Groundbreaking victory for Gay Rights in India

After weeks of deliberation in India’s Supreme Court following years of struggle by the LGBT community in India, a revolutionary ruling was delivered by the Chief justice of India, Dipak Misra, who stated that the colonial-era law known as Section 377 was “irrational, indefensible and manifestly arbitrary.” He further commented: “social morality cannot be used to violate the fundamental rights of even a single individual... constitutional morality cannot be martyred at the altar of social morality.”  

The decision comprehensively strikes down one of the world’s oldest laws banning consensual gay sex.  Section 377, which was written in the 1860s to cover what were then considered unnatural sexual acts and was based on the England’s Buggery Act of 1533 piloted through Parliament by Henry VIII’s minister Thomas Cromwell as an “Acte for the punishment of the vice of Buggerie.”  The law had managed to survive on the statute in India despite having been scrapped in Britain in 1828.  Section 377 carried a severe sentence for those convicted, life imprisonment or at least ten years, so the section was a powerful tool in the wrong hands and was often used to intimidate members of the LGBT community.

The five-judge bench, set up in 2016 to determine whether section 377 violates fundamental rights guaranteed by the constitution.  In four separate but concurring verdicts, the five judges of the top court ruled that section 377 failed to make a distinction between consensual and non-consensual acts.  However they were very clear that consent was going to be the key and no one could impose their sexual orientation on others.  Bestiality will also continue to be an offence under section 377.  The National Democratic Alliance (NDA) stepped aside choosing not to make a stand on the matter but allowing the court’s wisdom to prevail with just one proviso that the court should clarify that the right to choose a partner should not extend to “perversions like incest.”

The 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.  Chief Justice Misra reiterated: “We have to bid adieu to prejudices and empower all citizens.”

The decision was greeted with great delight by many gay people who hugged, danced, kissed and closed their eyes and cried on the steps of the high court in Bangalore. In Mumbai, a blizzard of confetti was unleashed by human rights activists.  Whilst generally the ruling was met with joy there were some expressions of outrage.

Human Rights activist, Meenakshi Ganguly, the South Asia director of Human Rights Watch, hopes that that the ruling will lead the way to for other countries who were formerly under the colonial cosh to look at their colonial-era laws and end the discriminatory, regressive treatment of gay and transgender citizens. 

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