India is one of those countries in which consensual gay sex is punishable crime, as per section 377 LGBT community (lesbian, gay, bisexual, transgender) has been requesting to review this section. In fact, in 2013 Supreme court reviewed this section 377 and gave verdict upholding criminalisation of consensual gay sex. The SC’s 2013 ruling was a big blow to the LGBTQ community. Now with the persistent request from LGBT community, SC agreed to review section 377.
Section 377 (of Indian Penal code) says “whoever voluntarily has carnal intercourse against the order of nature of 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 ten years, and shall also be liable to fine”. LGBT community’s argument is that the section 377 of IPC(Indian Penal COde) is 158-year-old IPC provision and societal morality also changes from age to age. So LGBT community remarking that, because of this section 377, their lives are “inexorably constricted and rights infringed”. Dancer N S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur filed petition regarding this section 377. “Despite their achievements and contributions to India in various fields, they are being denied the right to sexuality, the most basic and inherent of fundamental rights. Section 377 renders them criminals in their own country,” the petition said.
Referring this issue, the CJI-led bench said: “Section 377 uses a phraseology ‘carnal intercourse against the order of nature’. The determination of ‘order of nature’ is not a constant phenomenon. The law copes with life and accordingly change takes place. The morality that public perceives, the Constitution may not conceive of.” Also the bench added, “What is natural to one may not be natural to other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 (including right to privacy) of the Constitution,” it said.
Several law experts welcomed SC’s decision to review article 377. Politicians like Subramanya Swamy are arguing that section 377 should continue. However, so far almost 26 countries, including US, Britain, France, Germany permitted gay sex. None of the Islamic countries have so far permitted gay sex. We need to wait and see what decision India going to take.
