Section 377 IPC was enacted in 1860 by British colonial rulers in the heyday of Victorian morality. It punishes inter alia sexual intercourses between same sex persons with life imprisonment or rigorous or simple imprisonment up to 10 years. After 1967, homosexual acts between two consenting adults in private are no longer an offence in England. Homosexuality has been decriminalised in several countries of Asia, Africa and South America. The US Supreme Court in 2003 ruled in Lawrence vs Texas that criminalisation of homosexuality between consenting adults was unconstitutional because it violated their fundamental rights of liberty and privacy. Courts in other jurisdictions namely, Canada, Australia, South Africa, Fiji and Nepal, as also the European Court of Human Rights in Strasbourg, have invalidated laws criminalising sexual intercourse between same sex adults. Despite the above trend and the 172nd Report of our Law Commission submitted in 2000 favouring abolition of Section 377 this monstrous provision continued to remain on the statute.

Fortunately the Delhi High Court in its recent landmark judgment after a thorough and excellent analysis of the judgments of various courts and the legal and medical literature on the subject has ruled as follows: Section 377 insofar it criminalises consensual sexual acts of adults above 18 years of age in private is violative of the fundamental rights guaranteed by Articles 21 (personal liberty) and Articles 14 and 15 (non-discrimination). The High Court has not struck down Section 377. It has expressly stated that Section 377 will continue to govern non-consensual sex involving minors.

... contd.