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India’s Top Court to Review Law Criminalizing Homosexuality

  • Anjana Pasricha

FILE - Participants displays a rainbow flag and cheer as gay rights activists and their supporters march during a gay pride parade in New Delhi, India, Nov. 12, 2017.

In a boost for the gay community in India, the country's Supreme Court said Monday that it would review a British-era law that criminalizes homosexuality and that no one should have to live in fear due to sexual orientation.

In 2013, the top court reinstated the law that considers same gender sex as “carnal intercourse against the order of nature” and punishable by up to 10 years in prison.

In remarks that differed significantly from an earlier stance, the court said “the order of nature is not a constant phenomenon. Societal morality also changes from age to age.”

Monday’s decision came in response to a petition from five members of the LGBT (Lesbian, Gay, Bisexual and Transgender) community who said they live in fear of prosecution for their sexual preferences.

Activists' hopes

According to the court, the 2013 judgment needs to be reconsidered because "the confines of law can't trample or curtail the inherent right to life and liberty."

FILE - A group of Indian activists hold a banner against section 377 of the Indian Penal Code that criminalizes homosexuality during a protest in Mumbai, India, Dec. 11, 2013.
FILE - A group of Indian activists hold a banner against section 377 of the Indian Penal Code that criminalizes homosexuality during a protest in Mumbai, India, Dec. 11, 2013.

The decision to reinstate the controversial law known as Section 377 was widely criticized as a retrograde step and a huge setback for the gay rights movement, which had celebrated in 2009 when the court struck down the measure. Activists said the community felt “abandoned” by the court.

Activists' hopes the top court will take a different position and strike down the law as unconstitutional rest largely on a recent judgment that has upheld privacy as a fundamental right and said, "The privacy of the home must protect the family, marriage, procreation and sexual orientation, which are all important aspects of dignity."

After that judgment, Anjali Gopalan, head of AIDS awareness group the Naz Foundation, said, “Hope seems to have emerged again in people’s hearts.” She has been at the forefront of the legal battle for gay rights.

The top court has also asked the government to clarify its stand on homosexuality.

It is not clear what position the government, led by the Hindu nationalist Bharatiya Janata Party, will take. In 2014, BJP members of parliament had blocked efforts to move a private members bill to scrap Section 377.

Conservative opposition

Conservative religious groups, Hindu, Muslim and Christian, which believe that homosexuality violates public morality, are not in favor of overturning the law. In response to a petition filed by them, the Supreme Court reinstated the law after it was struck down.

FILE - Gay rights activists watch a news channel covering the Supreme court's decision on gay sex in Mumbai, India, Feb. 2, 2016.
FILE - Gay rights activists watch a news channel covering the Supreme court's decision on gay sex in Mumbai, India, Feb. 2, 2016.

Activists say a strong law protecting gay rights will help change attitudes in a country where homosexuality is frowned upon by many segments of society. It was a largely taboo subject until the legal battle turned the spotlight on the issue and encouraged some members of the community to come out in the open and hold events like gay pride marches in major cities.

FILE - Hundreds participated in the 10th gay pride march held in the Indian capital on Nov. 12, 2017.
FILE - Hundreds participated in the 10th gay pride march held in the Indian capital on Nov. 12, 2017.

India is one of about 75 countries that outlaw homosexuality. And that has frustrated activists like Gopalan. “A country like Nepal, they have scrapped it. They have an openly gay person in parliament. So why would a country like ours, which is supposed to be a thriving democracy, what is holding us back?” she told VOA recently.


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