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India's top court refuses plea to review gay sex ban, activists vow to continue fight against colonial-era law
ABC Radio Australia - January 29, 2014
In December last year the Supreme Court recriminalised gay sex and again made it an offence punishable by life imprisonment. The ruling reversed a lower court verdict from 2009 that 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 judgement upholding Section 377 of India's legal code. But a Supreme Court bench has dismissed the petitions.
"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.
The review petition had urged the 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 law was "violative of the principle of equality".
Anjali Gopalan, founder of Naz Foundation, which launched the initial case to decriminalise homosexual sex, says activist groups will 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.
In its December ruling the Supreme Court said 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.
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. (ABC/AFP)
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