India's Supreme Court orders review of gay sex ban

LGBT rights activists take part in the Bengaluru Gay Pride March 2017 in Bangalore, on Nov 26, 2017.
LGBT rights activists take part in the Bengaluru Gay Pride March 2017 in Bangalore, on Nov 26, 2017.PHOTO: AFP

NEW DELHI (NYTIMES) - In a possible advance for gay rights in India, the Supreme Court ordered a review of Section 377, a colonial-era law reinstated in 2013 that criminalises consensual sex between men.

Responding to a petition filed by members of the gay, bisexual and transgender community who said they felt persecuted for their sexual orientation, a three-person bench of judges on Monday (Jan 8) referred Section 377 to a larger bench for reconsideration, noting that Indians who are gay "should never remain in a state of fear," and that "societal morality also changes from age to age."

The decision to revisit Section 377 comes after a landmark decision in August 2017, when the Supreme Court ruled that all Indian citizens have a constitutional right to privacy.

In the judgment, the court wrote that "sexual orientation is an essential attribute to privacy."

Gay rights activists said they were elated by Monday's decision, if still cautious.

Introduced in 1861, Section 377 of the Indian Penal Code imposes a 10-year prison sentence on "carnal intercourse against the order of nature with man, woman or animal."

It most often applies to sex between men, but also extends to oral and non-vaginal sex of any kind.

The push to strike down the law gained momentum in 2001, when Anjali Gopalan, executive director of the Naz Foundation, an AIDS awareness group, filed a lawsuit challenging it.

In a major victory, the highest court in New Delhi, the capital, ruled in 2009 that Section 377 was unconstitutional.

With Monday's decision, Anand Grover, a lawyer leading the push to invalidate the law, said a new verdict could be reached in the first half of this year.

"I'm in high spirits," he said. "I always look at things in a positive manner and this is more than positive."

Reacting to the Supreme Court decision, Subramanian Swamy, a prominent member of Parliament with the governing Bharatiya Janata Party, told Asian News International, an Indian news network, that homosexuality was not a problem as long as people "don't celebrate it, don't flaunt it, don't create gay bars to select partners."

He said Section 377 was still necessary. "If you flaunt it," he said, "it has to be punished."