Section 377 and Homosexual Sex

Section 377 and Homosexual Sex: In a huge setback for the LGBT (lesbian, gay, bisexual and transgender) community, the Supreme Court has set aside the Delhi High Court ruling that decriminalised homosexuality and had struck down Section 377. While setting aside the 2009 Delhi High Court order, the apex court observed that Section 377 is a valid constitutional provision. There is no constitutional infirmity in Section 377 of IPC which makes gay sex an offence punishable with up to life imprisonment, said a bench of justices GS Singhvi and SJ Mukhopadhaya while overruling the High Court verdict. 

Section 377 of IPC: Chapter XVI, Section 377 of the Indian Penal Code dating back to 1861, introduced during the British rule of India, criminalises sexual activities "against the order of nature", including homosexual acts. The section was declared unconstitutional with respect to sex between consenting adults by the High Court of Delhi on 2 July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary. 

There is a lot of debate being used and quoted against and for Section 377 IPC. In fact, 377 IPC itself does not identify homosexuals as being its subject. The actual law (IPC Section 377) states: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine". Therefore homosexuals are clearly not the targets. The law is clearly addressing "whosoever" and "man, woman or animal". The fact that this law has not been used against homosexuals (or against consenting adults) is borne out by the history of convictions under this law in India, wherein there has been no case of a consensual homosexual act being prosecuted / convicted under this act.