India's Supreme Court will review law criminalizing gay sex

By Aditya Kalra and Andrew MacAskill
Gay rights activists cover themselves with a rainbow flag as they celebrate the Supreme court's decision on gay sex in Mumbai, India, February 2, 2016. REUTERS/Danish Siddiqui

By Aditya Kalra and Andrew MacAskill

NEW DELHI (Reuters) - India's top court on Tuesday said it will review a decision over whether to uphold a colonial-era law that criminalizes gay sex in a victory for homosexual rights campaigners at a time when the nation is navigating a path between tradition and modernity.

The Supreme Court asked a five-judge bench to examine whether the 1860 law, which imposes a 10-year sentence for gay sex is constitutional, a lawyer for a gay rights group said.

"It is definitely a move forward," lawyer Anand Grover said as activists gathered outside the court cheered.

This was the last legal avenue for campaigners seeking to use the courts to strike down the law. Otherwise, any future decisions to lift the ban will rest with the country's socially conservative politicians who oppose any changes.

The Supreme Court made a surprise ruling in 2013 that reinstated a ban on gay sex. That decision ended a four-year period of decriminalization that helped bring homosexuality into the open in the conservative country.National surveys show about three-quarters of Indians disapprove of homosexuality and are deeply traditional about other issues of sexuality such as sex outside of marriage.

India is one of 75 countries around the world that outlaws homosexuality, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association.

Although the law banning homosexuality is rarely enforced in India, it is used to intimidate, harass, blackmail and extort money from lesbian, gay, bisexual people, activists say.

There are no official figures on the number of cases. Most go unreported, say activists, as victims are too scared to report crimes to the police, fearing they will be punished too.

Gay rights activist Yogesh S. welcomed the Supreme Court review and said there was hope the court would eventually throw out the 156-year-old law.

While the previous Congress-led government had pledged to repeal the law if it came to power again, it was crushed by Prime Minister Narendra Modi's Bharatiya Janata Party in general elections in May 2014.

In December, members of Modi's party, which has an overwhelming majority in the lower house of parliament, scuppered a private members bill to scrap the law.

"This is not just about sex, or even about gays, it is about principals of freedom enshrined in our constitution," said Shashi Tharoor, the opposition Congress lawmaker, who introduced the bill.

"My argument has always been that what people do behind their own closed doors should be their business and we should keep the government out of the bedroom."

(Editing by Sanjeev Miglani, Robert Birsel)