Foreign laws cannot be applied "blindfolded" to decide the constitutionality of law enacted by legislature in India, the Supreme Court on Wednesday said while setting aside the judgement of the Delhi High Court decriminalising sexual intercourse between same sex people.
The court said that the judgements of other jurisdictions (foreign countries) can shed light on various aspects of the rights of lesbians, gays, bisexuals and trans genders (LGBT) and are also informative but they cannot be applied here.
A bench of justices G S Singhvi and S J Mukhopadhaya made the observation while rejecting the high court's 2009 verdict in which it had extensively relied upon the judgements of foreign countries.
"In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 (unnatural offences) IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgements of other jurisdictions.
"Though these judgements 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," the bench said.
NGO's Petition Laconic
The Supreme Court held that the petition of the NGO seeking to decriminalise sexual intercourse between consenting adults of same sex was "laconic" as it miserably failed to furnish particulars of incidents of discriminatory attitude exhibited by the State agencies towards the LGBT community.
The apex court said Naz Foundation has also not furnished the details of the cases involving harassment and assault from public and public authorities to lesbians, gays, bisexuals and trans genders (LGBT) community.
"The writ petition filed by respondent no.1 (NGO) was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM (men who have sex with men) 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," a bench of justices G S Singhvi and S J Mukhopadhaya said.
(Countries where homosexuality is illegal)
"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 per cent to 4.94 per cent, among MSM is 6.54 per cent to 7.23 per cent and IDU (injecting drug users) is 9.42 per cent to 10.30 per cent.
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"The total population of MSM as in 2006 was estimated to be 25,00,000 and 10 per cent of them are at risk of HIV," the bench said.
It also said that the details of state-wise break up of estimated high risk MSM, total adult population, adult HIV prevalence and number of HIV infections as in 2009 which has been given 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".