Gay sex not an aberration, Supreme Court judge says ahead of ruling on homosexuality ban

A five-judge bench made the comments while hearing a challenge to the ban, which the top court reinstated in 2013 after a four-year period of decriminalisation.

Gay sex is considered taboo by many in socially conservative India, and despite opposition to lifting the ban from other petitioners and some lawmakers, activists were hopeful of a positive judgment after Thursday’s hearing.

“(Homosexuality) is not an aberration, but a variation,” said Justice Indu Malhotra. “Because of family pressures and societal pressures, they are forced to marry the opposite sex and it leads to bi-sexuality and other mental trauma.”

The homosexuality law, commonly known as “Section 377”, prohibits “carnal intercourse against the order of nature with any man, woman or animal” - which is widely interpreted to refer to homosexual sex. Gay sex is punishable by up to 10 years in jail.

A lawyer for the government said that it would leave it to “the wisdom” of the court to decide the constitutional validity of Section 377.

Lawyers for petitioners seeking to scrap the 157-year-old law have argued that sexual orientation is an intrinsic part of individual identity.

“This law has created utter chaos,” Ashok Desai, a lawyer for one of the petitioners, told the court.

Desai also argued that homosexuality was not alien to Indian cultural traditions, making a reference to a transgender character in the Mahabharata, an Indian epic.

Subramanian Swamy, a prominent lawmaker from Prime Minister Narendra Modi’s ruling Bharatiya Janata Party, said this week that homosexuality was unnatural and against Hindu nationalism.

The court will resume hearing arguments from groups which support the homosexuality ban on Tuesday.