The Supreme Court on Tuesday said by exempting sex between two consenting same sex adults, the validity of Section 377 of Indian Penal Code (IPC) shall remain intact as offences of non-consensual sexual acts and bestial cruelty will still be punishable under this provision that punishes unnatural sex.
Reserving orders on a bunch of petitions filed by persons belonging to the lesbian, gay, bisexual, transgender, queer (lGBTQ) community, a five-judge Constitution Bench gave vital clues about its impending order. The Apostolic Churches Alliance represented by advocate Manoj George, individuals and NGOs opposed to decriminalising gay sex submitted to the court that tweaking Section 377 will have a cascading effect on other laws and prevailing social customs in the country and amendment, if any, should be left to Parliament keeping the interest of entire society.
The Bench of Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra said, “We will not wait for any majoritarian Government to enact or repeal a law. The moment we find a provision in law that violates a Fundamental Right, we have a duty to strike it down which the Government will not touch.”
The Bench clarified that acts against children of same sex will continue to be punishable under sodomy law and other non-consensual sexual acts will be punished under Section 377 as bestiality. George pointed out that personal laws in the country, for instance, Parsi Marriage and Divorce Act makes unnatural sex a ground for divorce. Other lawyers voiced concerns about married men and women engaging in same-sex relations which will break families and cannot be remedied under the present laws.