The misuse of penal provision by police cannot be a ground to call for scrapping or amending the law declaring as criminal offence sex between the same gender which attracts punishment upto life imprisonment, the Supreme Court today held.
A bench of justices G S Singhvi and S J Mukhopadhaya brushed aside the contentions of Naz Foundation, an NGO which was the first to file the plea for decriminalising section 377 (unnatural offences) of IPC, that penal provision was misused by police to harass and torture persons belonging to the LGBT community.
"Respondent No.1 (Naz Foundation) 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 bench said.
The apex court set aside the Delhi High Court's judgement which had in 2009 decriminalised sex between the same sex among consenting adults in private.
It put the ball in Parliament's court to consider the "desirability and propriety" of deleting or amending the penal provision making sexual intercourse between people of same sex as a criminal offence.
