India's high court to review law that bans gay sex

By Allen Cone  |  Jan. 8, 2018 at 3:52 PM
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Jan. 8 (UPI) -- India's Supreme Court on Monday said it will review a ruling four years ago upholding the constitutional validity of a penal code that criminalizes same-sex relations between consenting adults.

A three-judge bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud said the "case requires reconsideration" after ruling in 2013 that intercourse between members of the same sex is against the order of nature. The justices had overturned a New Delhi High Court declaring unconstitutional a law banning same-sex intercourse.

On Monday, the justices said "a section of people or individuals who exercise their choice should never remain in a state of fear" and "determination of the order of nature is not a constant phenomenon. Societal morality also changes from age to age."

The judges referred the matter to a larger bench among the nine justices and also want assistance from the government.

"What is natural may not be natural to the other," the judges wrote. "But the said natural and sexual orientation and choice cannot be allowed to cross boundaries of law but confines of law cannot trample or curtail the inherent right embedded in an individual under Article 21 of Constitution."

The petition was filed by five members of the lesbian, gay, bisexual, transgender and queer community. They said they feared being arrested.

"We could have gone to court on privacy grounds. But we didn't because that is not acceptance," Activist Gautam Bhan told to the Times of India. It is just tolerance that favors the elites who can afford to conduct their lives behind closed doors. The judgment is much more than that. It has spoken of privacy with dignity and equality. It reaffirms the Delhi High Court judgment in speaking of sexuality within the framework of constitutionality."

In December 2013, Justices G.S. Singhvi and S.J. Mukhopadhaya upheld the validity of the British-era provision from 1860 and set aside the Delhi High Court's 2009 verdict decriminalizing homosexuality. It ruled that Section 377, criminalizing gay sex, "does not suffer from the vice of unconstitutionality."

Also outlawed are oral sex between a man and woman, but penile-vaginal sex was not "against the order of nature."

LGBTQ activists and supporters welcomed the move.

"We still have hope from Indian judiciary," Akkai, an LGBTQ activist, said in a Twitter posting by Asian News International. "We are living in 21st century. All politicians & political parties must break their silence & support individual's sexuality."

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