In a historic victory for LGBT rights, India’s Supreme Court has overturned Section 377 of the Indian Penal Code, which had deemed consensual gay sex a crime.
While announcing the ruling, many of the justices noted that the unanimous overturning of the law was long overdue. Chief Justice Dipak Misra called Section 377 “irrational, indefensible and manifestly arbitrary,” while speaking before the courtroom.
— The New Indian Express (@NewIndianXpress) September 6, 2018
Fellow justice Indu Malhotra acknowledged that the ruling was long overdue. “History owes an apology to members of the LGBT community,” she said.
As the New York Times notes, the justices made it clear that they knew they were making a historic decision. “Nation after nation has been extending full rights to gay people under the law, and now India, as the world’s second-most populous country, stands, at least legally, among the more progressive,” the paper wrote.
Section 377 was written in the 1960s and was the remnant of a colonial era law implemented under British rule. Notably, the Indian Supreme Court went out of its way to say the country’s constitution was not “collection of mere dead letters” and can and should evolve with the changing times.
Congratulations to all the activists and petitioners on #SupremeCourt judgement scrapping #Section377 Your perseverance just made #India a freer place for everyone ! #LoveIsLove #Pride #377Verdict #377Scrapped Three cheers for the #SupremeCourt pic.twitter.com/grA64TTB3w
— Swara Bhasker (@ReallySwara) September 6, 2018
But while the justices are rightly being praised for the verdict, the overturning of Section 377 is really the result of years of activism by India’s LGBT community. “This decision is basically saying, ‘You are not alone,’ ” said Menaka Guruswamy, one of the lead attorneys representing the gay Indians who challenged the law. “The court stands with you. The Constitution stands with you. And therefore your country stands with you.”
Among the petitioners who challenged the law were activists, organizations, human rights groups as well as individuals, reports Scroll.in. “This was an outdated, colonial and an intolerant law. The problem was inequality, cruelty and injustice,” said journalist and filmmaker Sunil Mehra, who was one of the petitioners. “Now we have the legal rights. This should trickle down to others.”
Added fellow petitioner Ritu Dalmia, “This is the first step in a fight against homophobia … It is a great day for the Constitution. This is more than decriminalisation. This is about human rights.”
In a powerful op-ed for Outlook India, Harish Iyer expanded on the idea that Thursday’s verdict was a victory of all of India’s minority communities.
“The five member jury, with this judgment, has affirmed that the rights of no citizen, either singly or as a part of a community is ever eligible to be disregarded because of the sexual orientation or gender identity,” wrote Iyer. “Our numbers don’t matter. This confirms that in our nation the majority doesn’t determine the lives of the minorities. And most importantly, it brings to the fore the fact that even if I am just one of a kind, the law of my land will respect my mankind.”
By striking down criminalization of same sex relations under #Section377 India's #SupremeCourt has taken a momentous step that will resonate around the world. Over 70 countries, including many in the Commonwealth, that still have such discriminatory laws should also repeal. @hrw
— meenakshi ganguly (@mg2411) September 6, 2018
But while global human rights groups are celebrating the ruling, they are also drawing attention to other former British colonies, including Bangladesh and Pakistan, that still have Section 377 as part of their penal code.
“India’s Supreme Court has taken a momentous step that will resonate around the world, tweeted Meenakshi Ganguly, the South Asia director for Human Rights Watch. “Over 70 countries, including many in the Commonwealth, that still have such discriminatory laws should also repeal.”