In a disturbing ruling, the usually progressive and interventionist Supreme Court of India has recriminalized gay sex, on non-interventionist grounds.
Section 377 of the Indian Penal Code holds that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits an unnatural offence. There are two issues here: first, the law itself, and second, the interpretation of the law to include gay sex as being "against the order of nature."
In 2009, the Delhi High Court struck down Section 377, stating:
We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.
We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15.
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