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Indian supreme court decriminalises homosexuality Indian supreme court decriminalises homosexuality
(about 1 hour later)
India’s supreme court has struck down a colonial-era law that effectively banned homosexual sex acts in a landmark ruling for gay rights. India’s supreme court has decriminalised homosexual sex acts in a landmark judgment for gay rights.
The court announced the verdict in Delhi on Thursday morning, drawing cheers from a crowd of LBGT Indians and their supporters gathered on a lawn outside the building. A five-judge bench of the country’s highest court ruled on Thursday that a 160-year old law banning sex “against the order of nature” amounted to discrimination on the basis of sexual orientation and was unconstitutional.
“It’s in our favour,” a young woman, Smriti, shouted as she embraced three others before they were mobbed by television cameras. They had seen a text message from a journalist inside the court. "That's when we knew they had lifted it," she said. “Sexual orientation is one of the many natural phenomena,” said the Indian chief justice, Dipak Mishra, in his decision. “Any discrimination on basis of sexual orientation amounts to violation of fundamental rights.”
“It’s a positive. I mean there’s so much work to be done, but it’s a great first step,” the university student, 19, said. “We’re not criminals in our own country.” “History owes an apology to members of the community for the delay in ensuring their rights,” wrote another judge on the bench, Indu Malhotra.
The announcement of the decision early on Thursday drew loud cheers from a crowd of LBGT Indians and their supporters, gathered on a lawn outside the supreme court.
“It’s in our favour,” a young woman, Smriti, shouted as she embraced three others before they were mobbed by television cameras. They had seen a text message from a journalist inside the court quoting the judges. "That's when we knew they had lifted it," she said.
“It’s a positive. I mean there’s so much work to be done, but it’s a great first step,” Smriti, 19, said. “We’re not criminals in our own country.”
Ritu Dalmia, one of the five LBGTI Indians who put their name to a legal petition that succeeded on Thursday, said the verdict made her feel hope once again.Ritu Dalmia, one of the five LBGTI Indians who put their name to a legal petition that succeeded on Thursday, said the verdict made her feel hope once again.
“I was turning into a cynical human being with very little belief in the system, but honestly this has really shown once again that, at the end, we are a functional democracy where freedom of choice, speech and rights still exist,” she said.“I was turning into a cynical human being with very little belief in the system, but honestly this has really shown once again that, at the end, we are a functional democracy where freedom of choice, speech and rights still exist,” she said.
The decision appears to mark the end of a fraught path to legalising homosexuality in modern India. Early cases filed in 1994 and then 2001 bounced back and forth for years between higher courts reluctant to rule on the issue.The decision appears to mark the end of a fraught path to legalising homosexuality in modern India. Early cases filed in 1994 and then 2001 bounced back and forth for years between higher courts reluctant to rule on the issue.
In 2009, the Delhi high court struck down Section 377 of the Indian penal code, finding its ban on “carnal intercourse against the order of nature” breached the rights to life, liberty and equality enshrined in the country’s constitution. In 2009, the Delhi high court quashed the cornerstone of Section 377 of the Indian penal code, finding that applying its ban on “carnal intercourse against the order of nature” to consenting adults breached the rights to life, liberty and equality enshrined in the country’s constitution.
That decision was overturned four years later by the supreme court, which argued that the 160-year old law that came to be associated with homosexual sex had been used so infrequently — fewer than 200 times, according to the judgment – and against such a “minuscule fraction” of the population that it could not be said to violate Indians’ constitutional rights. That decision was overturned four years later by the supreme court, which argued that the 1861 law that came to be associated with homosexual sex had been used so infrequently — fewer than 200 times, according to the judgment – and against such a “minuscule fraction” of the population that it could not be said to violate Indians’ constitutional rights.
Activists were blindsided by the decision and thousands of Indians grappled with a fundamental part of their identity being suddenly restored as a criminal offence, punishable by life imprisonment. “It was surprising and a very strange verdict,” says Mohan, a lawyer in Delhi, who asked to use only his last name, still concerned by stigma he might face in the workplace.Activists were blindsided by the decision and thousands of Indians grappled with a fundamental part of their identity being suddenly restored as a criminal offence, punishable by life imprisonment. “It was surprising and a very strange verdict,” says Mohan, a lawyer in Delhi, who asked to use only his last name, still concerned by stigma he might face in the workplace.
Critics of the law say that though prosecutions under section 377 are rare, it is frequently used to blackmail gay and lesbian Indians and contributes to their marginalisation, while also inhibiting efforts to fight diseases such as HIV/Aids.Critics of the law say that though prosecutions under section 377 are rare, it is frequently used to blackmail gay and lesbian Indians and contributes to their marginalisation, while also inhibiting efforts to fight diseases such as HIV/Aids.
Lawyers have steadily worked to overturn the supreme court’s decision but had a breakthrough in 2017.Lawyers have steadily worked to overturn the supreme court’s decision but had a breakthrough in 2017.
“What changed everything was last year’s privacy judgment,” said Gautam Bhatia, a Delhi-based lawyer and legal scholar. “In August 2017, the supreme court held there was a fundamental right to privacy, and as part of that, five judges said the 2013 decision was wrong.”“What changed everything was last year’s privacy judgment,” said Gautam Bhatia, a Delhi-based lawyer and legal scholar. “In August 2017, the supreme court held there was a fundamental right to privacy, and as part of that, five judges said the 2013 decision was wrong.”
He added: “It was unprecedented. The judges commented on a completely unconnected case to say it was wrong. But once they said it, with the imprimatur of a full bench behind it, section 377 was gone, implicitly if not formally.”He added: “It was unprecedented. The judges commented on a completely unconnected case to say it was wrong. But once they said it, with the imprimatur of a full bench behind it, section 377 was gone, implicitly if not formally.”
The decision legalises behaviour that many Indians say was accepted in their culture before the imposition of conservative Victorian mores during the British imperial era. The anti-sodomy law was imposed in the Indian colony in 1860 as part of a raft of laws against public vice and immorality instituted across the British empire. The decision legalises behaviour that many Indians say was accepted in their culture before the imposition of conservative Victorian mores during the British imperial era. The anti-sodomy law was imposed in the Indian colony as part of a raft of laws against public vice and immorality instituted across the British empire.
“I’m elated,” said Harish Iyer, a veteran gay activist and writer. “We have thrown out the British once again.”
But he cast forward to future battles for India’s LBGT community, including marriage, surrogacy, and basic acceptance in more conservative regions of the vast country.
“This is the end of the beginning,” Iyer said. “It’s the beginning of many more battles we have to fight.”
IndiaIndia
LGBT rightsLGBT rights
South and Central AsiaSouth and Central Asia
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