  cannot  be  a  ground  for  holding  a  provision procedurally or substantively unreasonable. In Collector of Customs v.  Nathella  Sampathu  Chetty :  1983ECR2198D(SC)  this  Court observed:

"The  possibility of  abuse  of  a  statute  otherwise  valid does  not impart  to it  any element  of  invalidity."  It  was  said in State  of Rajasthan  v.  Union  of  India   :  [1978]1SCR1  "it  must  be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable  of  mischief."  (Also see:  Commissioner,  H.R.E.  v.  Sri Lakshmindra  Thirtha  Swamiar  of  Sri  Shirur  Meth   : [1954]1SCR1005 .

As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat MANU/SC/0567/2004 : 2004CriLJ3860 . Unique Butle Tube Industries (P) Ltd. v.  U.P. Financial Corporation and Ors.   : [2002]SUPP5SCR666 and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors. [2002]255ITR147(SC) , while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.”

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.   This view was expressed as early as in 1973 in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20.  In that case, a Constitutional Bench considered the legality of the death sentence imposed by the Sessions Judge, Shahjahanpur, which was confirmed by the Allahabad High Court.  One of the arguments raised by the counsel for the appellant was that capital punishment has been abolished in U.S. on the ground of violation of the 8 considering that argument, this Court observed:

 “ Reference was made by Mr Garg to several studies made by Western scholars to show the ineffectiveness of capital punishment either  as a detterent  or  as appropriate retribution.  There is large volume of evidence compiled in the West by kindly social reformers and research workers to confound those who want  to retain the capital  punishment.  The  controversy  is  not  yet  ended  and experiments  are  made  by suspending the  death sentence  where possible in order to see its effect. On the other hand most of these studies suffer from one grave defect namely that they consider all murders as stereotypes,  the result  of sudden passion or  the like, disregarding motivation in each individual case. A large number of murders is undoubtedly of the common type. But some at least are diabolical  in conception and cruel  in execution.  In some others where the victim is a person of high standing in the country society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks,  in the opinion of many,  for  the inevitability of  death penalty not  only by way of deterrence but as a token of emphatic disapproval by the society.

We have grave doubts about  the expediency of transplanting Western experience in our country. Social conditions are different and so  also the general  intellectual  level.  In the  context  of  our Criminal Law which punishes murder,  one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty. We have not been referred to any large-scale studies of crime statistics compiled in this country with the object of estimating the need of protection of  the society against  murders.  The only authoritative study is that of the Law Commission of India published in 1967. It is its Thirty-fifth Report. After collecting as much available material as possible and assessing the views expressed in the West both by abolitionists and the retentionists the Law Commission has come to its  conclusion  at  paras  262  to  264.  These  paragraphs  are summarized by the Commission as follows at p. 354 of the Report:

 “The issue of  abolition or retention has  to be decided on a balancing of the various arguments for and against  retention.  No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject,  the need for protecting society in general and individual human beings must be borne in mind. It is difficult to rule out the validity of, or the strength behind, many of the arguments for abolition. Nor does the Commission treat lightly the argument based on the irrevocability of the sentence of death,  the  need  for  a  modern approach,  the  severity of  capital punishment,  and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values.  Having regard, however, to the conditions in India, to the variety of the social  upbringing of its inhabitants,  to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.

Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context. Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts. On a consideration of all the issues involved, the Commission is of the opinion,  that capital  punishment should be retained in the present state of the country.”

The Court also referred to an earlier judgment in State of Madras v. V.G.

Row 1952 SCR 597. In that case, Patanjali Sastri, CJ. observed:

“It  is important  in this context  to bear  in mind that  the test  of reasonableness,  wherever  prescribed,  should be  applied  to  each individual  statute impugned,  and to abstract  standard,  or general pattern, of reasonableness  can be laid down as  applicable to all cases.  The nature of the right alleged to have been infringed,  the underlying purpose  of  the  restrictions  imposed,  the  extent  and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their  own conception of  what  is  reasonable,  in all  the circumstances  of  a  given  case,  it  is  inevitable  that  the  social philosophy and the scale of values of the judges participating in the decision  should  play  an  important  part,  and  the  limit  to  their interference with legislative judgment  in such cases  can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but  for all,  and that  the majority of the elected  representatives  of  the  people  have,  in  authorising  the imposition of the restrictions,  considered them to be reasonable”. The responsibility of Judges in that respect is the greater, since the question as to whether capital sentence for murder is appropriate in modern  times  has  raised  serious  controversy  the  world  over, sometimes, with emotional overtones. It is, therefore, essential that we approach this constitutional question with objectivity and proper measure of self-restraint.”

The afore-stated judgment was relied upon in Surendra Pal v.  Saraswati  Arora (1974) 2 SCC 600.  Learned counsel who appeared for the appellant in that case relied upon a passage from Halsbury’s Laws of England on the issue of  presumption of undue influence in the case  of parties engaged to be married.  While refusing to rely upon the proposition laid down in Halsbury’s  laws  of  England, this Court observed:

“The  family  law  in  England  has  undergone  a  drastic  change, recognised new social relationship between man and woman. In our country, however, even today a marriage is an arranged affair. We do not say that there are no exceptions to this practice or that there is no tendency, however imperceptible, for young persons to choose their  own spouses,  but  even in such cases  the  consent  of  their parents is one of the desiderata which is sought for. Whether it is obtained in any given set of circumstances is another matter. In such arranged marriages  in this  country the  question of  two  persons being engaged for any appreciable time to enable each other to meet and be in a position to exercise undue influence on one another very rarely arises. Even in the case of the marriage in the instant case, an advertisement  was  resorted  to  by  Bhim Sain.  The  person  who purports to reply is Saraswati’s mother and the person who replied to  her  was  Bhim Sain’s  Personal  Assistant.  But  the  social considerations prevailing in this country and ethos even in such cases persist in determining the respective attitudes. That apart, as we said earlier,  the negotiations for marriage held in Saraswati’s sister’s house have all the appearance of a business transaction. In these  circumstances  that  portion of  the  statement  of  the law in Halsbury which refers to the presumption of the exercise of undue influence in the case of a man to a woman to whom he is engaged to be married would hardly be applicable to conditions in this country. We have had occasion to point out the danger of such statements of law enunciated and propounded for meeting the conditions existing in the countries in which they are applicable from being blindly followed in this  country without  a  critical  examination of  those principles and their applicability to the conditions, social norms and attitudes existing in this country. Often statements of law applicable to foreign countries as stated in compilations and learned treatises are cited without making a critical examination of those principles in the background of the conditions that  existed or exist in those countries.  If we are not  wakeful and circumspect,  there is every likelihood  of  their  being simply applied  to  cases  requiring our adjudication without consideration of the background and various other conditions to which we have referred. On several occasions merely because courts in foreign countries have taken a different view than  that  taken  by  our  courts  or  in  adjudicating on  any particular matter we were asked to reconsider those decisions or to consider them for the first time and to adopt them as the law of this country. No doubt an objective and rational deduction of a principle, if it emerges  from a  decision  of  foreign  country,  rendered  on  pari materia legislative provisions and which can be applicable to the conditions prevailing in this country will assist the Court in arriving at a proper conclusion. While we should seek light from whatever source we can get, we should however guard against being blinded by it.”

In view of the above discussion, we hold 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.

The appeals are accordingly allowed, the impugned order is set aside and  the writ petition filed by respondent No.1 is dismissed. While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity.  Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General."