India Scraps Section 377 in Its Historical Verdict, Legalizes Gay Sex 01...
India Breaks the Colonial Shackles of Section 377, Embraces LGBTQ Community

The Supreme Court of India reversed its 2013 judgment declaring, “discrimination on basis of sexual orientation violates rights.”

Decriminalizing gay sex in a landmark edict, the court heard appeals questioning the constitutional legitimacy of Section 377- a colonial-era law according to which a same-sex relationship is an “unnatural offense” liable to be punished by a 10-year imprisonment.

Chief Justice of India Dipak Misra, head of the five-judge bench said, “Any discrimination based on sexual orientation violates fundamental rights. The constitution is a living organic document … pragmatic interpretation must be given to combat rigorous inequality and injustice. Social morality cannot be used to violate the fundamental rights of even a single individual. Constitutional morality cannot be martyred at the altar of social morality,” in Thursday’s ruling.

Ashok Row Kavi, one of the petitioners in the case stated, “We become equal citizens with the removal of Section 377. Equal rights are accessible for us with this decriminalization.”

As the news of new ruling reached the LGBTQ campaigners gathered outside the Supreme Court, in New Delhi, they broke into loud cheers,

At its heart, Section 377 was a battle for self-respect and dignity for queer individuals and community. This exhilarating victory belongs to all those who didn’t give up loving the wrong way, those on the streets, from inconvenient castes treated with disparage, but still, stand as heroes today.

The law vetoing homosexuality had been used as a tool to target and harass the community said the activists.

Menaka Guruswamy, one of the lawyers representing the petitioners, had argued in court in July, “This section 377 is a terrible colonial legacy.” She had urged the adjudicators to “emancipate a class of people who have not been given the promises of our Constitution.”

The governing Bharatiya Janata Party (BJP), which has a crushing majority in parliament, has chosen to keep mum on the issue of homosexuality so far. The government chose not to intervene the matter and leave it to “the wisdom of the court.”

There is no official data on the number of harassment cases since the victims are afraid to testify the crimes, fearing section 377 will be used against them.

Activist Ashok Row Kavi’s Humsafar Trust, an organization that works with the Indian LGBTQ community, however, included the data report in its appeal to the top court.

After the top court had re-criminalized homosexuality in 2013, two out of every five homophiles have faced blackmail while less than 20% of those surveyed had publicly disclosed their identity.

India’s neighboring country, China legalized gay sex long back in 1997 and with this ground-breaking ruling in India, the majority of the Asians can publicly accept and express their sexual identities.

Asia coordinator at the Geneva-based International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA), Lieu Anh Vu told, “It is indeed a historic moment for India, the world’s largest democracy and a global power on the rise. So, the world is watching, and its neighbors are watching. LGBTI communities in Sri Lanka, Pakistan and Bangladesh are also working to repeal similar remnants of British colonization in their own country and the ruling from India will feed into more dialogues, at least among LGBTI civil society across these countries.”

Homophilic acts still remain to be illegal in most of India’s neighboring countries, including Bangladesh, Sri Lanka, and Pakistan.

Kavi further said on India’s acceptation of LGBTQ community, “There were no persistent homophobia in Indic [Indian subcontinent] faith systems. There were no ancient injunctions against homosexuals or transgenders, known as Hijras, here. The societal homophobia that we see now seems to have been injected by the introduction of this anti-homosexual law, Section 377, by colonial British rulers.”

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