India decriminalizes homosexuality
Five magistrates of the Supreme Court of India have decided unanimously to decriminalize homosexuality among adults in the Asian country. The historic sentence pronounced today establishes that “sexual relations between homosexual adults in private does not constitute an offense” and that any norm that pursues these practices is “discriminatory and a violation of constitutional principles.” In this way, the judicial decision ends a deliberation that began at the beginning of July, although with origins in a battle for the recognition of the rights of homosexuals that has lasted more than a decade. The LGTBI collective of India thus manages to update the legal framework of the world’s largest democracy, where an anachronistic colonial law of more than 150 years ago was still in force.
“Private and consensual relations between adults of the same sex do not constitute a violation of article 377 of the Criminal Code,” said the president of the Supreme Court of India, Dipak Misra, after deliberation with the other magistrates. The sentence supposes the abolition of the effects against the homosexual community that had the Victorian law of 1861, still valid in India, and in which it was established that the “carnal access against nature with a man, woman or animal, will be punished with imprisonment for life, or with imprisonment for term or that may be extended to 10 years and a fine. ”
At the gates of the court, a crowd of members of the LGTBI collective and its defenders waited from the early hours of Thursday morning to hear the final decision of the Supreme Court. Since the debate began two months ago, the sentence was felt in favor of the homosexuals of India who, according to the latest census, a number close to two million. Although it is estimated that many others have never declared their sexual orientation to the health authorities, precisely because of the criminalization that this law had on the tens of millions of members of the LGTBI community in India.
“It was not only about decriminalizing [homosexuality] but about recognizing our fundamental rights,” said Akhilesh Godi, one of the plaintiffs, who had already underlined the positive attitude of the magistrates since the beginning of the process.
Since July, the five magistrates of the Supreme Court had referred to the incompatibility between article 377 of the Criminal Code and the right to privacy, in relation to the ruling that the same court ruled last year, in favor of preserving sexual orientation as central element of the constitutional right to privacy of citizens. This resolution was what gave rise to the LGTBI collective to resume a legal battle begun in 2001.
At the beginning of the century, the Naz Foundation, an organization dedicated to the prevention of HIV in disadvantaged groups, challenged the constitutionality of the law due to the danger that dragged a group exposed to sexually transmitted diseases due to their social marginalization. In 2009, the New Delhi High Court declared its nullity for violating fundamental rights.
But the ruling was revoked in 2013 as a result of the petition of several religious groups and individuals who considered that the decision endangered the institution of marriage, so a room of two Supreme Court justices ruled that the law needed to be submitted to parliamentary consensus and not the decision of a minor court.
On this occasion and unlike the decision of 2013, the Government of India has remained on the sidelines while the magistrates indicated their intention to reserve the right to declare the nullity of the law, regardless of the abolition of the same by the Executive. Thus, the defenders of article 377 were reduced to several Christian groups that have insisted until the last moment that there is no scientific evidence to support that a person can be born with different sexual orientations and that the annulment of the law would suppose the spread of diseases such as AIDS.
The formal declaration of the Supreme Court refers specifically to “consensual relationships between adults” without completely nullifying the law, which protects against cases of sexual crimes against men. In the absence of a specific norm that contemplates this situation, the current provisions regarding the violation in the Indian penal code only refer to cases of sexual aggression against women, except the recent Law on the Prevention of Sexual Crimes against Children that specifies the sexual crime of any child.
Therefore, the Supreme Court has underlined the notion of consensus in its ruling, thus retaining the part of Article 377 referred to the vague notion of “carnal access against nature” to maintain the pursuit of sexual activities against the will of men, particularly, against members of the transgender and intersex communities.
According to data from the International Gay and Lesbian Association (ILGA) , about 1,500 people were detained in India under article 377 in 2015.