India's Top Court Starts Hearing Case on Legalization of Gay Sex
Panel of five judges headed by Chief Justice of India Dipak Misra heard legal arguments against Section 377.
(Bloomberg) -- India’s top court has begun hearing a case that could strike down a 158-year-old colonial-era law that criminalizes gay sex in the world’s second-most populous country.
On Tuesday, a panel of five judges headed by Chief Justice of India Dipak Misra heard legal arguments against Section 377 of the Indian penal code, which bans gay sex. The case could have a wide-ranging impact on how lesbian, gay, bisexual, and transgender citizens are treated across the subcontinent.
The “ramifications of this case are not just on sexuality,” former Indian attorney general Mukul Rohatgi told the top court’s constitutional bench. "It will have an impact on how society looks at these people -- about perception, about livelihood and jobs."
Rohatgi is representing prominent Delhi businessman, Keshav Suri, the executive director of The Lalit Suri Hospitality Group, one of the petitioners challenging Section 377. Other petitioners include the Naz Foundation -- a non-government organization working in HIV and sexual health.
The hearing comes shortly after a Hong Kong court ruling decided in favor of granting visas to the spouses of gay expatriate workers in Asia’s main financial hub, a move that puts pressure on other Asian capitals to make themselves more attractive in the race for global talent. Hong Kong’s move was cheered by local lawmakers and prominent law firms and banks including Goldman Sachs Group Inc., Credit Suisse Group AG and Nomura Holdings Inc.
‘Against Nature’
Section 377 of India’s penal code was first enacted in 1860 when India was a British colony. It lumps homosexuality in with bestiality as an "unnatural offense" that goes "against the order of nature," and mandates a prison sentence of up to 10 years.
LGBT groups have long argued this law violates the Indian constitution, which guarantees the right to equality and non-discrimination.
In Asia, "India is always seen as a leader, and it’s backtracking" on gay rights, said Anand Grover, a prominent Indian lawyer who has fought for LGBT rights. If the court strikes down the law, he said, "we could then say India’s back on track."
A lower court in India previously decriminalized homosexuality by declaring that Section 377 was unconstitutional in 2009. That ruling was overturned by a two-judge panel at the Supreme Court in 2014, which said a change in the law could only come from India’s parliament.
Last year, LGBT activists were cheered when a nine-judge bench looking into the right to privacy separately said that "sexual orientation is an essential attribute of privacy" and that the protection of a person’s sexual orientation is at the core of the rights to life, liberty and equality.
‘Can Be Cured’
Prime Minister Narendra Modi’s government has not yet made its stand clear. On Monday, Additional Solicitor General Tushar Mehta urged the top court to defer the hearing.
"We will submit our stand during the course of the hearing," Mehta said on Tuesday as the hearing commenced.
An outspoken upper house lawmaker from Modi’s ruling Hindu nationalist Bharatiya Janata Party described homosexuality as something that cannot be celebrated because it is contrary to Hindutva, a Hindi term which encompasses winning converts and scrapping legal privileges for religious minorities.
"It is not a normal thing," said Subramanian Swamy on Tuesday, according to Indian news agency ANI. "We cannot celebrate it. It’s against Hindutva. We should invest in medical research to see if it can be cured.”
To contact the reporters on this story: Upmanyu Trivedi in New Delhi at utrivedi2@bloomberg.net;Iain Marlow in New Delhi at imarlow1@bloomberg.net
To contact the editors responsible for this story: Unni Krishnan at ukrishnan2@bloomberg.net, Ruth Pollard
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Watch this conversation with senior lawyer Anand Grover and gay rights activist Harish Iyer.