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Gay sex punishable: SC verdict
Dec 12, 2013

A bench of justices G S Singhvi and S J Mukhopadhaya set aside the 2009 Delhi High Court judgement which had decriminalised gay sex. This will continue making gay sex — "irrespective of age and consent" — an offence punishable with a sentence up to life term under Section 377 in the Indian Penal Code. While setting aside the order, the apex court allowed the appeals filed by various social and religious organisations for making gay sex a criminal offence.

The apex court observed that there is no constitutional infirmity in section 377 of IPC which makes gay sex an offence. The court held that Section 377 did "not suffer from any constitutional infirmity" and that it was for Parliament "to consider the desirability and propriety of deleting Section 377 from the statute book or amend it, as per the suggestion made by the Attorney General. The AG had in March 2012 told the court that a proviso would have to be added in Section 377 to exclude sexual activity between the consenting adults in private." The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the legislature has chosen not to amend the law or revisit it." 

But section 377 violates the principles of equality and non-discrimination contained in Articles 14, 15 and 21 of the Constitution.  Article 14 guarantees equality before the law, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 guarantees protection of life and personal liberty.


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