criminalisation of sex between consenting adults

Carnal intercourse against the order of nature:

The fallacy in the Judgment of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (supra) is that:

i. The offence of “carnal intercourse against the order of nature” has not been defined in Section

377. It is too wide, and open-ended, and would take within its sweep, and criminalise even sexual acts of consenting adults in private.

In this context, it would be instructive to refer to the decision of a Constitution Bench of this Court in A.K. Roy v. Union of India [ (1982) 1 SCC 271] wherein it was held that:

“ 62. The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi. The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither the criminal law nor the Constitution requires the application of impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fall within the proscribed area, when measured by common understanding….” (emphasis supplied) 56 The Judgment does not advert to the distinction between consenting adults engaging in sexual intercourse, and sexual acts which are without the will, or consent of the other party. A distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature.

Furthermore, consensual relationships between adults cannot be classified along with offences of bestiality, sodomy and non-consensual relationships.

Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination.

Section 377 insofar as it criminalises voluntary sexual relations between LGBT persons of the same sex in private, discriminates against them on the basis of their “sexual orientation” which is violative of their fundamental rights guaranteed by Articles 14, 19, and 21 of the Constitution. Continue reading “criminalisation of sex between consenting adults”