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India just abolished a 157-year-old law banning gay sex

“Criminalizing carnal intercourse is irrational, arbitrary and manifestly unconstitutional."

by Tim Hume
Sep 6 2018, 3:53pm

Getty Images

Gay sex is legal in India. That was the judgement of the the Supreme Court in New Delhi Thursday, which struck down a colonial-era law that banned homosexual acts with the threat of prison. The ruling sparked jubilant scenes across the country, the culmination of a decades-long struggle for India’s LGBTQ movement.

The landmark ruling from the five judge bench overturned the 157-year-old law known as Section 377, which banned sex “against the order of nature.”

The court ruled unanimously that the law amounted to discrimination on the grounds of sexual orientation, and constituted a fundamental violation of rights.

“Sexual orientation is one of the many natural phenomena,” said Chief Justice Dipak Misra in his decision. “Any discrimination on basis of sexual orientation amounts to violation of fundamental rights.”

“Criminalizing carnal intercourse is irrational, arbitrary and manifestly unconstitutional."

The ruling represents a long-awaited victory for the LGBTQ community, which has waged a tortuous battle to legalize homosexuality in recent decades. Cases were filed to repeal the law in 1994 and 2001, before the Delhi High Court finally ruled in favor of decriminalization within its jurisdiction in 2009.

But conservative religious and political groups immediately pushed back, lobbying for the law to be restored; in 2013 the Supreme Court unexpectedly overturned the earlier judgment.

The 2013 ruling stated that because Section 377 had been used so infrequently, and because only a “minuscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders,” the law couldn’t be considered to violate Indians’ constitutional rights and it was therefore “legally unsustainable” to repeal it.

That reasoning baffled and dismayed LGBTQ activists, who filed a petition to overturn the decision, resulting in Thursday’s judgment — which represents the final say in the matter.

A member of the lesbian, gay, bisexual, transgender (LGBT) community celebrates the Supreme Court decision to strike down a colonial-era ban on gay sex, in Mumbai on September 6, 2018. (INDRANIL MUKHERJEE/AFP/Getty Images)

One of the five judges on the bench, Indu Malhotra, wrote that: “History owes an apology to members of the community for the delay in ensuring their rights.”

While Section 377 was rarely used to prosecute individuals — according to the 2013 Supreme Court ruling it had been used fewer than 200 times ­— critics said it created a climate of repression for the LGBTQ community.

Public opinion in India's biggest cities has been in favor of scrapping the law, but there remains strong taboos around gay sex in conservative, rural areas, and opposition from religious groups.

“I’m so excited, I have no words,” Debottam Saha, one of the activists who petitioned to overturn the law, told Reuters.

“We are no longer criminals, [but] it will take time to change things on the ground — 20 to 30 years, maybe.”

READ: The LGBTQ community is generationally fractured, but one organization thinks it can fix that

While the ruling Hindu nationalist Bharatiya Janata Party had promised to support whichever decision the Supreme Court made, at least one of its prominent lawmakers criticized the ruling.

“This verdict could give rise to other issues such as an increase in the number of HIV cases,” BJP MP Subramanian Swamy told CNN-News18. Earlier this year, he described the legalization of gay sex as a "danger to national security" and "against Hindutva," (“Hinduness,” the name of his party’s official ideology.)

But for many Indians, the ruling was a source of immense pride. “Hats off to all my #LGBT rights activist friends who have battled hard to get here,” tweeted journalist Anna MM Vetticad. “You have saved India from the shame of being one of the remaining countries in the world that criminalizes #homosexuality.”

Cover image: Indian members and supporters of the lesbian, gay, bisexual, transgender (LGBT) community celebrate the Supreme Court decision to strike down a colonial-era ban on gay sex, in Kolkata on September 6, 2018. (DIBYANGSHU SARKAR/AFP/Getty Images)

Angad Singh and Zeenat Saberin produced the original video report which aired July 23, 2018 on VICE News Tonight on HBO segment.