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India's top court to rule on gay rights

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(Globalpost/GlobalPost)

India's Supreme Court was to decide Wednesday whether to overturn a colonial-era law criminalising homosexuality in a landmark judgement on sexual freedom in the world's biggest democracy.

The verdict was expected to be handed down four years after the Delhi High Court ruled that an existing statute banning homosexual acts was discriminatory and a "violation of fundamental rights" according to the constitution.

The statute in question is a British colonial-era law outlawing "carnal intercourse against the order of nature". Conviction carried a fine and a maximum 10-year jail sentence.

Although prosecutions were rare, gay activists said police used the law to harass and intimidate members of their community.

Gay rights activists said they were hopeful that the top court would uphold the 2009 judgement, which saw ostracised gay and transgender communities erupt in celebration.

"It has been a long fight so far for the entire community. We are keeping our fingers crossed," said Mohnish Malhotra of the Delhi Queer Pride Committee.

"We are hoping the earlier verdict will be upheld. We want to mark this day in a special way," added Malhotra, whose organisation will hold a rally in New Delhi after the verdict is announced.

Ashok Row Kavi, a Mumbai-based gay rights activist, said it would be "extremely difficult" to overturn the 2009 verdict.

"If the court overturns the matter, then that would be going against the current of international law," Kavi told AFP.

"I don't think judges are going to take that chance."

The High Court ruling was strongly opposed by religious groups, particularly leaders of India's Muslim and Christian communities, who argued that all homosexual acts were "unnatural".

They appealed the ruling to the Supreme Court, which concluded hearings in March last year on the subject.

Dominic Emmanuel, spokesman of the Delhi Catholic Archdiocese, said the church was ready to accept any decision from the Supreme Court.

"Though we did not welcome the decision of the High Court, we did not object to it. If there is a decision like that from the Supreme Court, we will not object to it either," he told the NDTV network.

"The church has a very clear stand on people with different sexual orientations. Though they are different from ... normal people, they should be respected, accepted and there should ne no signs of discrimination against them."

Legal experts said there was a possibility that Judge G.S. Singhvi, who is heading the two-man panel and is slated to retire Thursday, might choose not to issue a ruling.

In that event, a decision might be delayed for two to three years as the case would have to be examined by a new set of judges.

Gay sex has long been a taboo subject in conservative India, where homophobic tendencies abound with slapstick portrayals of same-sex couples and with many still regarding homosexuality as an illness.

In recent years, however, the country's gay community has raised its profile, organising gay pride marches in major cities such as New Delhi and Mumbai, which activists say have helped create awareness and encouraged many to come out of the closet.

Jeffrey O'Malley, director of the United Nations Development Programme on HIV/AIDS, had argued in 2008 that decriminalising homosexuality would help India to combat the spread of HIV/AIDS.

India has an estimated 2.5 million people living with the virus.

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http://www.globalpost.com/dispatch/news/afp/131211/indias-top-court-rule-gay-rights