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Indian Supreme Court Agrees To Reconsider The Country’s Gay Sex Ban
April 3, 2014
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Indian LGBT activists demonstrate against the Supreme Court's reinstatement of Section 377 in Bangalore (Photo: Manjunath Kiran/AFP/Getty Images)

India's top court agreed today to reconsider its December, 2013 ruling upholding the country's 19th-century ban on "carnal intercourse against the order of nature with man, woman or animal” — a prohibition that has widely been interpreted to include homosexual sex.

The Times of India reports that Chief Justice P. Sathasivam said the court would consider a "curative petition" against the ruling filed by the New Delhi-based HIV/AIDS NGO the Naz Foundation and other gay-rights activists. A curative petition is the last judicial resort in the Indian legal system, and usually requires the petitioner to make the case that the contested ruling violates the principles of natural justice.

The petition alleges that the high court erred in its ruling because the law in question — India's 1860 penal code — had changed between the time the court agreed to hear the case and finally released a ruling 21 months later. It also makes the case that the law is inherently discrimatory.

“This Court has incorrectly held that a minuscule fraction of the population cannot claim fundamental rights," the petition argues. "This finding has caused immense public injury and if not rectified, would have dangerous implications on the enforcement of fundamental rights of citizens."

In 2009, the relevant section of the Penal Code was overturned by the Delhi High Court after it was challenged for being unconstitutional. But the Supreme Court's 2013 ruling nullified the earlier decision on the grounds that only parliament has the power to change the law.

The development comes as Indians prepare to go to the polls to elect representatives to the Lok Sabha, India's lower house. Polls show that the Hindu-nationalist opposition Bharatiya Janata Party, which strongly supported last year's Supreme Court decision, is likely to make large gains and take control of the legislature.

Via Times of India

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