In India, under the colonial-era law, homosexual activity was punishable by up to 10 years in jail but today marks an end to that injustice as The Supreme Court reversed its controversial British-era ban on consensual gay sex. In a historically defining moment, The Supreme Court judges struck down the anti-gay law with a unanimous judgement, in what is being hailed as one of the biggest human rights victory in India.
In the decisions leading up to the ruling, one of The Supreme Court judges described the law, known as section 377, as “indefensible and irrational”. The judges also said gay people in India face deep-rooted trauma and live in fear.
“The right to live with dignity has been recognised. Sexual orientation is a natural phenomenon determined by biology and science,” the court’s judgement said.
“Any discrimination on this basis is unconstitutional.”
The section of the Indian penal code that criminalised gay sex came into force in 1862. It was briefly overturned in 2009, but the Supreme Court reinstated it in 2013.
Today’s ruling was met with scenes of celebration outside the court and around the country as the ruling was transmitted on live television across the country. The court was asked to reconsider its position by a small group of gay and lesbian activists who launched a legal petition.
While the penalty of jail time for gay sex had been rarely applied in recent years, India’s LGBTQI community reported it was used to harass and intimidate them.
The court heard petitions challenging the constitutional validity of Section 377 – a colonial-era law under which same-sex relationship is an “unnatural offence” punishable by a 10-year jail term. In a report by NDTV, these were some of the ground-breaking comments that lead to today’s ruling;
“Any discrimination on the basis of sexual orientation violates fundamental rights,” the Supreme Court said in its ruling.
“The constitution is a living organic document … pragmatic interpretation has to be given to combat rigorous inequality and injustice. Social morality cannot be used to violate the fundamental rights of even a single individual. Constitutional morality cannot be martyred at the altar of social morality.”
The judgement has ushered in a positive wave of change for India’s gay community.
“We become equal citizens with the removal of Section 377. Equal rights are accessible for us with this decriminalization,” one of the petitioners in the case, Ashok Row Kavi, told Al Jazeera.
Hundreds of LGBTQ ally and campaigners, who had gathered outside the Supreme Court in New Delhi, broke into loud cheers as news of the ruling reached them. Activists reported that the law banning homosexuality had been used to harass and target the community.
“This section 377 is a terrible colonial legacy,” Menaka Guruswamy, one of the lawyers representing the petitioners, had argued in court in July. She had urged the judges to “emancipate a class of people who have not been given the promises of our Constitution”.
The ruling Bharatiya Janata Party (BJP), which has an overwhelming majority in parliament, has been silent on the issue of homosexuality so far. The government told the top court it would leave the decision to “the wisdom of the court”. The ruling comes as a major respite but conservative Indians might not change their perception of the gay community, say activists.
India’s neighbour; China decriminalised homosexuality in 1997 and with this landmark ruling in India, a majority of Asians now will not face criminal charges for their sexual identities.
The Rustin Times would like to congratulate our Indian LGBTQI brothers and sisters on this ground-breaking milestone of acceptance and justice.