Indian Supreme Court: Ruling might overturn anti-LGBT law

Protest against Section 377 in Sangli, India (Aarthi Pai photo via Orinam)
Protest in 2014 against Section 377 in Sangli, India (Aarthi Pai photo via Orinam)

India’s Supreme Court has raised hopes that it might overturn its 2013 ruling that reinstated the country’s anti-homosexuality law. But the court’s phrasing sounded like a warning that the court doesn’t want to overturn the law.

Supreme Court of India (Photo courtesy of Wikipedia)
Supreme Court of India (Photo courtesy of Wikipedia)

The court warned that if it declares privacy to be a fundamental right — an issue that it is currently debating — that could lead to a renewed, stronger legal challenge to the 2013 ruling that reinstated the anti-homosexuality law, Section 377 of the Penal Code, which dates back to British colonial times.

The court’s statement was widely reported in India, including in these articles:

This is an excerpt from coverage in CNN-News 18:

Right to Privacy: SC Indicates it May Re-look Homosexuality Judgment

A nine-judge bench, led by Chief Justice of India J S Khehar, observed that sexual orientation was a matter of privacy and if the court were to hold privacy as a fundamental right, then the 2013 judgment against homosexuality would be susceptible to a fresh legal challenge.

J S Khehar, chief justice of the Supreme Court of India. (Photo courtesy of The Times of India)
J S Khehar, chief justice of the Supreme Court of India. (Photo courtesy of The Times of India)

New Delhi: The debate surrounding the right to privacy took an interesting turn on Wednesday [July 19] with the Supreme Court indicating that its judgment against homosexuality may get reopened if privacy is assigned the status of a fundamental right.

A nine-judge bench, led by Chief Justice of India J S Khehar, observed that sexual orientation was a matter of privacy and if the court were to hold privacy as a fundamental right, then the 2013 judgment against homosexuality would be susceptible to a fresh legal challenge.

As the bench discussed the facets of the right to privacy, Justice D Y Chandrachud said it will be “extraordinarily dangerous” to give an exhaustive catalogue of what will constitute privacy.

“Marriage, procreation are facets of privacy… sexual orientation is also about privacy. If we say there is a fundamental right to privacy, our judgment in Naz Foundation becomes vulnerable,” observed the judge.

In Naz Foundation case, a two-judge bench had in 2013 ruled that Section 377 will continue making gay sex — “irrespective of age and consent” — an offence.

The court had held that Section 377 did “not suffer from any constitutional infirmity” and that it was for Parliament “to consider the desirability and propriety of deleting Section 377 from the statute book or amend it. Under Section 377, voluntary “carnal intercourse against the order of nature with any man, woman or animal,” is punishable with imprisonment from 10 years to life.

Les manifestants cherchent abrogation de l'article 377. (Photo du TheStar.com)
Demonstration in 2015 against India’s anti-LGBT Section 377. (Photo courtesy of TheStar.com)

This judgment had turned the clock back on the rights of homosexuals in the country, as the SC set aside the historic 2009 Delhi High Court judgment that decriminalised gay sex by holding that Section 377 of the Indian Penal Code, by criminalising consensual sexual acts of adults in private, violated the principles of equality and non-discrimination in the Constitution.

The review petition filed by Naz Foundation against this judgment was dismissed in 2014. But the case is still alive since the curative petition is still pending before the top court.

If the nine-judge bench elevates the status of the right to privacy, the ruling will come handy for Naz Foundation, which has asserted that private acts of consensual sex between consenting adults in private could not be criminalized by sanction of law. …

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Written by Colin Stewart

Colin Stewart is a 45-year journalism veteran living in Southern California. After his retirement from paid newspaper work in 2011, he launched Erasing 76 Crimes and helped with the Spirit of 76 campaign that assembled a multi-national team of 26 LGBTI rights activists to advocate for change during the International AIDS Conference in Washington, D.C., in July 2012. He is the president of the St. Paul’s Foundation for International Reconciliation, which supports LGBTQ+ rights advocacy journalism, including the Erasing 76 Crimes news site and the African Human Rights Media Network. Contact him via Twitter @76crimes or by email at info@76crimes.com. Mailing address: 21 Marseille, Laguna Niguel CA 92677 USA.

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