Homosexuality legal says Supreme Court

Geraldine Edwards
September 7, 2018

The Delhi High Court, in 2009, decriminalised homosexuality. Since the ruling, lawyers and human rights advocates have worked tirelessly to decriminalize gay sex.

Even as the community celebrates, it will have to gear up for other battles, said another gay rights activist, Ruth Chawngthu."A lot of people think that this is the end and everyone is going to have rights now, marriage, equality and whatever, but this not the end, this is just the beginning and we have a long way to go".

"It's putting things into practice that comes next", said Dutt.

Meenakshi Ganguly, the South Asia director at Human Rights Watch said, "The Supreme Court decision means that at long last same-sex relations are no longer a criminal offense in India".

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The Supreme Court ruling, in addition to decriminalizing gay sex, means that gay people are now entitled to constitutional protections, and can not be discriminated against on the basis of their sexuality.

"Section 377 inflicts tragedy and anguish; it has to be remedied", said Justice Chandachud on Thursday. Know All About the Law on Homosexuality & LGBTQ Rights.

The law banned "carnal intercourse against the order of nature with any man, woman or animal" - which was widely interpreted to refer to homosexual sex. What is Section 377 of IPC? "I am speechless! It's taken a long time to come but finally I can say I am free and I have equal rights as others", said Rama Vij, a college student in Kolkata who gathered with others to watch on television.

A five-judge bench in India's Supreme Court was unanimous in overturning the ban. A senior party member, Shashi Tharoor, said the "government has no space in bedrooms as this is a private act between consenting adults". "This may not be the ideal way to come out to my parents but yes, we are not criminals anymore. we are who we are", said Smriti adding that the war was not won yet, it was only a battle. "Let's rejoice but let us also reflect", he tweeted.

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Their judgement said: "We declare that Section 377 of the IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 (Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth) of the constitution". The victory was short-lived, however, when the Supreme Court overturned their decision in 2013 and kicked it back to the legislature.

During the hearing in July, the government told the apex court that it would leave to the wisdom of the court to decide the constitutional validity of Section 377. It said that prosecution under Section 377 was significantly less and it only affected "a minuscule fraction of the country's population" comprising lesbians, gays, bisexuals or transgenders. "If a law is unconstitutional, it is the duty of the court to strike it down".

It also hoped the ruling will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons.

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