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India’s Supreme Court refuses plea to review colonial-era ban on gay sex

By Agence France-Presse
Tuesday, January 28, 2014 11:27 EDT
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Protests as India re-criminalizes gay sex (AFP)
 
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India’s top court Tuesday rejected a plea filed by the government and activist groups to review its shock ruling which reinstated a colonial-era ban on gay sex.

A Supreme Court bench dismissed petitions filed by the government and rights groups against a verdict last month that re-criminalised gay sex and made it an offence punishable by up to life imprisonment.

“We see no reason to interfere with the order impugned. The review petitions are dismissed,” Supreme Court Justices H.L. Dattu and S.J. Mukhopadhaya said in their decision.

In its December 11 ruling, the top court reversed a lower court verdict from 2009 which had set aside a 19th-century law drafted by India’s British colonial rulers outlawing “carnal intercourse against the order of nature”.

The Congress-led government filed the so-called review petition amid an outcry among activists against the December judgement upholding Section 377 of India?s legal code.

It asked the Supreme Court to reconsider its decision to “avoid a grave miscarriage of justice to thousands of LGBT (lesbian, gay, bisexual and transgender) individuals”.

The government added in its petition the ruling upholding the more than 150-year-old law was “violative of the principle of equality”.

Anjali Gopalan, founder of Naz Foundation, which launched the initial case to decriminalise homosexual sex, said activist groups would now file a “curative petition” to the Supreme Court.

A “curative petition”, the last stage of the appeal process, is intended to remedy “gross miscarriages” of justice and is heard by a panel of five judges, including three of the most senior.

“The plan now is to file a curative petition. The curative petition would be heard by a larger bench of the Supreme Court — let’s see what might happen then,” Gopalan told AFP.

The Supreme Court said in its December 11 ruling responsibility for changing the law rested with lawmakers and not the courts in the sexually conservative nation.

If the curative petition fails, the issue will land in parliament’s lap, meaning the law could take years to change.

Observers say they see virtually no chance India’s parliament could take such a controversial decision as reversing the law before national elections due by May.

“The route through parliament would be a very long drawn-out process and at this point we have the elections coming,” said Gopalan.

Gay sex was effectively legalised in 2009 when the Delhi High Court ruled the ban infringed fundamental constitutional rights.

But the December Supreme Court ruling said the High Court overstepped its authority.

India remains a deeply traditional nation in which homosexuality is still largely seen as taboo, and gay men and women are often marry and live double lives to abide by family values.

The 2009 Delhi High Court ruling had been strongly criticised by religious groups who had appealed the judgement to the Supreme Court.

While the law has been rarely used to prosecute anyone engaged in consensual sex, police have used it to harass the gays, activists say.

Agence France-Presse
Agence France-Presse
AFP journalists cover wars, conflicts, politics, science, health, the environment, technology, fashion, entertainment, the offbeat, sports and a whole lot more in text, photographs, video, graphics and online.
 
 
 
 
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