Indian court verdict ends 158-year-old colonial legacy

Human rights activists say they hope decision will reverberate around the world as the second-most populous nation on the planet decriminalises consensual gay sex

New Delhi: In a groundbreaking victory, India’s Supreme Court yesterday unanimously struck down one of the world’s oldest bans on homosexuality, putting to rest a legal battle that stretched for years and burying one of the most glaring vestiges of India’s colonial past.

After weeks of deliberation in the Supreme Court, India’s Chief Justice, Dipak Misra, said that the colonial-era law known as Section 377 was “irrational, indefensible and manifestly arbitrary”.

“We have to bid adieu to prejudices and empower all citizens,” he told a packed courtroom here.

We have to bid adieu to prejudices and empower all citizens … We cannot change history but can pave a way for 
a better future.”

 – Dipak Misra | Chief Justice of India

India’s apex court said that gay people were now entitled to all constitutional protections under Indian law and that any discrimination based on sexuality would be illegal.

All around the country, explosions of happiness erupted — and some of outrage, as well. People hugged, danced and cried on the steps of the high court in Bengaluru. In Mumbai, human rights activists unleashed a blizzard of confetti.

In their judgements, the justices said that homosexuality was “natural” and that the Indian Constitution was not a “collection of mere dead letters” and should evolve with time.

“Constitutional morality cannot be martyred at the altar of social morality,” Chief Justice Misra said, reading out the verdict. “Social morality cannot be used to violate the fundamental rights of even a single individual.”

“We cannot change history, but can pave a way for a better future,” said Justice D.Y. Chandrachud, another judge who was part of the historic verdict.

The Indian justices seemed well aware of the place they were taking in history. Nation after nation has been extending full rights to gay people under the law, and now India, as the world’s second-most populous country, stands, at least legally, among the more progressive.

Human rights activists said they hoped this decision would reverberate around the world. “This ruling is hugely significant,” said Meenakshi Ganguly, the South Asia director for Human Rights Watch.

The court said that Section 377, which was written in the 1860s to cover what were then considered unnatural sexual acts, would still be used in cases of bestiality, for instance, but that it could not be applied anymore to homosexuality.

‘History owes an apology’

The justices seemed moved by the stories they had heard in court from the plaintiffs about harassment, blackmail, abuse and persecution. “History owes an apology to members of the community for the delay in ensuring their rights,” Justice Indu Malhotra said.

Menaka Guruswamy, one of the lead lawyers representing the petitioners, called the decision a “huge win” with important implications. In the courtroom, Guruswamy said, the mood was “optimistic, buoyant, very excited”. As the judges read out their decision, the crowd tried to remain composed. Outside, a cheer went up and people hugged each other tightly.

“This decision is basically saying, ‘You are not alone,’” Guruswamy said. “The court stands with you. The Constitution stands with you. And therefore your country stands with you.’”

However, in many ways, India remains a deeply conservative country and religious groups on several sides condemned the ruling. “It’s shameful,” said Swami Chakrapani, president of All India Hindu Mahasabha, a conservative Hindu group. “We are giving credibility and legitimacy to mentally sick people.”

India was intensely colonised during the height of the Victorian era, when the British Empire was at its peak and social mores in England were prim and often painfully proper. This was when the British introduced Section 377 of the Indian Penal Code, imposing up to a life sentence on “whoever voluntarily has carnal intercourse against the order of nature”.

In recent years, more and more Indians have come out, and acceptance of such communities has grown to some degree. In hearings in July, lawyers argued that the law was terribly out of sync with the times and legally inconsistent with other recent court rulings, including one made last year that guaranteed the constitutional right to privacy.

Out of the debate

They pointed to similar old laws that had been toppled in the United States, Canada, England and Nepal — the last mentioned being India’s smaller neighbour. And they said that Section 377 had a long and ugly history as a cover for blackmailing, harassing and sexually assaulting the communities.

Interestingly, India’s leading politicians, who usually never resist an opportunity to weigh in on a hot issue, have mostly stayed out of the debate.

During the hearings in July, the federal government had announced that it was not going to take a position on Section 377. It was some of India’s Christian groups that put up the most spirited defence of the law. Lawyers for these groups argued that sexual orientation was not innate and that decriminalising gay sex would lead to the transmission of HIV. Prosecution under the law was rare.

Even then, many Indians feared that if they reported crimes like rape, they would be the ones arrested.

Section 377 has been in the cross hairs for several years now, with the courts going back and forth on it. In 2009, a court in New Delhi, the national capital, ruled that the law could not be applied to consensual sex.

However, Hindu, Muslim and Christian groups had then filed appeals in the Supreme Court, and in 2013, the court restored the law, saying that parliament, and not the courts, should take up the issue. In its judgement that year, the Supreme Court had justified the ruling by writing that only a “minuscule fraction of the country’s population” constitute such communities.

— New York Times News Service


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