The Supreme Court of India gave new hope to LGBT rights supporters on Tuesday, ordering new proceedings that could overturn a 2013 judgement that upheld the country’s colonial-era law criminalizing homosexuality.
The decision by the Supreme Court — it agreed to hear the petition and referred the case to a five-judge constitutional bench — came in a rare hearing on what is known as a “curative petition,” which allows a panel of judges to reconsider Supreme Court judgements that have already been issued. (Supreme Court cases in India are routinely decided by small panels of the court’s judges, not the court as a whole.) The odds may still be against the lawyers arguing the sodomy law should be struck down in this case, which is known as Suresh Kumar Koushal v. Naz Foundation. Curative petitions have only led a ruling to be overturned three times since the process was created in 2002.
The 2013 ruling in the Koushal case was a crushing end to a 12-year legal battle that LGBT advocates appeared poised to win. The case was first brought by the Naz Foundation Trust, an HIV organization that had its employees detained by police for more than six weeks under charges including conspiracy to commit sodomy. The group won a sweeping judgement from the Delhi High Court in 2009 that meant the law could not be enforced, and many Indians came out following the decision no longer fearing legal consequences.
But the Delhi High Court ruling was reversed by a panel of two Supreme Court judges in 2013, who wrote that the provision “does not criminalize a particular people or identity or orientation … [but] merely identifies certain acts which if committed would constitute an offense,” and therefore did not violate fundamental rights protections in India’s constitution.
In the year following the law’s reinstatement, the Indian Home Ministry reported nearly 600 people were arrested under the law. There was also widespread fear that it had reopened the door to harassment and blackmail of LGBT people because seeking help from the police could expose them to further danger.
A ruling that came a few months after Koushal suggested sharp divisions between Supreme Court judges on the question of LGBT rights, and may have been a factor in Tuesday’s decision. In April 2014, a different panel of judges issued a broad ruling establishing protections for transgender people in which they appeared to directly rebuke the Koushal judgment.
“Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law,” they wrote.
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