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Gay sex in India is criminalised under Section 377.
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Will it be so easy for the larger bench to reject all the arguments on the basis of which the SC had reversed the 2009 Delhi HC judgment? Let us not forget that, on December 11, 2013, the bench of Justices G S Singhvi and S J Mukhopadhaya had said that Section 377 "by itself did not suffer from constitutional infirmity", but clarified that "notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amending the same as per the suggestion made by the attorney general".Īn impression is being created that earlier the judiciary was conservative in viewing the matter, and now that a senior member of ruling government, namely Arun Jaitley, along with the RSS functionary, have called for a modernisation of the general view on homosexuality, the courts shall oblige. However, after much campaigning from the civil society as well as the LGBT community in India, on January 28, 2016, the Supreme Court once again decided to appoint a five-judge bench, to consider if the curative petition on its earlier order can be heard. This article aims to provide some basic clarifications which will help us make a timely choice today.Īs it is well known, while the Delhi High Court on Jstruck down Section 377 of Indian Penal Code, which criminalises homosexual activity, the Supreme Court reversed it on December 11, 2013, and also rejected its review petition on January 28, 2014. Both, the contemporary followers of the Western modernism, and the upholders of traditional Hindu values, have simply neglected the vast amount of legal material available from the ancient Indian past. Hosabale's volte-face continues the longstanding flip-flop on the issue of homosexuality - its goodness and badness - because the most important factor, the traditional Hindu view on homosexuality, has not been given its due weightage. But after what seemed drops of nectar to the Kinnars of India, the RSS functionary clarified that he would let them go from the clutches of law as they are diseased, mentally ill, and not natural healthy people with just a different sexual orientation.
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At a time when the Indian sociopolitical climate is charged with emotional demonstrations totally bereft of reason, a glimmer of hope was seen by the gays of India last week when a senior RSS leader, Dattatreya Hosabale, made a statement (at India Today Conclave 2016) on March 17 that homosexuals should not be regarded as criminals in the eyes of Indian law.