The Supreme Court of India is veering towards legalizing gay sex

• The apex court proclaimed on Wednesday that it is of the view that “two consenting adults even if involved in ‘unnatural sex’, will not be liable for any kind of criminal action or prosecution”.
• In 2009, the Delhi High Court passed a landmark decision wherein it ruled that the law could not be applied to consensual sex.
• The Supreme Court reversed the High Court’s decision and reinstated the law in 2013.
  
• This homosexuality law came into being in the 1860s when the British colonists introduced Section 377.
• UK decriminalised sexual activity between men over 50 years back, but, like India, many of its former colonies, including Singapore, Zimbabwe, Kenya and Malaysia, are yet to legalise homosexuality.

The Indian gay community may soon be able to heave a collective sigh of relief after the Supreme Court of India strongly suggested yesterday (11 July) that it is leaning towards repealing a law that criminalises the act of gay sex.

The court proclaimed that it is of the view that “two consenting adults even if involved in ‘unnatural sex’, will not be liable for any kind of criminal action or prosecution”.

A five-judge bench headed by Chief Justice of India Dipak Misra began hearing petitions challenging Section 377 of the Indian Penal Code that criminalising consensual gay sex filed by a group of gay and lesbian Indians on Tuesday (10 July). The hearing is slated to last around two weeks.

This group of petitioners includes prominent individuals including businesswoman Ayesha Kapur, celebrity chef Ritu Dalmia, journalist Sunil Mehra and hotelier Aman Nath.

In fact, this hearing will be quite different from the earlier ones in the sense that some of these petitioners will actually get a chance to share with the court how this law has negatively affected their lives.

Additional solicitor general Tushar Mehta on Wednesday also handed over an affidavit by the Centre that clearly stated that the government has left the constitutional validity of the law to the “wisdom of the court”. This basically means the Centre will not challenge the court’s decision, whatever it may be.

This homosexuality law came into being in the 1860s when the British colonists introduced Section 377. The law essentially states that “whoever voluntarily has carnal intercourse against the order of nature” will be punished with imprisonment for life.

Ironically, UK decriminalised sexual activity between men - the law never applied to women - over 50 years back in 1967. But, like India, many of its former colonies, including Singapore, Zimbabwe, Kenya and Malaysia, are yet to legalise homosexuality.

In 2009, the Delhi High Court passed a landmark decision wherein it ruled that the law could not be applied to consensual sex, but that decision was only valid in the territory of India’s capital city, Delhi. It did, however, raise the hopes of around 2.5 million Indians who, according to government figures from 2012, identify themselves as gay.

These hopes were subsequently crushed by the Supreme Court who reversed the High Court’s decision and reinstated the law in 2013 after various religious groups protested the decriminalisation.

Then in August 2017, another glimmer of hope was doled out by the Supreme Court who ruled that individual privacy is a “guaranteed fundamental right” and that “sexual orientation is an essential attribute of privacy.” By doing this it essentially reversed its own ruling against gay sex.