By Nivvedan Senthamil Selvan, Mumbai
Around 20 petitions have been filed in the Supreme Court of India against the 2009 Delhi High Court ruling that decriminalized homosexuality in the country.
The petitioners are mostly religious organizations and some individuals who claim to be acting in the interest of protecting public morality and social order. The Supreme Court has begun the final round of hearing the petitions last month and the case has become one of most followed in the country.
Until June 2009, homosexuality and other non-heteronormative sexual behaviour were a criminal offense in India. Homosexuality was believed to be covered under a colonial law (Section 377 of the IPC) that criminalises “carnal intercourse against the order of nature.” Enacted in 1861 by Lord Macaulay in British India, the law continued its existence in the Indian Penal Code (IPC) for more than 60 years even after its independence. Though prosecution under this law was extremely rare and conviction even rarer, there have been repeated claims of the law being used by law enforcement agencies to harass LGBTQ individuals.
Hearing a Public Interest Litigation (PIL) filed by an NGO questioning the constitutional validity of the law, the Delhi High Court in 2009 decided Section 377 to be inapplicable to “consensual sexual acts between adults in private,” stating that the colonial law violated the citizens’ fundamental rights to life, dignity and equality. This judgement is a major landmark in India’s gay rights movement which is still in its infancy compared to its western counterparts.
However, the troubles of the gay community are far from over as petitions against the judgement have been filed in the Supreme Court and the lives of millions of Indian residents are to be decided by the outcome of this case. The fundamentalists claim that the Delhi High Court has failed to consider the traditional Indian values and culture and that the judgement will cause rampant pedophilia and child sexual abuse across the county and also expose the society to higher risks of HIV transmission. Gay activists across the country, however, are confident the Supreme Court will uphold the Delhi High Court’s judgement and protect the rights of the gay community.
Judgement is likely very soon, once the final round of hearings are over.