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NEW DELHI – In a groundbreaking victory for gay rights, the Indian Supreme Court on Thursday unanimously overturned one of the world's oldest consensual gay sex bans, ending a legal battle that had lasted for years and was burying one of the most prominent remnants of India. colonial past
After weeks of deliberation in the Supreme Court and decades of fighting by gay Indians, Indian Chief Justice Dipak Misra said that the colonial law known as Section 377 was "irrational, indefensible, and obviously arbitrary".
"We have to say goodbye to prejudice and hold all citizens accountable," he told a court.
The court said that homosexuals are now entitled to all constitutional protections under Indian law and that any discrimination based on sexuality would be illegal.
Throughout the country, explosions of happiness have erupted, as well as demonstrations of indignation.
Gay people hugged, danced, kissed and closed their eyes and cried on the steps of the Bangalore High Court. In Mumbai, human rights activists have unleashed a confetti blizzard.
In their judgments, the judges said that homosexuality was "natural" and that the Indian constitution was not a "collection of mere dead letters" and that it should evolve over time.
The court said that section 377, drafted in the 1860s to cover what was then considered to be abnormal sexual acts, would still be used in case of bestiality, for example, but that it could no longer to be applied to consensual gay sex.
Indian judges seemed well aware of the place they occupied in history. Nation after nation, the law grants full rights to homosexuals, and now India, the second most populous country in the world, is, at least legally, among the most progressive.
Human rights advocates said they hoped the decision would be passed around the world.
"This decision is extremely important," said Meenakshi Ganguly, South Asia director for Human Rights Watch. This could set a precedent for countries with similar laws in the colonial era to end their "discriminatory and regressive treatment" of homosexual and transgender citizens, she said.
The judges seemed moved by the stories heard by the homosexual complainants about harassment, blackmail, abuse and persecution.
"History has to apologize to community members for the delay in securing their rights," Judge Indu Malhotra said.
Menaka Guruswamy, one of the leading gay lawyers, called Thursday's decision a "big victory" with important implications.
Inside the courtroom, Ms. Guruswamy said, the atmosphere was "optimistic, dynamic, very enthusiastic". As the judges read their decision, the crowd tried to stay composed. Outside, a cheering went up and people hugged each other.
"Basically, this decision says," You're not alone, "Ms. Guruswamy said. "The court is with you. The constitution is with you. And so your country is with you. "
But India remains a conservative country in some respects, and some radical religious groups – Hindus, Muslims and Christians – have expressed anger.
"It's shameful," said Swami Chakrapani, chairman of India's Hindu Mahasabha, a conservative Hindu group. "We give credibility and legitimacy to people with mental illness."
India has a mixed record on the issue. His dominant religion, Hinduism, is actually quite permissive for same-sex love. Hindu temples dating back centuries represent erotic encounters between members of the same sex and, in some Hindu myths, men become pregnant. In other countries, transgender people enjoy a special status and are praised for their loyalty.
But this culture of tolerance has radically changed under British rule. India was intensely colonized at the height of the Victorian era, when the British Empire was at its peak and the social mores in England were conservative.
It was at this point that the British introduced section 377 of the Indian Penal Code, imposing a life sentence to "anyone who has carnal sex against the order of the United States." nature". anyone who is having anal or oral sex.
Although more and more Indians have emerged in recent years and the acceptance of gay, lesbian and transgender people has increased to some degree, the fact that intimate behavior is still criminalized has created a lot of shame and discouraged many Indians.
They discussed earlier similar anti-sodomy laws that had been overturned in the United States, Canada, England, and Nepal, the smallest and poorest neighbors in India. And they said that Section 377 had a long and ugly history as a cover for blackmail, harassment, and sexual assault of gay and transgender Indians.
On occasion, lawyers went beyond the legal arguments and asked the judges to recognize the applicants' humanity.
Ms. Guruswamy spoke about the decades-long relationship between two former petitioners, Navtej Singh Johar and Sunil Mehra, and the sacrifices made by both parties to maintain their secret partnership.
Ms. Guruswamy encouraged the judges to think of all the young homosexuals who did not want to go that route and spend their lives hiding who they really were.
"Tell my young clients that their lives will be different," she said. "The recognition of equality of citizenship is the business of life, so that they know that they are loved, protected."
During the hearings, the judges reported that they were ready to overturn this law. Judge Indu Malhotra described homosexuality as "variation and not aberration". And after a lawyer who appeared for the Indian government tried to stop Ms. Guruswamy, Chief Justice Misra said, "Let her talk!
It is interesting to note that India's main political leaders, who generally never resist an opportunity to speak out on a burning issue, have for the most part stayed out of the debate.
Prime Minister Narendra Modi has spoken very little about gay rights, despite the conservative nature of his party, Bharatiya Janata, on some social issues.
At the July hearings, the central government announced that it was will not take a position on Article 377.
Some Christian groups in India have defended the law with the most wit. Counsel for these groups argued that sexual orientation was not innate and that the decriminalization of gay sex would result in the transmission of H.I.V.
Prosecution under the law was rare. But still, many Indians feared that if they reported crimes such as rape, they would be arrested. Some homosexuals told disturbing stories about the rape by police and then threatened with prison when they showed up.
Section 377 has been in the crosshairs for a number of years now, with the courts coming and going. In 2009, a court in New Delhi, the capital, ruled that the law could not be applied to consensual sex.
But Hindu, Muslim and Christian groups then appealed to the Supreme Court and in 2013 the court reinstated the law, saying that Parliament, not the courts, should take up the issue. In its judgment of that year, the Supreme Court justified this decision by writing that only "a tiny fraction of the country's population is lesbian, gay, bisexual or transgender".
The activists have regrouped. What they were looking for were people brave enough to serve as complainants and strong enough to withstand scrutiny. In 2016, five gay and lesbian Indians filed a challenge petition challenging section 377 on the grounds that it violated their rights to equality and freedom.
The initial group included Mr. Johar, dancer, and his partner, Mr. Mehra, journalist; Ritu Dalmia, a famous chief; Ayesha Kapur, a businesswoman; and Aman Nath, a hotelier.
As the Supreme Court was preparing to hear the case, more than 25 other Indians from various social and economic backgrounds joined them.
Anurag Kalia, a 25-year-old Bangalore engineer who was once afraid to say the word "gay" he practiced in front of the mirror, was among those who filed a petition.
"I whispered to him," he said.
As the court was preparing to announce its verdict, Mr. Kalia checked his phone "like crazy." After the judgment, he came out of his office for a few moments of calm, ready to celebrate, a little numb, uncertain of the future. held, but also feeling 'relief, relief'.
"There is a feeling that there is much more to come," he said. "It's only the first strikes."
