There are now clear indications that the Supreme Court realizes the need to review the law that crimilizes all sexual activity other than consensual heterosexual intercourse. On Monday, the Supreme Court referred to a five-judge Constitution Bench a fresh challenge to the existing laws relating to the rights of lesbian, gay, bisexual and transgender people arising from yet another appeal against Section 377 of the Indian Pel Code which punished any form of sex “against an order of ture” with jail up to a life term. It will be recalled that in 2009 the Delhi High Court had decrimilized homosexual acts between consenting adults, quashing as unconstitutiol the aforesaid provision of the Indian Pel Code’s Section 377. But in 2013, a two-judge Supreme Court bench overturned the judgement, saying that Parliament alone could change laws. A curative petition against the verdict, moved after a review petition was rejected, is pending with the apex court. However, it was in 2016 that a group of gay rights activists challenged Section 377 afresh, saying it violated the fundamental rights of homosexuals. It was on this petition that the Supreme Court ruled on Monday. In doing so, the three-judge bench clarified that what would be under consideration for decrimilization was consensual (gay and lesbian) sex between adults—and not sex with children or animals. The bench of Chief Justice Dipak Misra and Justices A.M.Khanwilkar and D.Y. Chandrachud said, “Societal morality changes from age to age. Law copes with life and accordingly change takes place. Morality that the public perceives, the Constitution may not conceive of.”
The latest initiative of the Supreme Court takes us back to the Delhi High Court’s judgement of 2009 decrimilizing homosexual acts between consenting adults and quashing as unconstitutiol the aforesaid provision of the Pel Code’s Section 377. The principal issue in question is whether any court can really decide on what form of sex is really “against the order of ture”. Quite obviously, homosexual acts must have coexisted with heterosexual intercourse for centuries even though homosexuals may have been a microscopic minority. The fear of strong and violent social rejection of homosexual behaviour and the fear of pel action must kept such behaviour extremely well concealed over the centuries. At the same time, the acceptance of heterosexual intercourse alone as normal sexual behaviour was stoked also by a tural preference for sexual behaviour that produced progeny and contributed to the need to have more and more people to populate this planet and work for development. Over the centuries this preference has turally changed to a converse preference that strives for a very low rate of population growth or a negative population growth considering that the Earth is now over-populated. In any case, a certain amount of homosexual behaviour is bound to continue even if any society deems it “against the order of ture”. It is also useful to keep in mind the fact that almost all sexual behaviour is a highly private matter, and therefore undue concern about the kind of sexual behaviour of consensual adults that takes place behind closed doors may be pointless and quite uncalled for. It might be far more useful to show much greater social and judicial concern for sexual behaviour that is crimil as in the case of rape. There is also need for far more expeditious and deterrent pel action against all crimil sexual behaviour if the true intent of the administration is to control and elimite rape and other associated crimes.