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India: Supreme Court Decriminalizes Homosexuality
(Blogmensgo, gay blog of September 14, 2018) On 6 September 2018, the Indian Federal Supreme Court ruled by a decision unanimously adopted by all five judges that § 377 of the Indian Criminal Code, which prohibits and punishes unnatural sexual relations, should no longer apply to consensual homo- or bisexual relations. India’s highest court had refused to decriminalize homosexuality in 2013 and had left this duty to the legislature. After a new appeal by the Supreme Court in February 2016, it decided not to repeal § 377, which had been in force since 1860, but to declare instead that it may no longer be used to punish homosexuality.
What happened? Here is a very lively speech by a journalist, followed by enthusiastic reactions on site:
The five-member panel of judges chaired by Dipak Misra jointly ruled that paragraph 377 should no longer apply to consensual sexual relations between homosexuals (whether gay or lesbian), heterosexuals or other sexual minorities.
Section 377 is irrational, indefensible and manifestly arbitrary.
Dipak Misra, Dipak Misra, vorsitzender Richter des indischen Obersten Gerichtshofs.
The law of 1860 punished oral intercourse (fellatio, anilingus, cunnilingus) and anal intercourse (both homosexual and heterosexual). Such sexual practices, which were considered “unnatural”, were punishable by prison sentences of up to 10 years, the same as for bestiality (zoophilia) and non-consensual sexual intercourse with another person.
This law, which dates from the British colonial era, had hardly been enforced for decades, but was often used as a pretext for police and administrative harassment of homosexuals. Not because they had homosexual relationships, but simply because they are homosexual.
Paragraph 377 of the Indian Penal Code will therefore not be repealed, but from now on will only apply to sexual acts with an animal or non-consensual sex with another person.
In the following video from India Today, the presenter begins the program by analyzing five myths about the decision of the Supreme Court. Unfortunately, the decision says nothing about domestic rape in marriage and other problems of sexual self-determination…
The judges insisted on signing three separate judgments aside from the joint decision in order to highlight the specifics of their personal opinions or feelings. In the joint decision and in the other three texts, the five judges cited such illustrious names as Shakespeare, Goethe, Schopenhauer, John Stuart Mill and even Leonard Cohen.
In the main decision, we can find this sentence, which comes close to a declaration of love to the judicial system:
The LGBTQ community needs the rainbow of hope for the sake of the humanity.
Dipak Misra und A.M. Khanwilkar
In his text, Judge Rohinton F. Nariman called on the government to work to eliminate the stigmatization of homosexuality and sexual minorities. A first step was taken in 2017 with the adoption of the Mental Health Act in India, which recognizes that homosexuality is not a mental illness.
Shortly before the verdict, the Indian Psychiatric Society (IPS) also called on the Indians no longer to regard homosexuality as a mental illness, and reaffirmed their position on this issue very clearly:
Homosexuality is not a psychiatric disorder and we recognise same sex sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality.
Indian Psychiatric Society
Indu Malhotra, the only woman among the five judges, asked Indian society to apologize for the years of stigmatization of the LGBT community.
D.Y. Chandrachud believes that criminalization of homosexuality is “unconstitutional” and that society must go far beyond pure decriminalization of homosexuality.
Section 377 is based on deep-rooted gender stereotypes. It persecutes people. It is a majoritarian impulse to subjugate a sexual minority to live in silence.
D.Y. Chandrachud, Supreme Court Justice of India.
LGBT citizens must have the same level of citizenship and protection under the law as others, because sexual orientation and the choice of partners are full “constitutional rights”, Judge Chandrachud said.
The judgments delivered by the Supreme Court and its five-member panel on 6 September 2018 appear to end a series of judgments that began in 2001.
In 2013, the Supreme Court refused to give a ruling and declared that it was the legislature's responsibility to pass the relevant laws. However, the legislature has neither repealed § 377 nor confirmed the constitutional and legal rights of LGBT persons nor demanded more respect and tolerance.
Comment: The Indian Supreme Court acted with courage and dignity. The Indian politicians did not act and were simply cowards.
Although the federal government and most opposition parties had spoken out in favor of decriminalizing homosexuality, they had asked the Supreme Court to only amend § 377 and deliberately omitted such sensitive topics as gay marriage or same-sex adoption.
Despite this accommodating gesture, neither the government nor the Hindu fundamentalists around Prime Minister Narendra Modi are really gay-friendly, nor are the Muslim and Christian leaders.
Even after the ruling of September 6, the path to full acceptance of the LGBT community by the Indian society will still be long. But at least: the presiding judge of the Supreme Court, who until then had been regarded as a pillar of political power, has now taken a clear and resolutely progressive decision in accordance with the Indian constitution. A first, timid but decisive step has now been taken.