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Published On: Thu, Sep 6th, 2018

Landmark ruling: India’s top court decriminalizes gay sex

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epa07000158 Indian activists of the lesbian, gay, bisexual, and transgender (LGBT) community react after the hearing at the Supreme Court, at the Humsafar Trust in Mumbai, India, 06 September 2018. India's Supreme Court ruled on 06 September 2018, that gay sex is no longer a criminal offence. Five Supreme Court judges repealed a colonial-era law (section 377) and legalize gay sex between consenting adults.  EPA-EFE/DIVYAKANT SOLANKI

NEW DELHI : “I can’t even explain how I am feeling right now. The long battle has been won. Finally we have been recognized by this country,” said Bismaya Kumar Raula, wiping away tears outside the court. Others gathered said that, while they had anticipated a positive outcome, the result still came as a shock.

“It’s an emotional day for me. It’s a mix of feelings, it’s been a long fight,” said rights campaigner Rituparna Borah. “There was not enough media or society support earlier but we have it now. People will not be seen as criminals anymore.” Though the law was rarely enforced in full, lawyers argued that it helped perpetuate a culture of fear and repression within the LGBT community.
The Supreme Court on Thursday decriminalised homosexuality with a prayer to the LGBTQ (Lesbian, gay, bisexual, transgender, and queer) community to forgive history for their “brutal” suppression.

A five-judge Constitution Bench, led by Chief Justice of India (CJI) Dipak Misra unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code is clearly unconstitutional.

The court, however, held that Section 377 will apply to “unnatural” sexual acts like bestiality. Sexual acts without consent continues to be a crime under the Section.In four concurring opinions, the Bench declared the 156-year-old “tyranny” of Section 377 as “irrational, indefensible and manifestly arbitrary”.
Section 377 won’t apply to consensual same-sex acts, says Supreme Court. The prayer for forgiveness came from Justice Indu Malhotra, the lone woman judge on the Constitution Bench. “History owes an apology,” she reached out to the rainbow spectrum.
Justice D.Y. Chandrachud called Section 377 “Macaulay’s legacy”, which continued for 68 years despite a liberal Constitution because of the manifest lethargy of lawmakers. He said the Section shackled the human instinct to love. It had been a reason for tragedy and anguish. “It is difficult to right a wrong by history. But we can set the course for the future,” he wrote in his separate opinion.
‘It is just a step’
Justice Chandrachud said decriminalisation of homosexuality was just a step. This case was about people wanting to live with dignity. Citizens cannot be pushed into obscurity by a colonial law.
A change in legislation will “create a space of freedom where you can start expecting justice,” Danish Sheikh, a law professor at Jindal Global Law School and LGBT advocate, told CNN. Indian LGBT activists in Mumbai react to the news that the Supreme Court has struck down Section 377.
Indian LGBT activists in Mumbai react to the news that the Supreme Court has struck down Section 377. Long battle Thursday’s historic ruling is the culmination of a lengthy and often fraught legal battle for equality in a country where homosexuality remains taboo.
In 2009, the Delhi High Court ruled that the ban on consensual gay sex violated fundamental rights.
The decision, which only applied to the Delhi region, was quickly overruled by the Supreme Court in 2013, following a petition launched by a loose coalition of Christian, Hindu and Muslim groups.
In its 2013 ruling, the Supreme Court said that only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” and it was therefore “legally unsustainable” to repeal the act. During the latest hearings, lawyers representing more than a dozen gay and lesbian Indians questioned the constitutional basis of that earlier ruling.

LGBT Indians gear up for possible U-turn on anti-gay laws
LGBT Indians gear up for possible U-turn on anti-gay laws
“It was a wrong judgment. It was not legal and it was based wrongly on the tenets of the constitution,” said Colin Gonsalves, one of the lawyers representing the current group of petitioners.
That case was strengthened last year, when the Supreme Court moved to uphold the constitutional right to privacy.

The ruling, which declared sexual orientation to be an “essential attribute of privacy,” helped galvanize campaigners.
“Last year’s ruling eviscerated the 2013 judgment,” said Gonsalves. “There is no issue now. There is not much left to argue,” he added.
Opposition to moves to overturn Section 377 had rested predominately on religious and moral objections. In an interview earlier this year, lawmaker Subramanian Swamy, a prominent member of the ruling Bharatiya Janata Party (BJP), described the legalization of gay sex as a “danger to national security” and “against Hindutva.”
Hinduism has traditionally maintained a flexible, non-prescriptive view of sexuality. However, in recent years hardline Hindu groups have taken a more conservative approach.In the run up to the judgment, the BJP refrained from taking a public stand, deferring instead to the court.
Out of the estimated 48 former British colonies that criminalize homosexuality, 30 still have laws based on the original colonial anti-LGBT legislation, according to Lucas Mendos, co-author of the 2017 International LGBTI Association “State-Sponsored Homophobia” report.
In the case of India, the original British law had remained in place more or less unchanged since it was introduced by British colonizers in the 1860s. According to India’s National Record Bureau, more than 2,100 cases were registered under the law in 2016. India did not maintain a separate database of prosecution under section 377 until 2014.
Arif Jafar, one of the current group of petitioners whose case the Supreme Court ruled on, was arrested in 2001 under Section 377 and spent 49 days in jail. Supporters in Mumbai react to the Supreme Court ruling that gay sex is no longer a criminal offense.
Supporters in Mumbai react to the Supreme Court ruling that gay sex is no longer a criminal offense.
Jafar now runs an informal support group in the northern state of Uttar Pradesh. The group, named “Trust,” provides counseling, support and sexual health services to gay and transgender persons.
In his petition, Jafar described the experience as dehumanizing and a violation of his fundamental rights. He also alleged that he was beaten and humiliated every day because of his sexuality.

Campaigners in India pointed out that the law didn’t only trap members of the LGBT community in the closet, it also invited other forms of discrimination, providing a cover for blackmail and harassment.
Members of India's LGBT community dance in celebration after the ruling was announced in Bangalore on Thursday.
Members of India’s LGBT community dance in celebration after the ruling was announced in Bangalore on Thursday.

“The constant fear of 377 we have felt will not be there for the coming generation,” said Yashwinder Singh, of Mumbai-based LGBT rights group The Humsafar Trust. “Laws getting passed is one thing but changing the society is a big challenge,” said Singh of the court’s decision, Thursday.

“Our work has started multifold now. We have to go and talk to people and change their mindset so that they accept every human as one.”Following the announcement Thursday, the Congress Party, the country’s main opposition, posted a message of congratulations on social media, welcoming the “progressive and decisive verdict” from the Supreme Court.As supporters celebrate the decision, activists will now be shifting focus to the broader issue of equality.
People celebrate the decision in Bangalore on September 6.

“The next step is to start looking at issues of rights. Right now, it is just decriminalizing,” Anjali Gopalan, founder of the Naz Foundation, which has spearheaded the fight against Section 377, told CNN.
“The right that every citizen of the country should have access to and should not be taken for granted. Like the right to marry, the right to adopt, the right to inherit. Things that no one questions and that are clearly denied to a certain section of citizens.(With Agency Inputs ).

 

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