NEW DELHI: In a landmark judgement on Thursday, the Supreme Court decriminalised consensual gay sex. The apex court was hearing a clutch of petitions seeking abolition of the 158-year-old colonial law under Section 377 of the Indian Penal Code which criminalises gay sex. After hearing the arguments on the matter for 4 days, a five-judge constitution bench headed by Chief Justice Dipak Misra had on July 17 reserved its verdict in the matter.
What is Section 377?
Section 377 of the Indian Penal Code criminalises consensual private sexual acts between adults.
As per Section 377 (Unnatural offences) - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1*[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
The archaic law making gay sex a crime was introduced during the British era in 1862. Under Section 377, consensual sexual acts of adults - oral and anal sex - in private between heterosexuals also are currently treated as unnatural and punishable.
What happened in Delhi HC?
The issue was first raised by NGO Naaz Foundation, which had in 2001 approached the Delhi High Court. In a landmark judgement in 2009, the HC decriminalised sex between consenting adults of the same gender by holding the penal provision as "illegal".
Setback in SC
In a huge jolt to the LGBTQI community, the Supreme Court in 2013 overturned the high court judgement making gay sex illegal. It also dismissed the review plea against which the curative petitions were filed.
Opposition of 377 as per the Constitution
Gender activists have argued that Section 377 violates different articles of the Indian Constitution -
a) Article 14 which guarantees right to equality before law
b) Article 15 which ensures that no person shall be discriminated against on the basis of caste, gender, creed etc
c) Article 21 which guarantees right to life and personal liberty.