Emotional Celebrations In India As Top Court Legalises Gay Sex

Larry Hoffman
September 6, 2018

In 2009, a New Delhi High Court declared unconstitutional Section 377 of the law, which said same-sex intercourse was against the order of nature. The law was usually enforced in cases of sex between men, but it officially extended to anybody caught having anal or oral sex.

Reacting to the historic SC verdict on decriminalising gay sex, Arun Kumar, Akhil Bharatiya Prachar Pramukh of RSS, said, "Like the Supreme Court we too do not consider this a crime".

The law has also been a means to blackmail or assault gay and transgender people.

Expressing his happiness, senior Congress leader Shashi Tharoor said the judgement "shamed" BJP MPs who had opposed him on the issue in the Lok Sabha.

Occasionally, lawyers pushed beyond the legal arguments and made pleas for judges to recognise the humanity of the petitioners. One thing we have learned from the dilly-dallying of courts over the past decade is the fact that even when we have freedom, it could be taken away at any time. At least one had been arrested, beaten and jailed under Section 377 after handing out condoms near a train station, according to NPR. Justice Indu Malhotra called homosexuality a "variation, not an aberration". CJI Dipak Misra stated that constitutional questions can not be decided by referendum when one lawyer argued that popular opinion should be examined to decide Section 377.

India's leading politicians have mostly stayed out of the debate.

She told the court: "History owes an apology to these people persecuted by Section 377 for the social ostracism caused by the section".

"Section377 is arbitrary. The LGBT community possesses rights like others".

It was some of India's Christian groups that put up the most spirited defence of the law.

"Sexual orientation is one of many biological phenomenon".

Prosecution under the law was rare.

The unanimous ruling comes in response to a petition filed by five people who said they were living in fear of being harassed and prosecuted by police.

A five-judge Constitution bench of the Supreme Court unanimously struck down a part of the 158-year-old law under Section 377 of the IPC, which criminalised consensual unnatural sex. It was reinstated in 2013 after four years of decriminalization, Reuters reported.

Activists had been fighting the ban since the 1990s, suffering several court reverses before Thursday´s verdict.

It also hoped the ruling will be the first step towards guaranteeing the full range of fundamental rights to such persons. The petitioners are Bharatnatyam dancer Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder Aman Nath and businesswoman Ayesha Kapur.

Supreme Court will pronounce their verdict on Section 377 today, September 6 at 10:30 am. "This may not be the ideal way to come out to my parents but yes, we are not criminals anymore. we are who we are", said Smriti adding that the war was not won yet, it was only a battle.

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