Redux: India’s Highest Court Could Reverse Gay Ban

Redux: India’s Highest Court Could Reverse Gay Ban

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Although it’s been a long fight for their rights, the Lesbian, Gay, Bisexual and Transgender community in India is holding on to hope. Photo: The Better India
Although it’s been a long fight for their rights, the Lesbian, Gay, Bisexual and Transgender community in India is holding on to hope. Photo: The Better India

India’s Supreme Court ordered a review of Section 377 of the country’s Penal Code that criminalizes homosexuality in the South Asian country.

The court responded to a petition to the court to reconsider Section 377, a colonial-era law criminalizing homosexuality in India, filed by LGBT advocates. The activists claimed the LGBT community “felt persecuted for their sexual orientation,” reported the New York Times.

A three-person panel, including Chief Justice Dipak Misra, referred the request for reconsideration to a larger panel of judges. The panel noted that gay Indians “should never remain in a state of fear,” and that societal morality also changes from age to age,” reported the Times.

The judges stated that the “law copes with life,” noting changes happen throughout life, and “what is natural to one may not be natural to others,” reported the ABC News and the Times.

Arvind Datar, a lawyer appearing before the Supreme Court on behalf of five petitioners, referred to the court’s August privacy ruling.

Indian LGBT rights advocates saw a victory in August 2017 when the court made a fundamental decision regarding Indian citizen’s right to privacy. The ruling came five years after India’s Supreme Court reversed the 2009 ruling by the Delhi High Court that decriminalized homosexuality. The court’s decision reinstituted the colonial-era anti-gay law stating that it was up to India’s Parliament to change the law in 2013.

A year later, the court denied the Indian government’s appeal to review the law and pushed it back to lawmakers where various bills stalled in India’s Parliament.

In 2009, the Delhi High Court ruled that Section 377 in India’s Penal Code, an 1860 British colonial-era law, violated Article 14 of the Indian Constitution that guarantees equality, privacy and freedom of expression.

Violators face up to 10 years in prison and a fine if caught.

The New Delhi court’s ruling came after Anjali Gopalan, executive director of the Naz Foundation, India’s HIV/AIDS awareness organization, legally challenged the law to strike it down in 2001 followed by years of advocacy by Indian LGBT activist.

Datar argued that the “right to choose my partner is a part of my fundamental right to privacy.”

He also presented selected statements from the five petitioners: Ritu Dalmia, a celebrity chef; Sunil Mehra, a journalist; Navtej Singh Johar, a dancer; Aman Nath, a hotelier; and Ayesha Kapur a graduate in psychology, reported the Times.

In a single chorus they stated that, “being open about one’s sexual orientation is essential to the pursuit of personal and professional success and happiness.”

LGBT rights opponents expressed being gay was fine as long as it’s not flaunted following the court’s announcement.

A prominent member of the Indian Parliament with the governing Bharatiya Janata Party, Subramanian Swamy, told the Asian News International, an Indian news network, that homosexuality wasn’t a problem as long as people, “don’t celebrate it, don’t flaunt it, don’t create gay bars to select partners,” reported the Times.

He said that Section 377 was still necessary and “has to be punished,” if LGBTs flaunt their sexuality.

Pride celebrations and film festivals are becoming common in India with cities hosting new festivals every year and some Bollywood celebrities have spoken out on behalf of the LGBT community, yet many LGBT Indians still face societal stigma and discrimination.

Fewer than 200 people have been convicted of homosexual acts under 377 since its reinstatement in 2013, the Supreme Court noted, reported the Guardian. LGBT activists claimed the law was used to blackmail and intimidate LGBT Indians and stunt HIV/AIDS prevention efforts.

The court was persuaded by LGBT advocates to move the petition forward.

“I’m in high spirits,” Anand Grover, a lawyer leading the push to invalidate the law told the Times. “I always look at things in a positive manner and this is more than positive.”

Grover told the newspaper that a new verdict could be reached in the first half of this year, but no fixed date for a hearing has been set.

Indian LGBT activist also expressed hope and caution by the court’s decision Monday.

Aditya Bondyopadhyay said the court already signaled an intention to hear challenges to Section 377, reported the Guardian, “at least now we know when it is going to happen, we have a date.”

“It’s about time that Section 377 is thrown out,” Harish Iyer, a well-known activist, who remains cautious, told the media. “We are a small number and we need to keep shouting.”

Originally published by the Bay Area Reporter.

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