British made gay sex crime, says apex court

A day after raising questions over meaning of the term “order of nature” in Section 377 of the Indian penal Code (IPC), the Supreme Court on Thursday referred to sculptures of Khajuraho to emphasise that gay sex was not an offence before the British enacted the IPC in 1860. Bhadra Sinha reports.

A day after raising questions over meaning of the term “order of nature” in Section 377 of the Indian penal Code (IPC), the Supreme Court on Thursday referred to sculptures of Khajuraho to emphasise that gay sex was not an offence before the British enacted the IPC in 1860.

On the second day of hearing on 16 petitions challenging the Delhi high court verdict decriminalising homosexual acts between consenting adults in private, a bench of justice GS Singhvi and justice SJ Mukopadhya said homosexuality should be viewed in the context of changing society.

“Many things, which were earlier unacceptable, have become acceptable with passage of time,” the bench told senior counsel Amarendra Sharan, who is representing the Delhi Commission for Protection of Child Rights.

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“Social issues could not be decided on the basis of sculptures,” Sharan replied.

“It is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse,” the bench, which had raised questions over the term “order of nature” in section 377 of IPC in the age of test tube babies and surrogacy, said.

“Who is the expert to define the term order of nature?” the bench had asked on Wednesday. On Thursday it said: “These things should be seen in the light of changing times where phenomena of live-in relationship, single parents and artificial fertilisation have become normal.

“Take the recent phenomena of live-in relationship, single parents and surrogacy. There is a case where a man is unmarried but wants to be a father and engage a surrogate mother. Thirty-forty years ago it was against the order of nature but now artificial fertilisation is a thriving business,” it added.

Court’s specific query is an attempt to get at the bottom of the controversy surrounding Section 377 of the IPC that criminalised homosexuality before HC read it down partly. It states that a person can be prosecuted if he has “carnal intercourse” and “unnatural sex” with a man, woman or an animal.