“History owes an apology to LGBT” – Indian Supreme Court Decriminalizes Gay Sex

Younis Sideeq Wani writes a detailed Report on the landmark SC Judgement of Decriminalization of Gay Sex in India

#LoveWins:

“Section 377 is irrational, indefensible and manifestly arbitrary,” – CJI Dipak Mishra was quoted yesterday. In a landmark judgement, India’s Supreme Court struck down Section 377 of Indian Penal Code (IPC) as illegal and arbitrary. The ruling overturns a 2013 verdict that upheld a colonial-era law, known as section 377, under which homosexuality is categorized as an “unnatural offence”.

This judgment embarks a new dawn for the personal liberty and is a major victory for LGBT community that has been toiling hard and persistently to legalize gay sex. “The law must be interpreted as per the requirement of changing times,” said Supreme Court in its judgement.

What have judges said?

The five-judge Constitution bench – comprising Chief Justice of India (CJI) Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra – was unanimous in its decision.

“Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, I am what I am, so take me as I am“.

“LGBT Community has same rights as of any ordinary citizen. Respect for each other’s rights, and others are supreme humanity. Criminalizing gay sex is irrational and indefensible,” Dipak Mishra- CJI.

Another judge, Indu Malhotra, said she believed “history owes an apology to LGBT community and their families for ostracizing them”.

Justice DY Chandrachud said, “the state had no right to control the private lives of LGBT community members and that the denial of the right to sexual orientation was the same as denying the right to privacy.”

What do the people say?

It is believed that up to 8% of India’s population – 104 million people – might be LGBT, one of the largest such populations in the world. Ritu Dalmia, one of the five LGBT campaigners who put their names to the legal petition that succeeded on Thursday, said the verdict made her feel hopeful.

“I was turning into a cynical human being with very little belief in the system, but honestly this has really shown once again that we are a functional democracy where freedom of choice, speech and rights still exist,” she said.

“Today is a historic day,” said Anand Grover, one of the lawyers who led the case. “The future is for everybody to be included, to realize their fundamental rights of equality, privacy, dignity et cetera. That is what the court has stated and given directions that this be made available and known to everybody.”

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Congress leader Shashi Tharoor, who’s long been a supporter of gay rights, said his stand is now vindicated.

Advocate Prashant Bhushan hails the verdict and notes “how the law was used for long by governments and police to harass people and intrude into their privacy”.

International Reaction

Several global media houses tribute the Indian Supreme Court’s judgement. The Washington Post noted that activists had fought for more than a decade to overturn Section 377. The judgment reflects rapid social change in India, where only five years ago, the top court upheld the same law,” The Washington Post says. “Since then, campaigners have mobilized a movement to spread awareness about gay rights.”

A report in The New York Times describes the ruling as a ‘groundbreaking’ victory for gay rights in India. 

BBC, which describes the verdict as historic, noted that in a largely conservative India, where “leaders of all religions have consistently opposed gay sex, it will still be a while before attitudes change and the community finds full acceptance”.

“Thursday’s historic ruling is the culmination of a lengthy and often fraught legal battle for equality in a country where homosexuality remains taboo,” CNN reports.

Where is homosexuality still illegal?

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The 2017 report from the International Lesbian, Gay, Bisexual, Trans and Intersex Association (Ilga) lists 72 countries and territories where same-sex relationships are still criminalized, although that includes India before its latest ruling. Most of them are in Africa, the Middle East and other parts of South Asia. The report said homosexuality could still result in the death penalty in eight nations.

Well, India has come a long way with this historic judgement. This brings hope for an equal and better society.

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