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Explain stand on gay sex: India's top court issues notice to government

by Suchitra Mohanty and Roli Srivastava | Thomson Reuters Foundation
Tuesday, 1 May 2018 11:13 GMT

A participant walks under a rainbow flag during a gay pride parade promoting lesbian, gay, bisexual and transgender rights, in Chandigarh, India March 18, 2018. REUTERS/Ajay Verma

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Although the law banning homosexuality is rarely enforced in India, it is used to intimidate, harass, blackmail and extort money from gay people

By Suchitra Mohanty and Roli Srivastava

NEW DELHI/MUMBAI, May 1(Thomson Reuters Foundation) - India's government must explain its stand on consensual sexual relations between same sex adults, the Supreme Court said on Tuesday, setting a July deadline for a response.

The court had heard petitions demanding the abolition of Section 377 - a colonial-era law that prohibits "carnal intercourse against the order of nature with any man, woman or animal" - widely interpreted to refer to homosexual sex.

The court's notice to the government "is a watershed in the whole fight against Section 377," said petitioner Ashok Row Kavi, chairperson of Humsafar Trust, a charity that works with India's LGBT community.

"The government will have to decide whether this colonial law should still stand relevant in a country that has its own constitution that protects fundamental rights of its citizens," he told the Thomson Reuters Foundation.

The Supreme Court had in a surprise ruling in 2013 reinstated a ban on gay sex after a four-year period of decriminalisation, but it announced in January this year that it would reconsider the 2013 decision.

Those who submitted petitions to the court in the past couple months said they were living in constant fear of police due to their sexual orientations, and argued that the ban was unconstitutional.

Among the petitions the judges considered on Tuesday was that of Arif Jafar, who was arrested under Section 377 in 2001 and was released after 49 days. His case is still pending.

Although the law banning homosexuality is rarely enforced in India, it is used to intimidate, harass, blackmail and extort money from gay people, activists say.

All forms of non-penile vaginal sex are also criminalised under Section 377. Gay sex is punishable by up to 10 years jail under the law.

There is no official data on the LGBT population in India, but the government estimates there are 2.5 million gay people, reflecting those who have declared their sexuality to the health ministry.

Campaigners say real numbers are far higher, as many conceal their identities fearing discrimination in a country where most marriages still take place within the boundaries of caste and religion. (Reporting by Roli Srivastava @Rolionaroll; Editing by Jared Ferrie. Please credit Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women's rights, trafficking, property rights, climate change and resilience. Visit news.trust.org)

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