(Blogmensgo, gay blog of February 8, 2016) On February 2, 2015, the Supreme Court of India admitted a notice of appeal concerning the legalization of homosexuality introduced by a collective of LGBT organizations. This was not the first time that the highest jurisdiction of India has looked at section 377 of the penal code on homosexuality.
This video shows the controversial political positions on this subject.
So, the Supreme Court will consider the motion by the Naz Foundation and other LGBT organizations. Following a petition by these interest groups, the high court of Delhi had ruled that section 377 of the penal code was partly unconstitutional back in September 2008. This section goes back to the year 1860 and stipulates a prison sentence of up to 10 years for sexual relationships considered “against nature.”
However, that ruling was only applicable in the federal district of Delhi, and on December 11, 2013, the Supreme Court repealed the ruling of the inferior jurisdiction and qualified section 377 as constitutional.
Contrary to certain media reports, homosexuality has therefore never been legal in India – except for a very small part of it, the federal district of Delhi.
The Supreme Court ordered that homosexuality should be legalized by the legislator but not by the courts.
After a very homophobic government, Prime Minister Narandra Modi (with his rather liberal party BJP) came to power and called upon the Supreme Court once again to legalize homosexuality. In addition, delegate Shashi Tharoor started a legislative initiative with the same goal.
There are many voices even in the opposition asking to repeal section 377. In fact, this law is hardly enforced anymore – but it makes it easy for the police to put pressure on LGBT people, particularly on sex workers. In addition, three out of four Indians are against such liberalizations of their very orthodox society rules.
All Indian LGBT organizations welcomed the announcement of February 2, 2016 as a victory – or as the beginning of a victory. However, there is no guarantee how the Supreme Court will rule, particularly if it decides to put the legislator’s role in front of its own responsibilities once again.