India's Supreme Court has ordered a re-examination of a 2013 verdict that upheld the criminalization of sexual relations between same-sex adults. The ruling was welcomed by the LGBT community. Murali Krishnan reports.
Image: AP
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On Monday, the Supreme Court ordered a larger bench to re-examine Section 377 of the Indian Penal Code that criminalizes homosexuality. Under the British colonial-era law, homosexual acts are punishable by a 10-year prison term.
Despite seeing rare enforcement, Section 377 of the 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.
Chief Justice Dipak Misra said Monday the apex court's 2013 verdict upholding the law appears to violate individual sexual preferences.
"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.
Critics outraged by India gay sex law
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"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.
The ban on gay sex was overturned by the Delhi High Court in 2009, but was reinstated by the Supreme Court four years later in a judgment that drew widespread condemnation, especially from the country's homosexual community.
India's approximately 33-million-strong lesbian, gay, bisexual and transgender (LGBT) community hailed the Supreme Court's Monday announcement.
"The ruling is heart-warming and it renews hope," Onir, a gay filmmaker, told DW. "My identity has been criminalized. As a gay artist I have problems expressing my views. I hope this is rectified soon."
Shaman Gupta, a LGBT activist, was also jubilant. "Why are we holding on to an obsolete law when the world has moved ahead? Only people with a myopic vision can support such laws," Gupta told DW.
Apart from India, a host of countries, including Afghanistan, Iran, Ghana, Mauritania, Pakistan, Nigeria, Qatar and Saudi Arabia, criminalize homosexuality.
A larger bench of the Supreme Court is expected to announce a verdict on the law later this year.
Activists accuse authorities of using the law to intimidate, harass and blackmail members of the LGBT communityImage: AP
Glimmer of hope
In August last year, the highest court in its right to privacy judgment said that sexual orientation was an essential attribute of privacy. In this seminal judgment, the court ruled that discrimination against an individual on the basis of sexual orientation was deeply offensive to the dignity and self-worth of an individual.
Legal experts say it is only a matter of time before Section 377 is repealed.
"The privacy judgment was the turning point and shows the present thinking of the Supreme Court. There is a reason for optimism," Advocate Mahesh Jethmalani told DW.
Legal experts say it is only a matter of time before Section 377 is repealedImage: Picture-Alliance/AP Photo/T. Topgyal
Some lawyers say the law is a blot on India's international reputation.
"We are a hypocritical society that entertains false notions of morality. We should move ahead with the world," Dushyant Dave, a New-Delhi based lawyer, told DW.
The Delhi High Court's 2009 ruling had given much confidence to India's gay community, which has held a number of gay pride events and homosexual film festivals in the past few years.
"But in 2013 the doors were shut upon us again," said Tony Christopher of the Queer Professional Network.
Jerry Johnson, a gay rights activist in Mumbai, says the criminalization of gay sex has increased since 2013.
"We have been marginalized even more. Homosexual people can't even interact freely," Johnson told DW.
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.
Countries that have legalized same-sex marriage
Ecuador became the latest country to allow same-sex marriage when its Constitutional Court ruled for two gay couples in June 2019. DW takes a look at some of the other countries that have taken the step.
Image: picture-alliance/ZUMA Wire/O. Messinger
2001, The Netherlands
The Netherlands was the first country in the world to permit same-sex marriages after the Dutch parliament voted for legalization in 2000. The mayor of Amsterdam, Job Cohen, wedded the first four same-sex couples at midnight on April 1, 2001 when the legislation came into effect. The new law also allowed same-sex couples to adopt children.
Image: picture-alliance/dpa/ANP/M. Antonisse
2003, Belgium
The Netherlands' neighbor, Belgium, followed the Dutch lead and legalized same-sex marriage two years later. The law gave same-sex partners many of the rights of their heterosexual counterparts. But unlike the Dutch, the Belgians did not initially allow same-sex couples to adopt children. The Belgian parliament passed a bill granting them that right three years later.
Image: picture-alliance/dpa/EPA/J. Warnand
2010, Argentina
Argentina became the first Latin American country to legalize same-sex marriages when its Senate voted 33 to 27 in favor of it in July 2010. Argentina thereby became the tenth country in the world to permit gay and lesbian marriages. The South American country was not the only one to do so in 2010. Earlier in the year, Portugal and Iceland also passed same-sex marriage legislation.
Image: picture-alliance/dpa/EPA/L. La Valle
2012, Denmark
Denmark's parliament overwhelmingly voted in favor of legalization in June 2012. The small Scandinavian country had made headlines before when it was the first country in the world to recognize civil partnerships for gay and lesbian couples in 1989. Same-sex couples had also enjoyed the right to adopt children since 2009.
Image: picture-alliance/CITYPRESS 24/H. Lundquist
2013, New Zealand
New Zealand became the 15th country worldwide and the first Asia-Pacific country to allow gay and lesbian marriages in 2013. The first couples were married on August 19. Lynley Bendall (left) and Ally Wanik (right) were among them when they exchanged vows on board an Air New Zealand flight from Queenstown to Auckland. France legalized same-sex marriage the same year.
Image: picture-alliance/dpa/EPA/Air New Zealand
2015, Ireland
Ireland made headlines in May 2015 when it became the first country in the world to legalize same-sex marriage through a referendum. Thousands of people celebrated in the streets of Dublin as the results came in showing almost two-thirds of voters opting for the measure.
Image: picture-alliance/dpa/EPA/A. Crawley
2015, USA
The White House was alight in the colors of the rainbow flag on June 26, 2015. Earlier, the US Supreme Court ruled 5 to 4 that the constitution guaranteed marriage equality, a verdict that paved the way for same-sex couples to be married across the country. The decision came 12 years after the Supreme Court ruled that laws criminalizing gay sex were unconstitutional.
Germany became the fifteenth European country to legalize gay and lesbian marriages in June 30, 2017. The bill passed by 393 to 226 in the Bundestag, with four abstentions. German Chancellor Angela Merkel voted against the bill, but paved the way for its passage when she said her party would be allowed to vote freely on the measure only days before the vote took place.
Image: picture-alliance/ZUMA Wire/O. Messinger
2017 - 2018, Australia
Following a postal survey which showed the majority of Australians were in favor of same-sex marriage, the country's parliament passed a law to legalize it in December 2017. As couples in Australia have to give authorities one month's notice of their nuptials, many of the first weddings took place just after midnight on January 9, 2018 - including that of Craig Burns and Luke Sullivan, pictured.
Image: Getty Images/AFP/P. Hamilton
2019, Taiwan
In May 2019, the island state became the first country in Asia to legalize same-sex marriage. The government survived an attempt by conservative opposition to water down the bill. Gay couples are able to offically register their marriage from May 24 onwards. President Tsai Ing-wen called it "a big step towards true equality."
Image: dapd
2019, Ecuador
The Andean state's top court ruled 5-4 to allow two gay couples to marry in June. The decision followed a ruling from the Inter-American Court on Human Rights affirming that countries should allow same-sex couples the right to marry.
