SC judgement on Section 377 to be considered for pending prosecutions too

NEW DELHI: All cases under Section 377 pending in court will be dealt with on the basis of the Supreme Court judgement on homosexuality on Thursday. The SC while decriminalising homosexuality said that it will be relied upon for all pending matters before courts. 

"The declaration of the reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages," the landmark judgement said.

The SC in its judgement has said that homosexuality is something that is based on sense of identity. "It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity." 

"To compel a person having a certain sexual orientation to proselytize to another is like asking a body part to perform a function it was never designed to perform in the first place. It is pure science, a certain manner in which the brain and genitals of an individual function and react. Whether one's sexual orientation is determined by genetic, hormonal, developmental, social and/or cultural influences (or a combination thereof), most people experience little or no sense of choice about their sexual orientation," the judgement states.

In four separate but concurring judgements, the top court set aside its 2013 verdict in the Suresh Kaushal case which had re-criminalised consensual unnatural sex.

The bench said the other aspects of Section 377 of the IPC dealing with unnatural sex with animals and children remain in force. "Any kind of sexual activity with animals shall remain a penal offence under Section 377 of the IPC," the bench said.