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Politics

India's supreme court overturns homosexuality ban

Colonial era law declared unconstitutional, but experts say change will be slow

Transgender people and college students take part in the Gay Pride Walk in Bhubaneswar, in the eastern Indian state of Odisha, on Sept. 1. (Getty Images)

NEW DELHI -- In a landmark ruling, India's Supreme Court on Thursday struck down a colonial-era law that criminalized homosexual acts between consenting adults.

The ruling came after the court on July 10 began hearing a number of petitions challenging Section 377 of the Indian Penal Code, an anti-homosexuality law that dates back to the 1860s when the British ruled India. The law prohibited "carnal intercourse against the order of nature," including consensual same-sex relations, and imposed punishments up to a life term in prison.

The Supreme Court in January agreed to re-examine its 2013 ruling, which set aside a 2009 Delhi High Court judgment legalizing homosexual acts between consenting adults.

According to the National Crime Records Bureau, a total of 2,187 cases had been reported under Section 377 in 2016, compared with 1,347 the previous year.

"A section of people or individuals who exercise their choice should never remain in a state of fear," the Supreme Court said, in its decision to revisit the constitutionality of Section 377.

Thursday's ruling came a year after a decision by India's highest court, in an unrelated case, which declared privacy a fundamental right under the Indian constitution, raising the hopes of gay rights activists that homosexuality would be decriminalized.

"Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles," the top court said, according to The Times of India newspaper.

Members of India's lesbian, gay, bisexual and transgender community were elated after the judgment was announced.

"At the stroke of the midday hour, as the conscience of many slept, India's LGBTQ awoke to light & freedom," tweeted screenwriter Apurva Asrani. "This moment came 71 years too late [in] history, 71 yrs after our brethren attained freedom [from the British]; but the soul of a community, long suppressed, has found utterance. Congratulations!"

Well-known Bollywood filmmaker Karan Johar also took to Twitter, saying, "Decriminalising homosexuality and abolishing #Section377 is a huge thumbs up for humanity and equal rights!"

Others, too, welcomed the ruling. Shashi Tharoor, a member of the opposition Indian National Congress party, said the Supreme Court had stood up for the equality and dignity of all citizens.

The just-overturned law subjected LGBT people to constant fear; they often complained of harassment by police. Many such people do not discuss their sexual orientation, as the subject remains taboo in socially conservative India.

"Section 377 of the IPC and some broad and vaguely worded laws, such as those that criminalize sex work and begging, allow law enforcement officials to persecute people, including through spurious criminal charges and prosecutions, based on their real or imputed sexual orientation and gender identity," the International Commission of Jurists said in a report last year.

Some experts believe the Supreme Court verdict will have a limited impact. "[The ruling] would be a very good beginning, but the mindset of the society as a whole won't change overnight," said Duru Arun Kumar, an associate professor of sociology at the New Delhi-based Netaji Subhas Institute of Technology.

"This beginning will have to be carried forward by initiating awareness campaigns, introducing some modules in school education and bringing about changes in parenting.

"The government and media, too, must help in a big way, otherwise the ground reality will remain the same," Kumar said, calling for a "multipronged" approach to acceptance of the LGBT community in society.

According to a May 2017 report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 72 countries have laws criminalizing homosexuality, including Afghanistan, Iran, Malaysia and Singapore.

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