Non consensual sex between same gender adults will invite penal liability under Section 377 of the IPC, the Supreme Court said Thursday while striking down a part of it which criminalised gay sex.
The apex court also said that engaging in any kind of sexual activity with an animal would be a criminal offence under Section 377 of the Indian Penal Code.
Chief Justice Dipak Misra and Justice A M Khanwilkar, who wrote the main 166-page judgement, said: "Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional.
"However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC."
It further said: "Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC."
The top court, which ruled that consensual gay sex is not a crime, said the Section assumes characteristic of "unreasonableness" as it becomes a weapon in the hands of the majority to "seclude, exploit and harass" the LGBT community.
"It shrouds the lives of the LGBT community in criminality and constant fear mars their joy of life. They constantly face social prejudice, disdain and are subjected to the shame of being their very natural selves. Thus, an archaic law which is incompatible with constitutional values cannot be allowed to be preserved," the court said.
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It said the LGBT community possesses the same "human, fundamental and constitutional" rights as other citizens of the country.
The court said that a perusal of Section 377 of the IPC reveals that it classifies and penalises persons who indulge in sex with the object to protect women and children from being subjected to carnal intercourse.
"That being so, now it is to be ascertained whether this classification has a reasonable nexus with the object sought to be achieved. The answer is in the negative as the non-consensual acts which have been criminalised by virtue of Section 377 IPC have already been designated as penal offences under Section 375 IPC and under the POCSO Act," it said.
Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.
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