India’s Supreme Court has ruled gay sex is no longer a criminal offence in the country.
The historic ruling overturns a 2013 judgement which upheld a colonial-era law, known as section 377, which categorised gay sex as an ‘unnatural offence’.
It was one of the world’s oldest laws criminalising gay sex, with the country reluctant to overturn it, until now.
Campaigners cheered and broke into tears outside the court after the landmark ruling was made.
Reading out the judgement, Chief Justice Dipak Misra said:
Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional.
Until now, violation of the section 377 ruling meant people faced a 10 year jail sentence.
India’s gay and transgender communities have been fighting for this law to be overturned, with equal rights activists arguing even the existence of the law was proof of discrimination based on sexual orientation, as BBC reports.
Speaking after the ruling, Justice Indu Malhotra said history owed an apology to LGBT people for the ostracisation and discrimination they’ve faced.
Justice DY Chandrachud added, the treatment of homosexuality as a disorder in India has had an impact on the mental health of gay people, as per India Today.
Section 377 had been struck down by the Delhi High Court in 2009, but after several political, social and religious groups fought against it, the law was reinstated by the Supreme Court in 2013, after it was deemed ‘legally unsustainable’.
Now though, the 157-year-old law has been overturned after 32 separate petitions were filed by many high-profile people.
The court stated discrimination based on a person’s sexual orientation was a violation of freedom of expression.
It added how the main objective of having a constitutional society was to transform it for the better. Chief Justice Misra and Justice Khanwilkar also said same-sex relationships between adults are not harmful for children.
Danish Sheikh, a law professor at Jindal Global Law School and an LGBT advocate told CNN, although section 377 was rarely enforced in full, it created a culture of fear and repression within the LGBT community. This new change in legislation ‘creates a space of freedom where you can start expecting justice’.
Danish said:
After 2013, there was a lot of energetic activism in the country. The kind of outrage that was felt resonated across civil society, outside the LGBT community.
People had started to think of themselves as legal subjects and society had started to tolerate and even accept queer persons.
The United Nations welcomed the ruling, and said it hopes it’ll be ‘the first step towards guaranteeing the full range of fundamental rights to LGBTI persons’, as well as boosting efforts to eliminate discrimination.
Anjali Gopalan, founder of the Naz Foundation – a charity which works on sexual health in India and a petitioner against section 377 – said:
The next step is to start looking at issues of rights. Right now, it is just decriminalising. The right that every citizen of the country should have access to and should not be taken for granted.
Like the right to marry, the right to adopt, the right to inherit. Things that no one questions and that are clearly denied to a certain section of citizens.
The historic ruling marks the culmination of years of hard work and long legal battles by campaigners in India.
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Charlie Cocksedge is a journalist and sub-editor at UNILAD. He graduated from the University of Manchester with an MA in Creative Writing, where he learnt how to write in the third person, before getting his NCTJ. His work has also appeared in such places as The Guardian, PN Review and the bin.