Section 377 judgment will be considered in all pending prosecutions: SC

A five-member Constitution Bench of the Supreme Court is expected to pronounce by 10.30am on Thursday its verdict on a group of petitions seeking to decriminalise Section 377 of the Indian Penal Code (IPC), which criminalises gay sex.

Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term that may extend to 10 years, and shall also be liable to pay a fine.

Human rights activists claim the possible decriminalisation of Section 377 will be a major step toward removing the stigma around same sex relationships in India.

The bench hearing the Section 377 petition is headed by Chief Justice of India Dipak Misra and comprises Justice R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra. The bench had reserved its verdict on July 17 after hearing petitioners representing gay rights activists and those opposed to decriminalisation of Section 377.

In July during the Section 377 hearings, the Supreme Court bench had said courts cannot wait for a “majoritarian government” to enact, amend or strike down laws that violate fundamental rights.

However, the Supreme Court had also said that it would confine itself to the issue of how Section 377 restricts consensual acts between two adults and not go into wider social issues.

"If Section 377 of the IPC goes away entirely, there will be anarchy. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent," the Supreme Court said.

Interestingly, the Narendra Modi government left the issue of the constitutional validity of Section 377 to the “wisdom” of the Supreme Court, though it added it would intervene if other matters such as gay marriage came up.

The constitutional validity of Section 377 was first raised by the Naaz Foundation, an NGO, which in 2001 had approached the Delhi High Court. The Delhi High Court in 2009 struck down Section 377 as “illegal”.

However, in 2013, the Delhi High Court judgement on Section 377 was overturned by the Supreme Court, following which the current batch of curative petitions were filed.

(With PTI inputs)