India’s Supreme Court announces review of gay ban

Delhi Pride 2015 (Pic: Akhil Kumar / Facebook)

Delhi Pride 2015 (Pic: Akhil Kumar / Facebook)

In a major development, India’s Supreme Court has announced that it will re-look at its 2013 decision to uphold the country’s ban on gay sex.

Just over two years ago, the court shocked the world when it overturned a ground breaking 2009 ruling by the Delhi High Court that repealed Section 377 of the Indian Penal Code, which makes it illegal to be gay and carries penalties including life imprisonment.

The Supreme Court justified its unexpected decision at the time by arguing that sex acts in themselves did not warrant constitutional protection and that the law should only be changed by lawmakers in parliament and not by the courts.

On Tuesday, three judges of the court heard a petition filed by gay rights activists and the NGO Naz Foundation urging it to reconsider its ruling. Thankfully, they agreed and announced that a five-judge bench, headed by the chief justice of India, will now decide on the matter.

“We believe that it is an important issue and it must be referred to a constitutional bench,” said Chief Justice T S Thakur.

The decision has been welcomed by human right and LGBT groups in India and around the world.

Last year, the country’s Home Affairs Ministry revealed that almost 600 people had been arrested under the anti-gay law in 2014. The real numbers were probably higher as some states did not submit any or all their figures to the ministry.

In December, retired senior judge and Chairperson of India’s Law Commission, Justice Ajit Prakash Shah, stated that the court had made a “mistake” by not striking down the criminalisation of homosexuality.

“Sexual minorities have been reduced to so called unapprehended felons after the judgement,” Shah said, adding that the court had “criminalised the existence of a class of people who are now condemned to live in shadow of fear.”

In addition to its criminalisation under the law, homosexuality is also a major social taboo in India.

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