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Human Rights

India's top court to reconsider ban on gay sex

January 8, 2018

Activists have argued that the ban undermines the constitutional rights of India's LGBT community. In 2013, a Supreme Court decision recriminalized gay sex, making it an offense punishable by 10 years in prison.

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Homosexualität in Indien nach 150 Jahren legalisiert
Image: picture-alliance/dpa

India's Supreme Court on Monday announced its decision to reconsider a 2013 verdict that upheld the criminalization of sexual relations between same sex adults, marking what activists have hailed as a victory for LGBT rights in the country.

"A section of people or individuals who exercise their choice should never remain in a state of fear," said the Supreme Court's three-judge bench, according to New Delhi-based NDTV news channel.

Read more: Gay rights activists protest amid continuing LGBT discrimination

Despite seeing rare enforcement, Section 377 of the colonial-era Indian Penal Code prohibits "carnal intercourse against the order of nature with any man, woman or animal." Activists have accused authorities of using the law to intimidate, harass and blackmail members of the LGBT community.

"Choice can't be allowed to cross the boundaries of law but the confines of law can't trample or curtail the inherent right embedded in an individual under Article 21 (of the Constitution), the right to life and liberty," the Supreme Court added.

Members of the LGBT community in India have called for equal treatment under the law. In the wake of the deadly mass shooting at the Pulse nightclub in Florida, LGBT activists gathered across India to call for more protections.
Members of the LGBT community in India have called for equal treatment under the law. In the wake of the deadly mass shooting at the Pulse nightclub in Florida, LGBT activists gathered across India to call for more protections.Image: picture-alliance/dpa

'Constitutional rights'

In 2013, the Supreme Court issued a controversial ruling that overturned a lower court decision to decriminalize gay sex. The lower court's decision had been credited for allowing the LGBT community to thrive more openly.

In its ruling, the Supreme Court said that parliament alone could make an amendment to the law. Under Section 377, sexual relations between two same-sex adults are punishable by a maximum prison sentence of 10 years.

Read more: Hostile environment for LGBT refugees

Activists have argued that the colonial-era law undermines their constitutional rights by targeting an individual's choices, and, as such, should be scrapped.

"We want to emphasize that we are not asking for any special rights. We are asking for constitutional rights given to any citizen in the country," said Koninika Roy, an LBGT activist at the Humsafar Trust.

The Supreme Court's decision on Monday paves the way for a larger panel of Indian judges to review the top court's 2013 verdict. It is the latest development in a long-fought legal debate over the law passed by the British in the 1860s.

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ls/rc (Reuters, dpa)