Supreme Court in India Orders Review of Anti Gay Sex Ban
NEW DELHI — In a possible advance for gay rights in India, the Supreme Court ordered a review on Monday of Section 377, a colonial-era law reinstated in 2013 that criminalizes consensual sex between men.
Responding to a petition filed by members of the gay, bisexual and transgender community who said they felt persecuted for their sexual orientation, a three-person bench of judges referred Section 377 to a larger bench for reconsideration, noting that Indians who are gay “should never remain in a state of fear,” and that “societal morality also changes from age to age.”
“Law copes with life and accordingly change takes place,” the court said.
The decision to revisit Section 377 comes after a landmark decision last August, when the Supreme Court ruled that all Indian citizens have a constitutional right to privacy. In the judgment, the court wrote that “sexual orientation is an essential attribute to privacy.”
Gay rights activists said they were elated by Monday’s decision, if still cautious.
“It’s about time that Section 377 is thrown out,” said Harish Iyer, a well-known activist. “We are a small number and we need to keep shouting.”
Introduced in 1861, Section 377 of the Indian Penal Code imposes a 10-year prison sentence on “carnal intercourse against the order of nature with man, woman or animal.” It most often applies to sex between men, but also extends to oral and non-vaginal sex of any kind. According to the privacy judgment, about 200 people have been prosecuted under Section 377.
The push to strike down the law gained momentum in 2001, when Anjali Gopalan, the executive director of the Naz Foundation, an AIDS awareness group, filed a lawsuit challenging it.
In a major victory, the highest court in New Delhi, the capital, ruled in 2009 that Section 377 was unconstitutional, a decision that technically applied only to the New Delhi region but put enormous pressure on the government to appeal. In 2013, the Supreme Court restored the law, noting that India’s Parliament should discuss its merits.
With Monday’s decision, Anand Grover, a lawyer leading the push to invalidate the law, said a new verdict could be reached in the first half of this year.
“I’m in high spirits,” he said. “I always look at things in a positive manner and this is more than positive.”
Public opinion on homosexuality has shifted in some pockets of India, with urban centers hosting pride parades, weekly dance parties and film festivals for the gay community. But attitudes still remain deeply conservative, with some Indians objecting to homosexuality out of fear that couples will not be able to get married. Marriage is often viewed as a social pact between two families in India.
Reacting to the Supreme Court decision, Subramanian Swamy, a prominent member of Parliament with the governing Bharatiya Janata Party, told Asian News International, an Indian news network, that homosexuality was not a problem as long as people “don’t celebrate it, don’t flaunt it, don’t create gay bars to select partners.”
He said Section 377 was still necessary. “If you flaunt it,” he said, referring to homosexuality, “it has to be punished.”
Appearing before the Supreme Court on behalf of five petitioners, Arvind Datar, a lawyer, drew upon last August’s privacy ruling, arguingthat the “right to choose my partner is a part of my fundamental right to privacy.”
But he also pulled from a statement assembled by the five petitioners: Ritu Dalmia, a celebrity chef; Sunil Mehra, a journalist; Navtej Singh Johar, a dancer; Aman Nath, a hotelier; and Ayesha Kapur, a graduate in psychology.
In one voice, they wrote that “being open about one’s sexual orientation is essential to the pursuit of personal and professional success and happiness.”
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