Homosexuality is Decriminalised in India

India’s supreme court has voted to strike down the 160-year-old law that criminalised homosexuality across the country, reports the BBC. The historic ruling comes after years of campaigning and protest from India’s LGBT+ community and overrules a 2013 judgement that upheld the colonial-era law.

The five-judge bench ruled that section 377 of the penal code, which bans sex “against the order of nature”, was discriminatory.

“Sexual orientation is one of the many natural phenomena,” said the Indian chief justice, Dipak Mishra, in his decision. “Any discrimination on basis of sexual orientation amounts to violation of fundamental rights.

"Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional."

“History owes an apology to members of the community for the delay in ensuring their rights,” wrote another judge, Indu Malhotra.

The verdict was met with cheers by an elated crowd that had gathered on the lawns outside the supreme court.

“History owes an apology to members of the community for the delay in ensuring their rights.”

“We’re not criminals in our own country,” said 19 year-old Smriti. “It’s a positive. I mean there’s so much work to be done, but it’s a great first step.”

“I was turning into a cynical human being with very little belief in the system,” said Ritu Dalmia, another Indian LGBT+ activist. “Honestly this has really shown once again that, at the end, we are a functional democracy where freedom of choice, speech and rights still exist.”

This decision hopefully marks the end of a fraught journey for the decriminalisation of homosexuality on the subcontinent. Activists have been trying to fight section 377 for decades, with cases filed as early as 1994 and 2001, both unsuccessful.

The Delhi high court actually overturned section 377 in 2009, finding the ban on gay sex violated consenting adults’ rights to life, liberty and equality as outlined by the country’s constitution. This decision was overruled just four years later by the supreme court which argued the law affected such a “minuscule fraction”of India’s population that it could not be said to violate their constitutional rights. The decision caught the country’s LGBT+ community completely off guard.

“It was surprising and a very strange verdict,” says Mohan, a lawyer in Delhi.

While it’s true that the number of Indians convicted of "carnal intercourse against the order of nature with any man, woman or animal"was relatively small, around only 200 people were convicted of the law, section 377 was used by police to harass and abuse the LGBT+ community. There also reports of everyday citizens using the law to blackmail queer Indians, while the surrounding stigma the law created hindered efforts to fight HIV/AIDS.

“What changed everything was last year’s privacy judgment,” said Gautam Bhatia, a New Delhi lawyer and legal scholar. “In August 2017, the supreme court held there was a fundamental right to privacy, and as part of that, five judges said the 2013 decision was wrong.

“It was unprecedented. The judges commented on a completely unconnected case to say it was wrong. But once they said it, with the imprimatur of a full bench behind it, section 377 was gone, implicitly if not formally.”

Many Indians have argued their culture has a long history of accepting LGBT+ people, before British imperialism imposed conservative Victorian values and laws on the country.

"I'm absolutely elated. It's like a second freedom struggle where finally we have thrown a British law out of this country,” said LGBT activist Harish Iyer. “I think the next step would be to get anti-discrimination laws in place, or anti-bullying laws.

“This is the end of the beginning. It’s the beginning of many more battles we have to fight.”