India court legalises gay sex in landmark verdict

09 September, 2018, 02:27 | Author: Genevieve Gibbs
  • India's top court to rule on decriminalizing gay sex

Jack Harrison-Quintana, activist and director of Grindr for Equality, applauded the striking-off of Section 377, saying the law was "historically put in place by the British to control the bodies of their colonial subjects" and that the apex court's decision would "reverberate all around the Commonwealth from Botswana to Singapore, where activists are still struggling to reclaim their rights in the wake of the British imperial project".

The 493-page verdict reads down the criminalisation of consensual sex between adults and confines Section 377 of the Indian Penal Code (IPC) only to the offence of bestiality and non-consensual acts.The judgment does not confer any further rights, although it does pave the way for LGBT members to demand equal rights guaranteed to citizens under the Constitution of India. We need to study what has been said and written with great care now.

But laws nearly always play an important role in changing mindsets, and by recognising the community's right to love, the Supreme Court has restored the dignity denied to them for a very long time.

A New Delhi High Court in 2009 declared Section 377 unconstitutional, but that decision was overturned in a ruling by three Supreme Court justices in 2013 on the grounds that amending or repealing the law should be left to Parliament. It noted that India is a signatory of worldwide treaties on rights of LGBTQ and it was obligatory to adhere to them. "Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors".

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.

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"I can't find the words to express my happiness", Anjali Gopalan, founder of the Naz Foundation, a nongovernmental organization that first began mounting a challenge to Section 377 in 2001, said in the courtroom just minutes after the verdict.

"Discrimination on the basis of sexual orientation is a violation of freedom of speech and expression", said Chief Justice of India Misra and Justice Khanwilka in their judgment.

Justice DY Chandrachud, said "It is hard to right the wrongs of history". India is still a conservative, diverse nation of 1.3 billion that often feels more like a continent than a country.

Modi's administration had initially opposed dismantling Section 377, though in July government lawyers said they would give in to the "wisdom" of the top court. The country's Supreme Court ruled that same gender intercourse is no longer a criminal offence.

She added that this was merely one strong step towards the long journey ahead. They vowed to continue to seek legal protection from violence and abuse and seek the right to marry and adopt children. The India that we are going to live in from now on is going to be a lot more inclusive and colourful.

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Several political, social and religious groups then mobilised to restore the law and in 2013 the Supreme Court struck down the High Court ruling. They are mothers and uncles and sisters and grandchildren, who know as well as we do that there is no substitute for equality.

Justice Indu Malhotra said that history in her opinion owes the LGBT community an apology for discrimination and ostracism, while Justice D.Y. Chandrachud said he believes that the LGBT community is entitled to equal citizenship and equal rights under the Constitution, India Today reported.

The verdict by the five-judge bench was unanimous.

The new sunshine of this day is that of a progressive India.

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