India Supreme Court to reconsider law criminalizing homosexuality

India Supreme Court to reconsider law criminalizing homosexuality

The Supreme Court of India [official website] agreed [order, PDF] Monday to re-examine Section 377 [JURIST op-ed], which criminalizes sex between people of the same sex.

In its order, the court noted that, “social morality also changes from age to age,” and that it is necessary for the law to be separate from those changes to uphold the rights guaranteed by India’s constitution.

The petition called for a re-examination of the court’s 2013 decision [JURIST report] that upheld the law prohibiting sex between consenting adults of the same sex. The court at the time decided that the question of whether Section 377 should stay in effect had to be left up to the legislature. The petitioners argued, “the perception of the majority [of the 2013 ruling] which is based on social morality and stands on a platform distinct from constitutional morality.” The petitioners looked to changing concepts on morality as a basis for why Section 377 is unconstitutional and should not exist as it limits the freedom of individual autonomy and violates article 21 of India’s constitution, which guarantees a right to privacy.

The order further pointed out “a section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society.”

The three Justices hearing the petition, Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, referred the matter to a larger bench.