India courtroom legalises homosexual intercourse in landmark ruling

Leroy Wright
September 9, 2018

Justice Nariman briefly went through his order, but importantly said that the government must ensure that the apex court's judgment is given "wide publicity" on television, radio, print and online. The 158-year-old British-era law had the provision of punishment for consensual gay sex between adults.

The judgement also pronounced discrimination on the basis of sexual orientation a violation of freedom of expression, the India Today report said. "We want the relationship to be protected under Fundamental Rights and to not suffer moral policing", he said.

In 2009 the Delhi High Court effectively decriminalised homosexuality, saying a ban violated fundamental rights, but the Supreme Court reinstated it in 2013 after religious groups successfully appealed, saying that the high court had overstepped its authority and that the responsibility for changing the law rested with lawmakers not the courts.

The judgment reflects rapid social change in India, where only five years ago, the top court upheld the same law.

Thursday's ruling came after the Supreme Court declared a constitutional right to privacy in an unrelated case, opening the door for judges to reinterpret Section 377. The overturning of the criminality of homosexuality in India is a major breakthrough for the LGBTQ+ community worldwide and offers hope that those countries in Asia who still maintain prejudiced laws may follow suit.

CJI Misra, while reading out the judgement, said: "Any consensual sexual relationship between two consenting adults ─ homosexuals, heterosexuals or lesbians ─ can not be said to be unconstitutional", India Today reported. "No one has the right to question how do two adults perform the sexual intercourse and whether this intercourse is natural or unnatural", the court had said.

Activists have frequently said that the law has been used to harass members of the country's gay and transgender communities.

Noting that Section 377 rested on deep-rooted gender stereotypes, he said that "what 377 did essentially was to say that this is how a man should be and this is how a woman should be". He said his partner will join him in the evening to celebrate and "for the first time in our relationship we will be spending the time as normal human beings, not criminals".

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Section 377 is a colonial-era law which criminalises homosexual acts as "unnatural offences" that are punishable by a 10-year prison sentence.

While several companies including Hindustan Unilever, Infosys and Godrej told Reuters they welcomed the lifting of Section 377 that criminalised gay sex, others said they had no plans for better workplace rights. Gay sex is considered taboo by many in socially conservative India, as well as in neighbouring countries. This led to a fresh bunch of petitions which cited the 2017 historic judgment to read down Section 377 and decriminalize homosexuality.

Strongly repealing Section 377, he added that "denial of self-expression is like death".

After a long battle we have achieved this milestone.

Now that one of them is gone, there is little doubt that these closet followers of Britain's 19th century politician Lord Macaulay - even as they decry the secular groups as "Macaulay's children" - will hold on resolutely to the law on sedition as their only safeguard against the "anti-nationals" who, they believe, stalk the land.

Justice Chandrachud, while reading out the operative portion of his verdict, said members of LGBTQ community were targeted and exploited due to Section 377.

The Supreme Court decision is expected to be celebrated across India throughout the day and into the night.

Five Supreme Court judges will decide whether to strike the law down, following weeks of careful deliberation in New Delhi.

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