New hope that India will finally legalise homosexuality

Pic: Athlour

India’s LGBT community is hopeful after the Supreme Court announced that it will review the country’s continued criminalisation of same-sex love.

The court said on Monday it was preparing to reconsider its 2013 decision upholding Section 377 of the Indian Penal Code, which punishes “carnal intercourse against the order of nature” with imprisonment.

The decision follows the August 2017 ruling by the same court finding that the right to privacy is “a fundamental right” and that “sexual orientation is an essential attribute of privacy”.

This landmark ruling is seemingly incompatible with Section 377 and the court’s support for the ban.

Three justices of the court have now referred the matter to a larger bench of judges to assess whether the law is unconstitutional. Their statement on Monday appears to suggest that they already believe that it is.

The justices acknowledged that “the order of nature is not a constant phenomenon” and that “societal morality also changes from age to age”.

They added: “What is natural to one may not be natural to others… A section of people or individuals who exercise their choice should never remain in a state of fear.”

The discriminatory law is expected to come under review by the court before October.

The news was widely welcomed by LGBT activists, including those who had petitioned to the court to review the law.

Activist Harish Iyer expressed his “cautious optimism”, telling Mirror Now that, “Section 377 and right to privacy cannot be taken in the same breath.”

Koninika Roy, from the group Humsafar Trust, said that India’s LGBT community was not asking for special rights.

“We are only asking for rights which are given to us by the constitution,” said Roy. “I hope all our voices are being heard… we are not a minuscule minority”.

Section 377 was previously repealed for four years by the Delhi High Court in 2009. In 2013, however, the Supreme Court shocked the world when it overturned the lower court’s ruling and asserted that the ban on homosexuality was not unconstitutional.

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