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India’s highest court to revisit 16th-century ban on gay sex

In India, homosexual acts are punishable by up to 10 years in prison. But on Monday, the country’s highest court announced it will re-examine the ban.

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Enacted by the British 153 years ago in 1860, Section 377 of the Indian Penal Code outlaws “carnal intercourse against the order of nature with any man, woman or animal” and also bans oral sex between man and woman, holding that only penile-vaginal sex was not "against the order of nature.”

About 200 people have been prosecuted under Section 377, and activists say the law is often used to intimidate or blackmail gay people, the Guardian reported.

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Following a petition filed by five Indians who said they are living in constant fear of being prosecuted, the Supreme Court said a larger group of judges would reconsider the constitutional validity of the law.

“A section of people or individuals who exercise their choice should never remain in a state of fear,” the justices said. "What is natural to one may not be natural to others.”

In 2009, a New Delhi High Court ruled Section 377 unconstitutional thanks to activist Anjali Gopalan, executive director of AIDS awareness group, Naz Foundation.

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But in 2013, India’s Supreme Court overturned the ruling and re-criminalized same-sex relationships.

This time, some justices are arguing that the law contradicts Article 21 of the Indian constitution, which says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

After a landmark ruling in September, many justices in the country recognized that Article 21 guaranteed a right to privacy, including sexual orientation.

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“There has been so much criticism of the judgment, and mobilization on the ground and acceptance levels have gone up by a lot, [despite] the conservative forces in the ruling party,” LGBTQ advocate Aditya Bondyopadhyay told the Guardian.

While India is still largely conservative, LGBTQ Indians have gained visibility and acceptance over the past decade. In 1999, the country had its first pride parade in Kolkata. In 2017, the New York Times reported, “fewer participants wore face masks to hide their identities at the parade.”

Read more from The Guardian.

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