LGBT activists have campaigned against IPC Section 377 for years. The Supreme Court today ruled that gay sex would no longer be a crime in India. (Photo: PTI)

Consensual gay sex is not a crime, the Supreme Court ruled today. This brings a successful end to a fight against Section 377 of the Indian Penal Code (IPC) that began in 1994. The first petition against the Section 377 making gay sex a criminal offence was filed after a group of health workers was denied permission to distribute condoms among male inmates in Tihar Jail of Delhi by the then superintendent Kiran Bedi.

Twenty-four years and many twists and turns later, the Supreme Court said this:

Consensual gay sex among adults is no longer crime.

Section 377 criminalising consensual unnatural sex is irrational, indefensible and manifestly arbitrary.

Section 377 stands partly struck down for being violative of the right to equality.

Section 377 was a weapon to harass members of the LGBT+ community, resulting in discrimination.

But sexual activity with animals and non-adults remains a penal offence under Section 377.

This means the Supreme Court has removed the illegality of homosexuality putting the act back in the realm of morality as dictated primarily by religious belief systems. Almost all religious beliefs and traditional law codes prohibit act of homosexuality.

The Arthshastra by Kautilya (written and expanded between 2nd century BCE and 3rd century CE) made it a duty of the king to punish those who indulge in homosexual acts. But in modern times, the law governing homosexuality, as enshrined in now partly repealed Section 377, came into Indias legal lexicon during British rule.

IPC of 1960 incorporated the Buggery Act of 1533 passed by Parliament of England during the reign of King Henry VIII. The Buggery Act had been passed to empower the government to check sodomy and bestiality and punish the violators.

Before the Buggery Act was passed by the English parliament, sodomy and bestiality were dealt with by church courts. The priests used to decide the punishment for persons indulging in sodomy and bestiality.

India had no codified law to deal with similar practices when IPC was drafted and enforced in the country by the British crown, and religious texts were the dominant guide to decide on the acts of homosexuality. Instead of described as legal or illegal, gay sex was viewed from the prism of morality.

Quran tells a story of the "people of Lot" facing the wrath of God for engaging in lustful carnal acts. Traditional Islamic jurisprudence forbids acts of homosexuality attracting punishment including death penalty.

Bible has references to homosexuality. In fact, the term sodomy originates from the Biblical reference to acts of carnal intercourse at a place called Sodom. But despite various references to homosexuality in Bible, the book does not encourage or approve of gay sex.

The religious texts related to Hinduism have repeated references to homosexuality being in practice. But like other belief system, Hinduism also advocated the purpose of fornication as procreation. Fornication for recreation has not been a recommendation of the scriptures.

The Manusmriti categorized gay sex as a crime involving a punishment of purification by performing prescribed rites. Failure of getting purified led to loss of caste. The relatively lighter punishment in the most famous law book of ancient India suggests that homosexual acts were more a question of morality than a problem of law.

The Supreme Court verdict today has restored the originality by freeing the acts of homosexuality from the clutches of laws, and put it back in the realm of morality. The verdict has taken away the right from the state to punish a person indulging in the acts of homosexuality, considered against the order of the nature till now.

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