Supreme Court: View gay sex in context of changing times

Homosexuality must be seen in the context of changing society, the Supreme Court observed on Thursday while responding to petitions challenging a 2009 landmark judgement that decriminalised homosexual sex.

Several NGOs and religious organisations have challenged the 2009 Delhi High Court order that legalised gay sex among consenting adults by striking down section 377 of the Indian Penal Code (IPC).

While hearing the appeals, a bench of justices GS Singhvi and SJ Mukhopadhaya said such matters must be seen in the context of the changing society as many things which were earlier unacceptable have become acceptable with time.

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

When the petitioners argued that the 'order of nature' mentioned in Section 377 of IPC had attained a "traditional meaning" as understood by the society, the court replied asking who was expert to say what is 'unnatural sex'?

Section 377 of the Indian Penal Code defined homosexual acts as "carnal intercourse against the order of nature" and made them illegal.

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

Earlier, the bench asked groups challenging the legislation to explain how such acts were against the order of nature as stated by them.

The High Court's breakthrough judgement in July 2009 came after nine years of legal proceedings initiated by India's gay groups.

The verdict was challenged by two Christian church coalitions, three Muslim NGOs, two Hindu astrologers, a disciple of yoga guru Baba Ramdev, an NGO run by a former Delhi police officer, and an environmentalist.