India’s Supreme Court reviews homosexuality ban, hints at legalizing
A five-judge bench made the remarks while hearing a challenge to the country’s centuries-old homosexuality ban, ahead of a landmark ruling — expected in the coming weeks — on whether to overturn it.
“[Homosexuality] is not an aberration, but a variation,” said Justice Indu Malhotra. “Over the years, we have created an environment in the Indian society which has led to deep-rooted discrimination against people of same sex involved in a consensual relationship and this has impacted their mental health also.”
Section 377 of the Indian Penal Code prohibits “carnal intercourse against the order of nature with any man, woman or animal,” and makes gay sex punishable by up to 10 years in prison. The law was imposed during British colonial rule of India in the 19th century.
The Delhi High Court effectively decriminalized gay sex in 2009, saying the ban violated fundamental human rights. But the Supreme Court reinstated the ban in 2013 after an appeal from religious groups.
Earlier this year, however, the Supreme Court agreed to hear a challenge to the ban by LGBTQ activists, who say the ban is used to harass and blackmail gay people.
Manvendra Singh Gohil, an openly gay Indian prince and LGBTQ activist, told AFP the law was “draconian,” and called it a vestige of British Imperialism.
The law “has created utter chaos,” said Ashok Desai, a lawyer for one of the petitioners. Desai told the court that acceptance of homosexuality was not incompatible with ancient Indian traditions, referring to a transgender character in the Hindu epic Mahabharata.
On Tuesday, a lawyer for the powerful right-wing Hindu nationalist group Rashtriya Swayamsevak Sangh (RSS), which has close ties with India’s ruling BJP party, said the group supported overturning the homosexuality ban.
Raghav Awasthi acknowledged that the RSS had previously condemned homosexuality as a harmful import of Western culture, but had come to accept and recognize its place in Indian culture.
“Before the Indian Penal Code was promulgated… no ancient Indian criminal code prohibited homosexuality and consensual homosexual acts… those who are familiar with ancient Indian erotic sculptures would also be well aware that homosexual love was celebrated in India in ancient as well as early medieval times,” Awasthi wrote in a column for The Print.
“We must also acknowledge that Hindu society’s celebration of homosexuality is something that has a continuity with its past.”
Despite Awasthi’s statements, many right-wing Hindu activists and ruling lawmakers continue to oppose gay relationships and support a ban, and LGBTQ activists face opposition from opposing petitioners.
The Supreme Court is expected to hear arguments from groups that support the homosexuality ban on Tuesday.
But activists say they remain optimistic the ban will be thrown out.
“We are looking forward to a good judgment. We have our faith in the court,” said one anti-ban petitioner.
— With files from Reuters
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