In a landmark victory, India’s Supreme Court has overturned a 150-year-old law from the colonial era to legalize consensual gay sex.
On Thursday, five judges ruled to repeal the law, rewarding India’s LGBT activists and their supporters for tireless campaigning.
According to CNN, the law criminalizing gay sex between consenting adults was passed down from the days of Britain’s rule of the country, which referred to gay sex as “against the order of nature.” The maximum sentence for the crime was a life in prison.
The case came to a head in the Supreme Court through the hands of “more than a dozen gay and lesbian Indians” who had petitioned the court. Their legal representation has said the decision “finally signals an end to the harassment and persecution of the LGBT community.”
Although the law wasn’t often enforced to the extent with which it was permitted, its existence still served to create a “culture of fear and repression within the LGBT community” said campaigners.
A change in legislation “creates a space of freedom where you can start expecting justice,” Danish Sheikh, a law professor at Jindal Global Law School and LGBT advocate, said.
It has been a long battle for campaigners, with a first victory coming in 2009 when the region of Delhi ruled that the “ban on consensual gay sex violated the fundamental rights of a citizen.”
Unfortunately, that ruling was again overturned in 2013 due to complaints by a coalition of Christians, Hindus, and Muslims.
The decision was justified because “only a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” and it was therefore “legally unsustainable.”
But Colin Gonsalves, one of the lawyers representing the current group of petitioners, disputed that judgment.
“It was a wrong judgment. It was not legal and it was based wrongly on the tenets of the constitution.”
Last year there was a surge in the interest of the case when the Supreme Court ruled that everyone had a right to privacy, including the LGBT community. It was decided that sexual orientation is also an essential attribute of privacy, making discrimination against someone over their sexual orientation unlawful.
“Last year’s ruling eviscerated the 2013 judgment,” said Gonsalves. “There is no issue now. There is not much left to argue,” he added.
The objections over the latest case were based solely on moral and religious grounds, with lawmaker Subramanian Swamy saying earlier this year that “legalization of gay sex [is] a danger to national security” and “against Hindutva.”
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