On Monday, the Supreme Court ordered a larger bench to re-examine Section 377 of the Indian Penal Code that criminalizes homosexuality. Under the British colonial-era law, homosexual acts are punishable by a 10-year prison term.
Despite seeing rare enforcement, Section 377 of the Indian Penal Code prohibits “carnal intercourse against the order of nature with any man, woman or animal.” Activists have accused authorities of using the law to intimidate, harass and blackmail members of the LGBT community.
Chief Justice Dipak Misra said Monday the apex court’s 2013 verdict upholding the law appears to violate individual sexual preferences.
“A section of people or individuals who exercise their choice should never remain in a state of fear,” said the Supreme Court’s three-judge bench.
“Choice can’t be allowed to cross the boundaries of law but the confines of law can’t trample or curtail the inherent right embedded in an individual under Article 21 [of the Constitution], the right to life and liberty,” the Supreme Court added.
The ban on gay 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, especially by the country’s homosexual community.
India’s approximately 33-million strong lesbian, gay, bisexual and transgender (LGBT) community hailed the Supreme Court’s Monday announcement.
An ‘obsolete law’
“The ruling is heart-warming and it renews hope,” Onir, a gay filmmaker, told DW. “My identity has been criminalized. As a gay artist I have problems expressing my views. I hope this is rectified soon.”
Shaman Gupta, a LGBT activist, was also jubilant. “Why are we holding on to an obsolete law when the world has moved ahead? Only people with a myopic vision can support such laws,” Gupta told DW.
Apart from India, a host of countries, including Afghanistan, Iran, Ghana, Mauritania, Pakistan, Nigeria, Qatar and Saudi Arabia, criminalizes homosexuality.
A larger bench of the Supreme Court is expected to announce a verdict on the law later this year.
Activists accuse authorities of using the law to intimidate, harass and blackmail members of the LGBT community
Glimmer of hope
In August last year, the apex court in its right to privacy judgment said that sexual orientation was an essential attribute of privacy. In its seminal judgment, the court ruled that discrimination against an individual on the basis of sexual orientation was deeply offensive to the dignity and self-worth of an individual.
Legal experts say it is only a matter of time before Section 377 was repealed.
“The privacy judgment was the turning point and shows the present thinking of the Supreme Court. There is a reason for optimism,” Advocate Mahesh Jethmalani told DW.
Some lawyers say the law is a blot on India’s international reputation.
“We are a hypocritical society that entertains false notions of morality. We should move ahead with the world,” Dushyant Dave, a New-Delhi based lawyer, told DW.
The Delhi High Court’s 2009 ruling had given much confidence to India’s gay community, which has held a number of gay pride events and homosexual film festivals in the past few years.
“But in 2013 the doors were shut upon us again,” said Tony Christopher of the Queer Professional Network.
Jerry Johnson, a gay rights activist in Mumbai, says the criminalization of gay sex has increased since 2013.
“We have been marginalized even more. Homosexual people can’t even interact freely,” Johnson told DW.
The Supreme Court’s decision on Monday paves the way for a larger panel of Indian judges to review the top court’s 2013 verdict. It is the latest development in a long-fought legal debate over the law passed by the British in the 1860s.