The Supreme Court on Thursday said gay sex among consenting adults is not an offence after hearing a batch of petitions challenging the Constitutional validity of Section 377 of the Indian Penal Code that criminalises homosexuality.
The five-judge constitution bench of Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra had reserved the verdict on July 17 on the conclusion of arguments.
The verdict assumes significance as in the earlier round of litigation in 2013 the Supreme Court had reversed the Delhi high court ruling decriminalising homosexuality or same sex relationship,
The law
Section 377 of IPC – which came into force in 1862 – defines unnatural offences. It says, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”
Delhi HC legalises homosexuality
The Delhi high court had in July 2009 de-criminalised consensual homosexual acts in private by declaring as unconstitutional a part of Section 377 of IPC that criminalises unnatural sex, saying “the section denies a gay person a right to full personhood…”
SC re-criminalises homosexuality
The Supreme Court chose to reverse the verdict in December 2013. Upholding the constitutional validity of Section 377 IPC, an SC bench headed by Justice GS Singhvi (since retired), put the ball in the Parliament’s court, saying it was for the legislature to take a call on the desirability of the controversial provision.
Homosexuality a taboo
Homosexuality is considered a taboo in a largely conservative Indian society which appears to be divided on the controversial issue. Freedom loving people (not necessarily belonging to Lesbian, Gay, Bisexual and Transgender or LGBT community) want homosexuality de-criminalised but many still consider it a “deviant behaviour” and not merely a question of one’s sexual orientation or preference.
Implications for heterosexuals
The case has implications for heterosexuals also, as consensual sexual acts of adults such as oral and anal sex in private are currently treated as unnatural and punishable under Section 377 IPC.