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Members of the LGBT community dance to celebrate after the country's top court struck down a colonial-era law that made homosexual acts punishable by up to 10 years in prison, in Bangalore, India, Sept. 6, 2018.
Aijaz Rahi/AP
Citizenship

India Decriminalises Homosexuality in a Huge Win for Gay Rights


Why Global Citizens Should Care
The UN’s Global Goals include a call to reduce inequalities, regardless of gender, sexuality, age, race, religion, or any other status. India’s decision that discrimination on the basis of sexual orientation is a violation of fundamental rights is a big step forward — and will hopefully provide an example to other countries where consensual gay sex remains illegal. You can join us by taking action for the Global Goals here

India’s supreme court has legalised consensual homosexual acts in a landmark ruling on Thursday, which puts an end to a 160-year-old law. 

Judges ruled that the law — Section 377 of the Indian Penal Code — discriminated against people on the basis of their sexual orientation, which they said was unconstitutional.

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Crowds of hundreds of people gathered outside the country’s highest court in New Delhi, cheering the news when it was announced. 

“Any discrimination on the basis of sexual orientation violates fundamental rights,” said the Supreme Court in the ruling. 

“The constitution is a living organic document… pragmatic interpretation has to be given to combat rigorous inequality and injustice,” it added. “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.” 

The law was imposed in India in 1860 as one of a number of laws against immorality and public vice that were put in place across the British empire, reported the Guardian

Previously, same-sex relationships could be punishable with a 10-year jail term, according to Al Jazeera

But activists are concerned that violence against the LGBTQ community might still persist, regardless of the law change, reported Al Jazeera. According to activists, a further law against discrimination would help efforts to combat homophobia. 

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The campaign to legalise homosexuality has taken decades. Early cases filed in 1994 and then 2001 were sent back and forth around higher courts that weren’t able to come to a decision, according to the Guardian

In 2009, Delhi’s high court found that banning gay sex between consenting adults was in breach of the country’s constitution, and the rights to life, liberty, and equality that it contains. 

But four years later, the supreme court then overturned the decision, arguing that the law had been used fewer than 200 times — so infrequently that it couldn’t be said to violate the constitution. Critics of the law still argued that it was used to blackmail LGBTQ Indians, and increased stigma and discrimination. 

Finally, in August 2017, the supreme court ruled there was a fundamental right to privacy and, as a result, said the 2013 decision was wrong. 

“It was unprecedented,” Delhi-based lawyer and legal scholar Gautam Bhatia told the Guardian. “The judges commented on a completely unconnected case to say it was wrong. But once they said it, with the imprimatur of a full bench behind it, section 377 was gone, implicitly if not formally.” 

Since July, the supreme court has been hearing petitions from the LGBTQ community against Section 377. 

The original group appealing the law included Navtej Singh Johar, a dancer; Sunil Mehra, a journalist; Ritu Dalmia, a celebrity chef; Ayesha Kapur, a businesswoman; and Aman Nath, a hotelier. 

Homosexual acts are still illegal in most of India’s neighbouring countries, including Pakistan, Sri Lanka, and Bangladesh, reported Al Jazeera