India’s top court on Monday said it will re-examine its earlier decision not to strike down a colonial-era law that makes homosexual acts punishable by up to 10 years in prison.
Three judges including Chief Justice Dipak Mishra said a larger group of justices would reconsider the law following a petition filed by five people who say they are living in fear of being prosecuted. However, no date was fixed for hearings in the case.
“What is natural to one may not be natural to others,” the judges said.
In 2009, a New Delhi High Court declared unconstitutional Section 377 of the law, which says intercourse between members of the same sex is against the order of nature. But the judgment was overturned four years later by the Supreme Court, which said amending or repealing the law should be left to Parliament, not the judiciary.
Parliament is yet to act in the matter, with the Hindu nationalist party-led government in no hurry to change the law.
Arvind Datar, attorney for the petitioners, said the penal provision was unconstitutional because it provides for the prosecution and sentencing of consenting adults.
The Supreme Court said Monday that while choice can’t be allowed to cross the boundaries of law, laws shouldn’t trample or curtail the inherent right to freedom granted to individuals by the Indian Constitution.
The judges said the 2013 decision needed to be reconsidered because of the constitutional issues. “We think it appropriate to send this issue to a larger bench,” they said.
Over the past decade, homosexuals have gained a degree of acceptance in parts of deeply conservative India, especially in big cities. Some high-profile Bollywood films have dealt with gay issues.
Still, being gay is seen as shameful in most of the country, and many homosexuals remain hidden.
