Law Beyond the Law

Abstract

As discussed in previous chapters, in its December 2013 verdict on consensual sex in private between two adults the Supreme Court of India (henceforth “the Court”) recriminalized homosexuality. Overturning the Delhi High Court’s decision on the constitutionality of Section 377 of the Indian Penal Code, the Court found that the said section does not suffer from any constitutional infirmity. Nevertheless, the Court in its verdict opined that the competent legislature shall be free to consider the desirability and propriety of amending or deleting Section 377 from the statute book. But this decision, as I have argued and continue to argue, is unconstitutional: There is a diversity of sexual preferences and homosexual sexual relations should be decriminalized and accepted based on the constitutional rights of gay men to privacy, to sexual identity, to personal freedom and to equal treatment, among others.