India decriminalises gay sex in a historic ruling

People are celebrating in the streets

In a landmark ruling and groundbreaking triumph for LGBT rights, India’s Supreme Court has done away with its law criminalising gay sex and homosexual acts.

The Supreme Court in Delhi deliberated over the colonial-era law, known as Section 377, for weeks. The verdict was announced on Thursday morning (September 5) – Indian chief justice Dipak Mishra said, according to the Guardian, that “any discrimination on basis of sexual orientation amounts to violation of fundamental rights”.

Dozens gathered outside the court, cheering as the announcement was made – it’s a serious victory for LGBT activists that have campaigned and demonstrated to lift their struggle for years.

“History owes an apology to members of the community for the delay in ensuring their rights,” judge Indu Malhotra wrote. 

Section 377 is one of the world’s oldest laws, imposing during British colonial rule. It made gay sex illegal, as “against the order of nature” and had a maximum sentence of life imprisonment. The first case was filed against it in 1994. Back in 2009, the Delhi High Court had ruled that the gay sex ban violated fundamental rights – while it only applied in Delhi, it was swiftly overruled by the Supreme Court in 2013 following a petition by religious groups. They ruled that as the 1861 law had been used fewer than 200 times, it was such a small proportion of the population that it couldn’t actively violate Indians’ constitutional rights. 

As CNN reports, the law has been used against LGBT Indians as a form of blackmail, and it encouraged stigma against HIV/Aids.

In August 2017, a Supreme Court ruling for the fundamental right to privacy put things in motion to quash Section 377 once again. The petition was brought originally by a group of five LGBT Indians: Navtej Singh Johar, partner Sunil Mehra, Ritu Dalmia, Ayesha Kapur, and Aman Nath. More than 25 others joined as the court prepared for the sitting. 

Much of the opposition to changing the law has come from staunchly religious lawmakers and politicians. Subramanian Swamy, a member of the Bharatiya Janata Party, called the overturning of the law a “danger to national security”, and “against Hindutva”. However Hinduism reflects elements of same-sex love in its teachings. 

LGBT activist Harish Iyer told the BBC: “I'm absolutely elated. It’s like a second freedom struggle where finally we have thrown a British law out of this country... I think the next step would be to get anti-discrimination laws in place, or anti-bullying laws.”

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