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Homosexuality may be "abnormal", but it is not unnatural, the Supreme Court said today, and challenged anti-gay groups to point out even a single piece of penal law in India under which homosexuality in particular is a punishable offence.
"Homosexuality may be abnormal for some, unnatural for some others. All abnormal sex is not unnatural. There is a difference between unnatural, natural and abnormal... And in each case it has to be proved that an individual act was against the order of nature," the court said, questioning the very logic behind the government generalising homosexuality as an unnatural offence under Section 377 of the Indian Penal Code (IPC).
A Bench of Justices G S Singhvi and S J Mukhopadhyay is hearing a bunch of petitions challenging a Delhi High Court judgment of July 2, 2009, decriminalising sexual intercourse among adults of the same sex.
The court questioned whether the framers of the IPC had, in the first place, ever intended the section to include homosexuality in its ambit as an unnatural offence. It pointed out that the act was not classified as an offence up to 1860, the year the IPC was framed.
In this context, the Bench noted that Sec. 377 does not mention homosexuality specifically, it only says "carnal intercourse" against the "order of nature" is punishable.
When advocate Amarendra Saran, representing Delhi Commission for Protection of Child Rights in court against gay groups, insisted that the section applied to all "carnal intercourse", the Bench shot back: "Homosexuality may not necessarily be connected with carnal intercourse. Homosexuality is a very wide term. Is there a prohibition of homosexuality under any penal law... No, there is no law saying homosexuality is unnatural." The court said society had changed, showing an increasing tolerance of live-in relationships, single parenthood and surrogacy.