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India legalises gay sex in historic court ruling

New Delhi, Thursday

In a historic decision, India’s Supreme Court has 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”.

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

Campaigners outside the court cheered and some broke down in tears as the ruling was handed down. Although public opinion in India’s biggest cities has been in favour of scrapping the law, there remains strong opposition among religious groups and in conservative rural communities.

But this ruling, from the top court, is now the final say in the matter and cannot be challenged. As such, it represents a huge victory for India’s LGBT community.

What have the judges said? Thursday’s 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.

The ruling effectively allows gay sex among consenting adults in private. It 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.

Even though it was rarely invoked when it involved consenting adults, section 377 could be — and was sometimes — used as a tool for harassment. It is not surprising then that campaigners are describing the verdict as a “new dawn for personal liberty”.

But in a largely conservative India, where leaders of all religions have consistently opposed gay sex, it will still be a while before attitudes change and the community finds full acceptance.

But laws almost always play an important role in changing mindsets, and by recognising the community’s right to love, the Supreme Court has restored the dignity denied to them for a very long time.

The 2017 report from the International Lesbian, Gay, Bisexual, Trans and Intersex Association (Ilga) lists 72 countries and territories where same-sex relationships are still criminalised, although that includes India before its latest ruling. Most of them are in Africa, the Middle East and other parts of south Asia. — BBC

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