Sex between lesbians and gays may still be a taboo but the Supreme Court on Wednesday questioned the basis of declaring such acts as offences under Section 377 of the Indian Penal Code.

Wondering who is a complainant in case two consenting adults have sex, the bench of Justices GS Singhvi and SJ Mukhopadhyay asked, “There are three ingredients that must combine for purpose of constituting an offence. Without a complainant and accused, how can there be an offence?”

The question struck at the root of arguments advanced by lawyers defending the validity of Section 377 (unnatural sex against the order of nature). After the Delhi High Court decriminalised gay sex allowing same sex couples to have intercourse in private, the question posed by the apex court sought to reason the correctness of upholding the HC order.

The bench said, “When you talk of an offence, you have a complainant and an accused. Then the question of consent does not arise. But here it is an act done with consent and in private.”

Sensing the seriousness of the point raised, senior advocate Amarendra Saran, who appeared for Delhi Commission for Protection of Child Rights, argued, “A complaint can even be filed by a third party, not necessarily a victim. There are other penal offences such as adultery where the act is done in private.”

But the Court cut the argument flat by stating, “A third party can complain if the act is in public. We like you to develop this debate further, not confined just to Section 377 but other penal offence which we generally perceive as obscene.”

The Court stretched the argument to situations where police tends to rein in couples indulging in public display of love without realising that consent is active between the two persons. It said, “Does any act in public constitute an offence violative of Article 14, 15 and 21 of the Constitution?” The Court asked the lawyers appearing in the case to address their arguments from this broad canvas.

At the same time, the Court even wished to know from the Centre whether promoting same sex relationships put persons at risk of contracting HIV/AIDS. “Has any scientific study been conducted in this regard?” While National AIDS Control Organisation puts homosexuals as high-risk groups, Additional Solicitor General (ASG) PP Malhotra informed that a study by World Health Organization has dealt with this issue in detail.