Courts to presume constitutionality of legal provision

The Supreme Court on Wednesday said that courts should presume Constitutionality of a legal provision and rather observe restraint before striking it down.

The apex court which overturned the 2009 Delhi High Court verdict legalizing gay sex among consenting adults, said that the courts should not act unless Constitutional violation of a provision of law was palpable.

“Unless a clear constitutional violation is proved, this court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need,” the bench said.

The court said the Indian Penal Code along with the particular provision as it existed till this day was passed by the Legislative Council and the Governor General assented to it on October 6, 1860.

“The understating of acts which fall within the ambit of Section 377 has changed from non-procreative (Khanu v. Emperor) to imitative of sexual intercourse (Lohana Vasantlal vs State AIR 1968 Guj 352) to sexual perversity (Fazal Rab v. State of Bihar AIR 1963, Mihir v. Orissa 1991,” the bench pointed out quoting previous verdict.

“The high court and this court are empowered to review the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with the Constitution, self restraint must be exercised and the analysis must be guided by the presumption of constitutionality,” it added.

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