India's top court to rule on legality of gay sex

New Delhi: India’s top court is due to rule Wednesday on decriminalising gay sex between consenting adults, in a decision which could change the fate of the country’s largely-closeted homosexual community.

The landmark verdict is slated to be handed down four years after the Delhi High Court ruled that an existing statute banning homosexual acts was discriminatory and a “violation of fundamental rights” according to the constitution.

The statute in question is a British colonial-era law outlawing “carnal intercourse against the order of nature”. Conviction carried a fine and a maximum 10-year jail sentence.

Although prosecutions were rare, gay activists said police used the law to harass and intimidate members of their community.

The High Court ruling was strongly opposed by religious groups, particularly leaders of India’s Muslim and Christian communities, who argued that all homosexual acts were “unnatural”.

They appealed the ruling to the Supreme Court, which concluded hearings in March last year on the subject.

Legal experts said there was a remote possibility that Judge G.S. Singhvi, who is heading the two-man panel and is slated to retire Thursday, might choose not to issue a ruling.

In that event, a decision might be delayed for two to three years as the case would have to be examined by a new set of judges.

Gay rights activists said they were hopeful that the top court would uphold the 2009 judgement, which saw ostracised gay and transgender communities erupt in celebration.

“It is going to be extremely difficult to overturn the previous judgement,”said Ashok Row Kavi, a Mumbai-based gay rights activist.

“If the court overturns the matter, then that would be going against the current of international law,” Kavi said.

“I don’t think judges are going to take that chance.” Gay sex has long been a taboo subject in conservative India, where homophobic tendencies abound with slapstick portrayals of same-sex couples and with many still regarding homosexuality as an illness.

In recent years, however, the country’s gay community has raised its profile, organising gay pride marches in major cities such as New Delhi and Mumbai, which activists say have helped create awareness and encouraged many to come out of the closet.

“Gay pride marches are very important, it gives you a sense of belonging and a big boost of confidence. You don’t shy away or feel the need to live a double life,” said Mumbai gay rights activist Nitin Karani.

“If the court fails to give a verdict or goes back to the British era, then that will be another struggle, another shame.”

Jeffrey O’Malley, director of the United Nations Development Programme on HIV/AIDS, had argued in 2008 that decriminalising homosexuality would help India to combat the spread of HIV/AIDS.

India has an estimated 2.5 million people living with the virus.