India’s top court to review colonial-era law criminalising gay
INDIA - India may be on the verge of a major victory for gay rights after the country’s supreme court agreed to re-examine a colonial-era law outlawing sex between men.
The court yesterday said it would refer the question of the validity of section 377 of the Indian penal code to a larger bench for examination before October this year. 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 1,347 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 for homosexual acts under the legislation but activists say it is regularly used to blackmail and intimidate LBGTI Indians as well as to stymie HIV/ Aids prevention efforts. “A section of people or individuals who exercise their choice should never remain in a state of fear,” the court said, in response to a case lodged by LBGTI activists arguing the ban has put them at constant risk of arrest. “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 constitution.”Article 21 of the Indian constitution reads: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The ban on homosexual sex was overturned by the Delhi high court in 2009 but was reinstated by the supreme court four years later in a judgment that drew widespread condemnation, including from the United Nations. The law was thought to be vulnerable to legal challenge since a landmark September judgment that recognized article 21 guaranteed a right to privacy. Several supreme court judges noted that sexual orientation fell under the privacy umbrella. Anand Grover, a senior lawyer who argued the case that initially overturned the law, said in light of the privacy judgment, this year’s challenge had “no choice but to succeed”.
(Theguardian.com)