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India’s Supreme Court has agreed to revisit a 2013 judgement that upheld an historic law criminalising sex between two consenting men. The 2013 judgement had been criticised by LGBT rights activists for back-pedalling on a 2009 court case, which had itself quashed the anti-gay law on the grounds that it was discriminatory.
A curative petition to the 2013 judgement was filed by a consortium of lesbian, gay, bisexual and trans rights organisations in March 2014 in order to appeal the decision. This hearing will be the final stage of appeal available against the original judgement.
A panel of five judges, headed by the chief justice of India, will hear the curative petition, which claims the earlier decision amounts to a ‘miscarriage of justice’. The BBC reports that a three-judge bench, which referred the issue to the current panel, considered the issue a ‘matter of constitutional importance’.
The 2013 judgement reaffirms Section 377 of Indian Penal Code (IPC), which criminalises sex between two men as ‘against the order of nature’, with a maximum penalty of 10 years in jail. Section 377 is a 153-year-old law brought in by the then British rulers, and similar laws remain in effect in Commonwealth nations across the globe as an artefact of British imperialism. LGBT rights campaigners argue that these outdated laws are responsible for much of the persecution of LGBT people in Commonwealth nations.
An earlier case in 2009, heard by the Delhi High Court, had struck down Section 377 as discriminatory. This was later overturned by the country’s supreme court in 2013 – the case now up for appeal.
The LGBT community claims the existing law is misused by the state (usually the police) to harass homosexuals across the country.
Anand Grover, a lawyer for an LGBT group, said of the Supreme Court’s decision to hear the appeal, ‘It is definitely a step forward.’
After the Supreme Court made its decision to hear the appeal yesterday, campaigners reportedly cheered inside and outside the court.