Supreme Court To Review Sec 377 That Criminalises Gay Sex

Supreme Court To Review Sec 377 That Criminalises Gay Sex

The Supreme Court of India has accepted a petition to review the colonial-era law that outlaws sex between men in the country.

The apex court said earlier this week that the question regarding the validity of section 377 of the Indian penal code will be referred to a larger bench for examination before October 2018.

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

In 2015, around 1,347 cases were registered, mostly related to alleged sexual offences against children.

Law Used For Blackmailing And Intimidating

The Supreme Court highlighted in 2013 that that fewer than 200 people had been found guilty under the legislation for homosexual acts, but according to activists it is often used for blackmailing and intimidating LBGTI Indians, along with affecting HIV/Aids prevention efforts.

Activist Harish Iyer, said he was “cautiously optimistic” that the top court would set aside the 150-year-old law.

The order passed by a three-judge bench came during the hearing of a petition filed by gay activists who argued that the ban was putting them at constant risk of arrest.

The justices noted that a section of people who “exercise their choice should never remain in a state of fear,” adding that while individual choices cannot cross “boundaries of law”, the “confines of law” cannot “curtail the inherent right embedded in an individual under article 21 of [the] constitution.”

The Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The ban on gay sex was first overturned by the Delhi high court in 2009, but the Supreme Court later reinstated it drawing widespread condemnation, including from the UN.

However a recent landmark SC judgement that recognized the right to privacy under article 21 had raised expectations that the ban on gay sex may be overturned.  Numerous Supreme Court judges noted previously that sexual orientation fell under the privacy umbrella.

SC Looking To Correct Earlier Decision

Anand Grover, the lawyer who had argued the initial case that had overturned the law stated that latest legal challenge had “no choice but to succeed”.

A LBGTI advocate, Aditya Bondyopadhyay  observed that it was evident that the court had been bothered by its earlier judgment upholding the ban and was looking for an opportunity to correct it.

He pointed out that there had been a lot of criticism of the judgement , and additionally, there was currently a lot of “mobilisation on the ground” as well as increased acceptance levels “[despite] the conservative forces in the ruling party.”  .

While the ruling Bharatiya Janata party is seen as to be hostile to gay rights, India’s main opposition party, Congress had placed the overturning of section 377 in its most recent election manifesto. But Bondyopadhyay pointed out that other than MP Shashi Tharoor, the party was unwilling to burn political capital on the issue.

India continues to be a conservative society, but there has been an increase in the visibility of LBGTI Indians in public.

A recent survey of young Indians carried out by the Centre for the Study of Developing Societies last year found that 61% considered homosexual “acts” as wrong. Survey respondents aged 15-17 were most accepting, as were young Indians in villages (29%).

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