Section 377 criminally penalises so-called 'unnatural offences', even if the offence is a consensual sexual relationship. The Delhi high court declared that Section 377 of the IPC 'criminalises consensual sexual acts of adults in private' and it is 'violative of Articles 21, 14 and 15 of the Indian Constitution.'
However, the court added that Section 377 will 'continue to govern non-consensual' sex between homosexuals involving minors.
The issue of 'legitimatising homosexuality' has created a bitter national debate. Since most religious leaders have opposed the judgment, political leaders, including Prime Minister Manmohan Singh, have been cautious in their reactions on the issue.
While returning from the G-20 summit in Italy, when the prime minister was asked what his views on the high court ruling was, he merely responded, "I haven't discussed this matter with my Cabinet colleagues. When I go back, I will seek their views if anything further needs to be done or said in this regard."
Home Minister P Chidambaram also evaded the question, saying his personal opinion does not matter on this issue.
The Congress party would like the archaic law to be changed through due legal process. The Congress and United Progressive Alliance government would also prefer the media to treat the 'issue of decriminalising of homosexuality' as a Constitutional subject, rather than a cultural or religious issue.
Home Secretary Pillai, who believes in taking a middle-of-the road-solutions to problems, explained his views on the controversy regarding Section 377 and the judgment.
"There are some people who believe homosexuality is bad," he said. "It's their strong conviction. There are others who are equally strong in their conviction that it is their private affair and their reality. There are other shades of opinion on it. There are some who say that they don't mind homosexuality, but why should they call it a marriage? In their opinion, a marriage can only be between a man and a woman. It can't be between two men."
"So each person has his own view and when you look at it, you try to balance. I think the high court's judgment was a very balanced judgment. It brought out different issues and said here is the section that is violative of the Constitution and they said that you can't have such kind of relations between a minor and a major. That is still illegal. Now, as per the directions of the high court, we have to amend Section 377."
Pillai argued that the issue is sensitive, therefore the government will take a decision after taking into account the sensitivities of various sections of the national community. "If you are going to amend Section 377," the home secretary said, "you have to take different nuances into account and sensitivities of every different viewpoint."
