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With Landmark Ruling, India's Supreme Court Unanimously Strikes Down Colonial-Era Ban on Gay Sex

Human Rights Watch's South Asia director called it "a momentous step that will resonate around the world in communities that are fighting for equality."

Indians carry flag

People celebrated on Thursday after India's highest court struck down a ban on gay sex. (Photo: Times of India)

In a landmark ruling that led to celebrations in the streets in India and was lauded by human rights advocates the world over, the nation's Supreme Court on Thursday struck down the colonial-era ban on homosexual sex, which was reportedly one of the world's oldest laws of its kind.

"History owes an apology to members of the community for the delay in ensuring their rights."
—Indu Malhotra, Indian Supreme Court judge
"The court has affirmed that no one should be discriminated against for whom they love or what they do in the privacy of their bedroom," responded Meenakshi Ganguly, South Asia director at Human Rights Watch.

In a court ruling that quoted William Shakespeare, Oscar Wilde, and Leonard Cohen, chief justice Dipak Misra wrote that "criminalizing carnal intercourse under Section 377 Indian Penal Code is irrational, indefensible, and manifestly arbitrary," according to the Guardian.

"Any discrimination on the basis of sexual orientation violates fundamental rights," Misra continued. "Social exclusion, identity seclusion, and isolation from the social mainstream are still the stark realities faced by individuals today...and it is only when each and every individual is liberated from the shackles of such bondage...that we can call ourselves a truly free society."

"History owes an apology to members of the community for the delay in ensuring their rights," declared Indu Malhotra, a member of the five-judge panel that found the law unconstitutional.

Ashok Row Kavi, one of the petitioners in the case, told Al Jazeera: "We become equal citizens with the removal of Section 377. Equal rights are accessible for us with this decriminalization."

"Striking down Section 377 is a momentous step that will resonate around the world in communities that are fighting for equality," Ganguly added, while also noting that "like other countries, India has significant work to do to ensure that the rights of people who have been long marginalized on the basis of their sexual orientation or gender identity are fully protected."

The United Nations in India expressed hope that the ruling "will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons," and also "boost efforts to eliminate stigma and discrimination against LGBTI persons in all areas of social, economic, cultural, and political activity."

The ruling spurred celebrations in the streets:

"The decision appears to mark the end of a fraught path to legalizing homosexuality in modern India," the Guardian explained, outlining the series of court battles that led to this victory for LGBTQ Indians:

Early cases filed in 1994 and 2001 bounced back and forth for years between higher courts reluctant to rule on the issue.

In 2009, the Delhi high court quashed the cornerstone of Section 377 of the Indian penal code, finding that applying its ban on "carnal intercourse against the order of nature" to consenting adults breached the rights to life, liberty and equality enshrined in the country's constitution.

That decision was overturned four years later by the Supreme Court, which argued that the 1861 law that came to be associated with homosexual sex had been used so infrequently—fewer than 200 times, according to the judgment—and against such a "minuscule fraction" of the population that it could not be said to violate Indians' constitutional rights.

Activists were blindsided by the decision and thousands of Indians grappled with a fundamental part of their identity being suddenly restored as a criminal offense, punishable by life imprisonment.

Responding to the court's latest ruling, Asmita Basu of Amnesty International India said that "the judgment closes the door on a dark chapter of Indian history" and "marks a new era of equality for millions of people."

Human Rights Campaign global director Ty Cobb congratulated the plaintiffs as well as "the LGBTQ advocates who worked tirelessly for decades to achieve this tremendous victory." Cobb said his organization is hopeful that "this decision in the world's largest democracy and second most populous country will set an example and galvanize efforts to overturn similar outdated and degrading laws."

More than 70 countries around the world still criminalize consensual same-sex relations, according to Human Rights Watch, though "Kenya and Botswana, both of which inherited versions of the Indian Penal Code during the colonial period, currently have cases pending before their courts that would also strike down laws outlawing consensual same-sex conduct."

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