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After 150 Years, India’s Supreme Court Decriminalizes Gay Sex

In a historic ruling, India’s Supreme Court has struck down a colonial-era ban on consensual gay sex, a move hailed by gay rights activists across the country. The ruling allows gay Indians to live more freely, without fear of prosecution under the law; though many still worry about the societal repercussions for being openly gay. With the removal of this Victorian-era law from India’s Constitution, gay individuals are afforded the same protections as other members of society making them less subject to systemic oppression.

Section 377 of the Indian Penal Code was established in the 1860s by British colonizers during their oppressive rule. The law banned sex that was “against the order of nature,” a phrase interpreted by many to prosecute gay individuals, both during colonial rule and once India achieved their independence. Many gay rights activists argued that it was just another manifestation of the ongoing impact of colonization. There have been multiple challenges to the law through the Indian High Court, but the matter was referred to the five-member Constitutional Bench of the Supreme Court. It was here, with unanimous support, that the law criminalizing -sex relations was struck down. The Hindu reported that the judges referred to Section 377 as “tyranny,” stating that it was “irrational, indefensible and manifestly arbitrary.”

Under the overturned law, gay individuals found in violation of Section 377 could be punished with up to 10 years of imprisonment. Although the law was usually used to persecute gay and bisexual men, it applied to gay and bisexual women as well. Besides the threat of prosecution, gay people were subject to blackmail on the basis of their sexuality, as well as extortion and violence.

In some cases, this violence was in the form of corrective rape, a term used to describe rape perpetrated on the basis of hatred for someone’s sexuality. The aim is causing them harm; forcing them to realize they are not gay or just as a violent form of homophobia.

Theoretically, the removal of this law would allow gay Indians to access the judicial system if they still found themselves being discriminated against on the basis of their sexuality.

Though overturning Section 377 is a major victory for gay rights and gay individuals across India, there is still much work to be done, as compulsory heterosexuality is still very much enforced — both socially and religiously.

The New York Times reported that the victory was condemned by conservative Hindu, Christian and Muslim groups across the country, with Swami Chakrapani, president of All India Hindu Mahasabha group saying “We are giving credibility and legitimacy to mentally sick people”.

Menaka Guruswamy, a lead lawyer representing the challengers to Section 377 stated that the decision says, “You are not alone. The court stands with you. The Constitution stands with you. And therefore your country stands with you.”

Cheers echoed across the courtroom, met by bellows of joy as gay Indians and their allies celebrated the ruling with confetti outside the court.

 

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