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India’s Supreme Court to review law criminalising homosexuality

Joseph McCormick January 8, 2018
LGBT+ activists at Delhi Pride, 2017. (Photo: SAJJAD HUSSAIN/AFP/Getty Images)

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India’s highest court has said that it will review a ruling upholding a law criminalising homosexuality.

The Supreme Court of India on Monday said it would review a four-year-old ruling holding up the constitutional validity of Section 377.

A three-judge bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud said “the case requires reconsideration”.

Indian LGBT rights activists take part in the Bengaluru Gay Pride March 2017 in Bangalore on November 26, 2017. / AFP PHOTO / Manjunath KIRAN (Photo credit should read MANJUNATH KIRAN/AFP/Getty Images)
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Back in 2013, a ruling found that Section 377, which criminalises gay sex “does not suffer from the vice of unconstitutionality.”

The ruling from 2013 overturned a ruling from New Delhi’s High Court which stated that the law was unconstitutional.

Monday’s decision said “a section of people or individuals who exercise their choice should never remain in a state of fear” and “determination of the order of nature is not a constant phenomenon. Societal morality also changes from age to age.”

The matter will now go to a larger bench of Supreme Court justices.

“What is natural may not be natural to the other,” the judges wrote on Monday.

“But the said natural and sexual orientation and choice cannot be allowed to cross boundaries of law but confines of law cannot trample or curtail the inherent right embedded in an individual under Article 21 of Constitution.”

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A petition was filed by five members of the LGBT community who said they feared being arrested.

“We could have gone to court on privacy grounds. But we didn’t because that is not acceptance,” one activist told the Times of India.

The 2013 ruling by Justices G.S. Singhvi and S.J. Mukhopadhaya upheld Section 377 which stated that gay sex was “against the order of nature.”

More: Asia, India, India, supreme court

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