Equal rights activists are pinning their hopes on Tuesday’s open court hearing by the Supreme Court of a petition seeking reconsideration of its 2013 verdict criminalising gay sex, considered “against the order of nature” by the IPC Section 377 dating back to 1860.
Activists have campaigned for Section 377 to be repealed on grounds that it violates the human rights of LGBTs.
A three-bench bench headed by chief justice TS Thakur will hear the curative petition, which is the last judicial resort to redress grievances. Open court hearings such as this are rare.
“The very fact that the Supreme Court is willing to hear a new petition in open is a good thing and we are hopeful. If the apex court upholds the law, Parliament will be our last recourse,” said a petitioner who did not want to be named.
Equal rights activists in India have been fighting a long legal battle asking for Section 377 to be repealed on grounds that it violates human rights of lesbians, gays, bisexuals and transgenders (LGBTs).
They argue that section 377 violates articles 14, 15, 19 and 21 of the Constitution of India, which guarantee equality, freedom of expression and personal liberty to all citizens.
The section denies basic human rights to sexual minorities, who can be arrested and imprisoned for life for their sexual orientation.
In a celebrated judgment in July 2009, the Delhi highcourt decriminalised consensual homosexual sex between adults but the apex court overturned the judgment in 2013 on grounds that amending or repealing Section 377 should be left to Parliament, not the judiciary.
The curative petition challenges the SC verdict upholding the validity of section 377 and its January 2014 order that dismissed a bunch of review petitions.
Though Lok Sabha member Shashi Tharoor’s private member’s bill proposing to replace Section 377 was defeated out right in Parliament in December last year, activists have support from some senior leaders in the government, including finance minister ArunJaitley, who has spoken publicly in favour of decriminalising gay sex.
Cultural and religious beliefs are the biggest hurdle to gay rights. In 1992, the World Health Organisation (WHO) removed homosexuality from the category of mental illness, but many governments and religious groups do not accept homosexuality as normal.
Some religious leaders, such as yoga guru Ramdev, are convinced that homosexuality is a perversion, a disease that can be cured.
Experts, however, say homosexuality is a sexual orientation one is born with and not a behavioural choice. “It is not a choice you make willing ly, why would anyone choose an orientation that is not accepted by society and puts them at the threat of discriminated against and being imprisoned,” said Dr Chinkholal Thangsing, president, Touch of Hope Foundation, which works for equal rights.