Supreme Court states that homosexuality was NOT a crime under the penal code before 1860

The Supreme Court on Thursday questioned the basis on which homosexual acts could be considered 'against the order of nature' as defined under section 377 of the penal code.

Noting that homosexuality became an offence with the enactment of the Indian Penal Code in 1860, a bench comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhyay pointed out that it was not an offence before that. High court had decriminalised consensual homosexual acts.

'How do you say that this is unnatural?.. It was not an offence in 1859 or 1857,' Justice Mukhopadhyay said.

The bench, which was hearing petitions challenging a Delhi High Court order decriminalising homosexual acts among consenting adults, stressed that section 377 had to be tested on the touchstone of fundamental rights guaranteed under the Constitution.

The court asked the anti-gay rights petitioners to go by modern social understanding on the subject and show if such sex was considered unnatural by the doctors.

With the court repeatedly asking the petitioners to prove that homosexuality was unnatural, senior counsel Amarendra Sharan stressed that he did not need to prove that as the petitioners had admitted it as a fact in front of the high court.

He pointed out that Naz Foundation, in its petition before the high court, had sought quashing of section 377 to the extent it applied to private sexual acts among consenting adults.