The Supreme Court today said that despite the debate about and recommendation by the Law Commission to delete section 377 of the IPC, the legislature has "chosen not to amend the law or revisit it" to decriminalise unnatural offences like gay sex.
Further, while upholding the legal validity of section 377 of IPC, the apex court said even the Centre has also not challenged the Delhi High Court's verdict decriminalising gay sex.
A bench of justices G S Singhvi and S J Mukhopadhaya said since adoption of IPC in 1950, 30 amendments have been done in the statues, including the recent one this year in the wake of the December 16 gangrape incident but Parliament has not made any amendment in the law relating to section 377 of IPC.
"The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the legislature has chosen not to amend the law or revisit it.
"This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision," the bench said.
It said although the apex court and high courts are empowered to review the constitutionality of Section 377 of IPC and strike it down, "self restraint must be exercised and the analysis must be guided by the presumption of constitutionality."
"While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import," it said.
