New Delhi: India’s government filed a petition on Friday asking the Supreme Court to review a shock ruling which reinstated a colonial-era ban on gay sex, drawing applause from rights activists.
Although the government had been considering gay rights legislation, the petition would be a much quicker way of ensuring that last week’s verdict by a panel of two judges is reversed.
The government asked in its petition for the top court to reconsider its judgement, calling the ruling “violative of the principle of equality.”
“Let’s hope the right to personal choices is preserved,” Law Minister Kapil Sibal said on Twitter. He has called the ban on homosexual acts that carries a maximum life-term penalty “an anachronistic law”.
The Congress-led government told the court it wanted an “open” court hearing on its arguments for a review of the judgement. The fate of review petitions is normally decided behind closed doors.
“This is a very good thing, it’s great to have the government on our side - it’s fabulous,” Anjali Gopalan, founder of the Naz Foundation, an HIV/Aids charity, which launched the initial court case in 2009 to decriminalise homosexual sex.
In its ruling on December 11, the Supreme Court ruled that responsibility for changing the law rested with lawmakers, not the courts, in the sexually conservative country.
But lawyers say there is virtually no possibility that the parliament can reverse the law, with the government weakened by a string of corruption scandals and the conservative Hindu nationalist Bharatiya Janata Party looking poised to win the May general elections.
Gay sex had been effectively legalised in 2009 when the Delhi High Court ruled that a section of the penal code prohibiting “carnal intercourse against the order of nature” was an infringement of fundamental rights.
But the two judges ruled last week that the High Court had overstepped its authority and that a law passed in the 1860s during British colonial rule was still valid.
The ruling sparked protests in many Indian cities with activists carrying rainbow-coloured flags and placards accusing the Supreme Court of dragging the country back to the nineteenth century.
“The position of the central government on this issue has been that the Delhi High Court verdict... is correct,” the government said in its petition.
The Delhi High Court had said Section 377 of the Indian Penal Code, which bans “unnatural offences”, did not apply to sexual relations between consenting adults as it would violate constitutional rights of dignity, equality and freedom from discrimination.
The Supreme Court ruling deeply disappointed India’s gay community, which had since the 2009 judgement found a chance to live more openly. The 2009 High Court ruling had been strongly opposed by religious groups, particularly leaders of India’s Muslim and Christian communities, who appealed the judgement to the Supreme Court.
The move to seek a review “is a wise and sensitive move. The government has recognised it is ultimately an issue of human rights and dignity for all,” Parmesh Shahani, a gay rights activist who heads the Godrej India Culture Lab think-tank, said.
The Supreme Court will consider the merits of the government’s request and decide whether to re-examine the judgement.
Not all gay activists were happy with the government’s action, noting that review petitions are normally filed for smaller mistakes in rulings, not over fundamental issues.
“This is more of a stalling tactic, they’re trying to be seen standing up for equal rights but they’re raising hopes without much chance of success,” gay rights activist Nitin Karani said.
At the same time, Karani, trustee of gay rights advocacy group Samapathik Trust, conceded that the embattled government “has very little leverage” in parliament to get the law changed.
Surveys show Indians remain widely disapproving of homosexuality — obliging many gay men and women to live double lives. While gay rights groups say the law is rarely used to prosecute homosexual acts, they add that police do use it to harass people.
