Historic India ruling legalises gay sex

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A joyful reaction to the ruling

In a historic decision, India’s Supreme Court has ruled that gay sex is no longer a criminal offence.

The ruling overturns a 2013 judgement that upheld a colonial-era law, known as section 377, under which gay sex is categorised as an “unnatural offence”.

The court has now ruled discrimination on the basis of sexual orientation is a fundamental violation of rights.

Campaigners outside the court cheered and some broke down in tears as the ruling was handed down.

Although public opinion in India’s biggest cities has been in favour of scrapping the law, there remains strong opposition among religious groups and in conservative rural communities.

But this ruling, from the top court, is the final say in the matter and represents a huge victory for India’s LGBT community.

The ruling
Thursday’s decision was delivered by a five-judge bench headed by India’s outgoing chief justice Dipak Misra and was unanimous.

Reading out the judgement, he said: “Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional.”

Another judge, Indu Malhotra, said she believed “history owes an apology” to LGBT people for ostracising them.

Justice DY Chandrachud said the state had no right to control the private lives of LGBT community members and that the denial of the right to sexual orientation was the same as denying the right to privacy.

The ruling effectively allows gay sex among consenting adults in private.

Section 377
Section 377 is a 157-year-old colonial-era law which criminalises certain sexual acts as“unnatural offences” that are punishable by a 10-year jail term.

The law punishes, in its own words, “carnal intercourse against the order of nature with any man, woman or animal”.

While the statute criminalises all anal and oral sex, it has largely affected same-sex relationships.

Human rights groups say police have used the statute to harass and abuse members of the LGBT community.

LGBT reaction
LGBT reaction to the latest ruling has been joyous given that the community has fought vigorously to strike down the law.

Equal rights activists had argued that the very existence of such a law was proof of discrimination based on sexual orientation.

LGBT activist Harish Iyer said “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.”

Countries where homosexuality is illegal
The 2017 report from the International Lesbian, Gay, Bisexual, Trans and Intersex Association ILGA lists 72 countries and territories where same-sex relationships are still criminalised, although that includes India before its latest ruling.

Most of them are in Africa, the Middle East and other parts of south Asia.

The report said homosexuality could still result in the death penalty in eight nations.

 

Nneka Ukachukwu