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India to review ruling on law criminalising homosexuality India to review ruling on law banning gay sex
(35 minutes later)
India’s supreme court has agreed to re-examine a previous judgment that upheld a law criminalising homosexuality, offering hope to gay rights organisations that have been holding vigils and demonstrations in Delhi. India’s top court is to review a decision that upheld a colonial-era law which criminalises gay sex, in a victory for rights campaigners at a time when the country is navigating a path between tradition and modernity.
A panel of three judges said the ruling in 2013 would be revisited by a larger bench of judges. The supreme court on Tuesday asked a five-judge bench to reconsider its 2013 ruling that only parliament can change the 1860 law, which imposes a 10-year sentence for gay sex.
“It is definitely a step forward,” lawyer Anand Grover said, as activistsoutside the courtroom cheered. “It is definitely a move forward,” said lawyer Anand Grover, as activists cheered outside the court.
The 2013 judgment reinstated colonial-era legislation that in effect outlawed gay sex and stunned many in India, overturning decades of slow progress and prompting protests. Related: Indian LGBT activists hold vigils before court rules on anti-gay law
The referral to a large bench of judges is the latest chapter in a long-running legal battle between India’s social and religious conservatives and the gay community over the law passed by the British in the 1860s. This is the last legal avenue for campaigners seeking to use the courts to strike down the law. If unsuccessful, any future decisions to lift the ban will rest with politicians, who are largely conservative and opposed to change.
In 2009, the Delhi high court effectively legalised gay sex in a landmark ruling that said the ban infringed on the fundamental rights of Indian people. That ruling emboldened activists, who started to campaign publicly against widespread discrimination and violence. The supreme court made a surprise ruling in 2013 that reinstated the ban on gay sex after a four-year period of decriminalisation.
But the supreme court reinstated the ban in 2013, saying responsibility for changing the law rested with lawmakers rather than the courts. After the hearing, gay rights activists outside the court sang: “We will be successful.”
Gay people and campaigners lodged a last-ditch curative petition – or appeal – to the supreme court to have the judgment reviewed and overturned. The human rights group Amnesty International India welcomed the court’s review, saying the law puts gay people under physical, mental and legal threat. “The supreme court has another chance to correct a grave error.”
Prosecutions for gay sex are rare, but activists say corrupt police use the reimposed law to harass and threaten gay people. Polls show about three-quarters of Indians disapprove of gay sex and are deeply traditional about other issues of sexuality, such as sex outside of marriage.
Gay sex has long been a taboo subject in conservative India, where homophobic tendencies abound. A lawmaker’s attempt to introduce a private member’s bill into parliament to decriminalise gay sex failed in December. India is one of 75 countries where gay sex is illegal, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association.
Although the law banning gay sex is rarely enforced in India, it is used to intimidate, harass, blackmail and extort money from gay people, activists say.
There are no official figures on the number of cases of harassment, and most go unreported as victims are too scared to report crimes to the police, fearing they will be punished too, activists say.
While the previous Congress-led government had pledged to repeal the law if it came to power again, it was crushed by Narendra Modi’s Bharatiya Janata party in general elections in May 2014.
In December, members of the BJP, which has an overwhelming majority in the lower house of parliament, scuppered a private member’s bill to scrap the law.
“It is about principles of freedom enshrined in our constitution,” said Shashi Tharoor, the opposition Congress politician who introduced the bill.