India's highest court to review colonial-era law criminalising gay sex

Supreme court to re-examine legislation activists say is used to blackmail LGBTI Indians and block HIV and Aids initiatives

The Guardian, Michael Safi , Mon 8 Jan 2018

Activists on a gay pride parade in Delhi in November. Section 377 of the
penal code bans homosexual intercourse. Photograph: AP

India may be on track for a major victory for gay rights after the supreme court agreed to re-examine a colonial-era law outlawing sex between men.

The court said on Monday that it would refer the question of the validity of section 377 of the Indian penal code to a larger bench for examination before October.

Section 377, modelled on a 16th-century 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 of homosexual acts under the legislation, but activists claim it is regularly used to blackmail and intimidate LBGTI Indians, and stymie HIV/Aids prevention efforts.

Harish Iyer, an activist, said he was “cautiously optimistic” that the court would scrap the 150-year-old law. Another LBGTI advocate, Aditya Bondyopadhyay, said the court had already signalled an intention to hear challenges to section 377, “but at least now we know when it is going to happen, we have a date”.

A three-judge bench of the court was responding to a case lodged by gay activists arguing that the ban had put them at constant risk of arrest. “A section of people or individuals who exercise their choice should never remain in a state of fear,” the justices said.

“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 [the] constitution.”

Article 21 of the Indian constitution says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The ban on gay sex was overturned by the Delhi high court in 2009, but reinstated by the supreme court four years later in a judgment that drew widespread condemnation, including from the UN.

The law was thought to be vulnerable to legal challenge since a landmark judgment in September, which recognised that 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 the latest challenge had “no choice but to succeed”.

Bondyopadhyay said it was clear the court had been increasingly bothered by its earlier judgment upholding the ban and was looking for an opportunity to correct it.

“There has been so much criticism of the judgment, and mobilisation on the ground and acceptance levels have gone up by a lot, [despite] the conservative forces in the ruling party,” he said.

The ruling Bharatiya Janata party is seen as generally hostile to gay rights, while Congress, India’s main opposition party, placed the overturning of section 377 in its most recent election manifesto.

But with the exception of one MP, Shashi Tharoor, the party was unwilling to burn political capital on the issue, Bondyopadhyay said.

India remains a conservative society, but the visibility of LBGTI Indians has grown in the two decades since the first gay pride parade attracted a few dozen marchers in Kolkata in 1999.

LBGTI scenes quietly thrive across the country, though some gay dating apps still flash with warnings that users may be committing criminal acts punishable by a life sentence.

A comprehensive survey of young Indians by the Centre for the Study of Developing Societies last year found 61% regarded homosexual “acts” as wrong. Respondents aged 15-17 were most accepting, while contrary to trends elsewhere, young Indians in villages were more accepting (29%) than their counterparts in big cities (21%).

Prominent Hindu spiritual gurus such as the retail and yoga magnate Baba Ramdev are vocal opponents of homosexuality, but Iyer said the majority religion in India had no official injunction against it.

Some scholars have argued that Hindu scriptures and epics repeatedly reference, though do not necessarily endorse, same-sex intercourse, and comfortably accommodate the idea of people transitioning gender.

“I think respect for homosexuality is part of Indian culture and homophobia is a western import,” Iyer said. “I am fighting for the right to be Indian, to love everyone.”