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Indian Court Legalises Gay Sex

A historic decision was made in India as its Supreme Court ruled that gay sex is no longer a criminal offence.

The ruling overturns a 2013 judgement that upheld a colonial-era law, known as section 377, under which gay sex is categorised as an “unnatural offence”.

Section 377 is a 157-year-old colonial-era law which criminalises certain sexual acts as “unnatural offences” that are punishable by a 10-year jail term. The law punishes, in its own words, “carnal intercourse against the order of nature with any man, woman or animal”.

The court has now ruled discrimination on the basis of sexual orientation is a fundamental violation of rights.

India’s biggest city has been in favour of scrapping the law, but strong opposition remains among religious groups and in conservative rural communities. This new law shows that the matter cannot be challenged. It represents a huge victory for the LGBT community in India.

The ruling was delivered by a five-judge bench headed by India’s outgoing chief justice Dipak Misra and was unanimous.

Reading out the judgement, he said: “Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional.”

Another judge, Indu Malhotra, said she believed “history owes an apology” to LGBT people for ostracising them.

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.

Even though it was rarely invoked when it involved consenting adults, section 377 could be – and was sometimes – used as a tool for harassment.

A bid to repeal section 377 was initiated in 2001 and was batted between court and government until 2009, when the Delhi High Court ruled in favour of decriminalisation.

Several political, social and religious groups then mobilised to restore the law and in 2013 the Supreme Court struck down the High Court ruling.

Anti-section 377 activists then submitted a “curative petition” – a formal request to review an earlier court order perceived as a “miscarriage of justice” – and in 2016 the Supreme Court decided to revisit its ruling.

The ruling brought tears to the face of some of the campaigners while others cheered.

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

According to the court, other aspects of section 377 dealing with unnatural sex with animals and children would remain in force.

The judges also explicitly said that they only ruled on the constitutional validity of section 377 and were not looking at it in terms of other rights such as those related to marriage or inheritance.

It remains too early to say what this will translate to in the longer term.

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