India’s Supreme Court has given a ray of hope to India’s LGBT community by agreeing to reopen the debate on the controversial Section 377 of the Indian Penal Code, a colonial-era law that criminalises homosexuality. The court was hearing a curative petition filed by LGBT activists that challenged its decision upholding the validity of the law in December 2013.
“There are important constitutional questions involved in the issues relating to decriminalising consensual gay sex within the privacy of a house,” the court said, referring the matter to a five-judge constitution bench. The petition, filed by gay rights activists and the NGO Naz Foundation, is the last judicial resort redressing grievances against a court’s verdict.
"A person's sexuality is his or her most precious, most private of rights. Any provision that penalises an adult person's expression of consensual sexuality in private is significantly unconstitutional,” advocate Kapil Sibal said in his opening argument to the Bench. LGBT activists across India have welcomed the move.
We're very happy, now we can produce facts and evidences in a better way -Rituparna Borah, LGBT Activist #Section377 pic.twitter.com/boTPq2FALa— ANI (@ANI_news) February 2, 2016
Hopeful to yet again in a democratic set-up have a way to argue for our rights- Gautam Bhan, LGBT Activist #Sec377 pic.twitter.com/KrM7ox4GBG— ANI (@ANI_news) February 2, 2016
Enacted in 1861, Section 377 decrees that a same-sex relationship is an "unnatural offence" that is punishable by a 10-year jail term. Last December, Indian Member of Parliament Shashi Tharoor's move to amend the law by a private bill had failed.
In December 2013, India’s apex court had reversed a landmark 2009 Delhi High Court ruling that decriminalised consensual homosexual acts. The Supreme Court had argued that it was up to the parliament to legislate on the matter. It also dismissed several review petitions on Section 377.
LGBT activists have argued that thousands of people who had gone public about their sexual identity faced the threat of persecution after the 2013 verdict. They also stated that criminalising gay sex amounted to a violation of the fundamental rights of the LGBT community.
While gay marriage has been legalised in countries such as the United States, France, Sweden, Spain and Nepal in the last few years, India stands with countries such as Ghana, Iran, Saudi Arabia and Pakistan in criminalising homosexuality.