SUPREME COURT: P34
India To Review Criminalising Gay Sex Laws
India may be on track for a major victory for gay rights after the supreme court agreed to reexamine a colonial-era law outlawing sex between men.
The court said on Monday that it would refer the question of the validity of section 377 of the Indian penal code to a larger bench for examination before October. Section 377, modelled on a 16thcentury British law, bans “carnal intercourse against the order of nature with any man, woman or animal”, and is punishable by life imprisonment.
About 1347 cases were registered in 2015, most in regards to alleged sexual offences against children. The supreme court observed in 2013 that fewer than 200 people had been convicted of homosexual acts under the legislation, but activists claim it is regularly used to blackmail and intimidate LBGTI Indians, and stymie HIV/Aids prevention efforts.
Harish Iyer, an activist, said he was “cautiously optimistic” that the court would scrap the 150-yearold law. Another LBGTI advocate, Aditya Bondyopadhyay, said the court had already signalled an intention to hear challenges to section 377, “but at least now we know when it is going to happen, we have a date”.
A three-judge bench of the court was responding to a case lodged by gay activists arguing that the ban had put them at constant risk of arrest.
“A section of people or individuals who exercise their choice should never remain in a state of fear,” the justices said.
“Choice can’t be allowed to cross boundaries of law, but confines of law can’t trample or curtail the inherent right embedded in an individual under article 21 of [the] constitution.”
Article 21 of the Indian constitution says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The ban on gay sex was overturned by the Delhi high court in 2009, but reinstated by the supreme court four years later in a judgment that drew widespread condemnation, including from the UN.