Court can't legalise gay-sex until IPC amended: SC

PTI, NEW DELHI | 12 December 2013 21:48 IST

The Supreme Court today put the ball in Parliament's court to consider the "desirability and propriety" of deleting or amending the penal provision making sexual intercourse between people of same sex as a criminal offence attracting punishment up to life imprisonment.

A bench of justices G S Singhvi and S J Mukhopadhaya set aside the Delhi High Court's judgement which had in 2009 decriminalised physical relation between the same sex among consenting adults in private by making it clear that its verdict is merely on "correctness" of view taken by the high court. 

"While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of section 377 (unnatural offences) IPC and found that the said section does not suffer from any constitutional infirmity. 

"Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General," the bench said. 

The bench also took into account the arguments advanced by Attorney General (AG) G E Vahanvati, who was appointed as a amicus curiae in the matter and had emphasised that the court must take cognizance of the changing social values and reject the moral views prevalent in Britain in the 18th century. 

During the arguments, the AG had referred to the March 1, 2012 affidavit filed by the Home Ministry in which the Group of Ministers (GoM), constituted for looking into the issue relating to constitutionality of section 377 of the IPC, had recommended that there was no error in the order of the Delhi High Court. 

The GoM, however, had observed that the Supreme Court may take final view in the matter. 

Vahanvati had also argued that declaration granted by the high court may not result in deletion of section 377 of IPC from the statute book, but a proviso would have to be added to clarify that nothing contained therein shall apply to any sexual activity between the two consenting adults in private. 

With the apex court verdict, the operation of penal provision against gay sex has come into force. 

The bench said Parliament is authorised to delete or amend section 377 of IPC but till the time this penal provision is there, the court cannot legalise this kind of sexual relationship.

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