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

India may be on trackfor a major victory for lesbian rights after the supreme court agreed to re-examine a colonial-era statute 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 its further consideration before October.

Section 377, modelled on a 16 th-century British statute, bans” carnal intercourse against the order of nature with any man, female or animal”, and is punishable by life imprisonment.

About 1,347 occurrences were registered in 2015, most in regards to alleged sex offences against children.

The supreme court observed in 2013 that fewer than 200 people had been convicted of lesbian acts under the legislation, but activists claim it is regularly used to blackmail and intimidate LBGTI Indian, 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 segment 377,” but at the 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 occurrence lodged by homosexual activists arguing that the ban had set them at constant danger of apprehend.” A section of people or individuals who exercise their choice should never remain in a state of anxiety ,” the justices said.

” Choice can’t be allowed to cross boundaries of law, but confines of law can’t trampling 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 their own lives or personal liberty except according to procedure established by law .”

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

The law was thought to be vulnerable to legal challenge since a landmark decision in September, which recognised that article 21 assured a privacy rights. Several supreme court judges noted that sexual orientation fell under the privacy umbrella.

Anand Grover, a senior lawyer who argued the example that initially overturned the law, said the latest challenge had” no choice but to succeeded “.

Bondyopadhyay said it was clear the court had been increasingly bothered by its earlier decision 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 adoption 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 segment 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 such issues, 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 warns that users may be perpetrating criminal acts punishable by a life sentence.

A comprehensive survey of young Indians by the Centre for the Study of Developing Societies last year detected 61% regarded homosexual “acts” as wrong. Respondents aged 15 -1 7 were most accept, while contrary to trends elsewhere, young Indian in villages were more accepting( 29%) than their equivalents in big cities( 21% ).

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

Some intellectuals 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 guess 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 .”

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