In the Indian Penal Code that dates back to 1862,the chapter XVI deals with offences against the human body.In this, the section 377 deals with unnatural ( carnal) intercourse with humans or animals. The other important clause/ implications is 'AGAINST THE ORDER OF NATURE'. This is where the clash of our Indian traditions and the gay unions come. Ironically, this has been happening since ancient times behind closed doors or closed circles, so, it reality, it is nothing very new that we should struggle so much with.
Our IPC is based on the British laws and was in place during the British rule. If one looks at LGBT in England, it was NOT allowed under the Buggery Act of 1533. But as late as 1967, sexual acitivity between men was de-criminalised. Interestingly, sexual activity between women was not in the original law.
Same sex marriages were legalised in England only around 2014 and even this is not legal in Northern Ireland.
So, what this means is even the British Society, has struggled for years to come up with the idea of accepting gay relationships and marriages. It is no surprise that even in India, we are or would under the same turmoil.
Given the rapid access and spread of internet, youths and adults moving around for various reasons and the way the world is changing its views, we in India too, should be prepared to accept gay relationships. Here the job of the Supreme Court is tough. It should start by accepting in a phased manner.
First, it should recongise these sexual orientations, altough abnormal in the traditional sense can be permitted provided no harm is done (socially, financially and legally). This would help in lowering the stigma around LGBT.
Second, it should direct the states to have stringent laws with regards to ensuring safety of the LGBT.
Third, it should set a legal framework along with public consultation, with regards to the legalisation of such relationships into a formal marriage.
Fourth, it should also pass rules that regulate the rights of property of people in the LGBT from the family homes and the homes that they enter after the marriage is legalized.
Lastly, it should also have clear plans and guidelines regarding the care of the children who are adopted or fathered out of surrogacy etc, their educational rights, property rights etc.
So, in short, yes the honorable SC has to soften its stance and pass a landmark judgement in a phased manner because, the gay relationships etc are well established and if the SC does not accept it, then we are just delaying the inevitable and inviting more trouble.