Gay rights activists hold a wet flag as they celebrate amid heavy downpour after the country鈥檚 top court struck down a colonial-era law that made homosexual acts punishable by up to 10 years in prison, in New Delhi, India, Thursday, Sept. 6, 2018.聽 (AP)
NEW DELHI 鈥� India鈥檚 Supreme Court on Thursday struck down a colonial-era law that made gay sex punishable by up to 10 years in prison, a landmark victory for gay rights that one judge said would 鈥減ave the way for a better future.鈥�
The 1861 law, a relic of Victorian England that hung on long after the end of British colonialism, was a weapon used to discriminate against India鈥檚 gay community, the judges ruled in a unanimous decision.
鈥淐onstitutional morality cannot be martyred at the altar of social morality,鈥� Chief Justice Dipak Misra said, reading the verdict. 鈥淪ocial morality cannot be used to violate the fundamental rights of even a single individual.鈥�
As the news spread, the streets outside the courthouse erupted in cheers as opponents of the law danced and waved flags.
鈥淲e feel as equal citizens now,鈥� said activist Shashi Bhushan. 鈥淲hat happens in our bedroom is left to us.鈥�
In its ruling, the court said sexual orientation was a 鈥渂iological phenomenon鈥� and that discrimination on that basis violated fundamental rights.
鈥淲e cannot change history but can pave a way for a better future,鈥� said Justice D.Y. Chandrachud.
The law known as Section 377 held that intercourse between members of the same sex was against the order of nature. The five petitioners who challenged the law said it was discriminatory and led to gays living in fear of harassment and persecution.
Jessica Stern, the executive director of the New York-based rights group OutRight Action International, said the original law had reverberated far beyond India, including in countries where gay people still struggle for acceptance.
鈥淭he sodomy law that became the model everywhere, from Uganda to Singapore to the U.K. itself, premiered in India, becoming the confusing and dehumanizing standard replicated around the world,鈥� she said in a statement, saying 鈥渢oday鈥檚 historic outcome will reverberate across India and the world.鈥�
The court鈥檚 ruling struck down the law鈥檚 sections on consensual gay sex, but let stand segments that deal with such issues as bestiality.
Homosexuality has a tangled history in India, and some of Hinduism鈥檚 most ancient texts are accepting of gay sex. But same-sex couples have also been harassed for centuries in many Indian communities, whether Hindu, Muslim or Christian.
Transgendered people known as 鈥渉ijras,鈥� for example, have long been a common sight in India. But their treatment 鈥� both shunned as impure, and embraced for the belief that they can bring powerful blessings 鈥� reflects the complexities of gay life here.
Homosexuality has gained a degree of acceptance in deeply conservative India over the past decade, particularly in big cities. India now has openly gay celebrities, and some high-profile Bollywood films have dealt with gay issues. But many gay people still face isolation and persecution, and the court鈥檚 ruling will do little to change life on the ground for millions of people.
On Thursday, a leader of a prominent hard-line Hindu group noted that while it doesn鈥檛 see homosexuality as a crime, it believes gay marriage is not 鈥渃ompatible with nature.鈥�
Arun Kumar, a spokesman for the Rashtriya Swayamsevak Sangh, the parent organization of the ruling Bharatiya Janata Party, said Indian society 鈥渢raditionally does not recognize鈥� gay relationships, the Press Trust of India news agency reported.
A New Delhi High Court in 2009 declared Section 377 unconstitutional, but that decision was overturned in a ruling by three Supreme Court justices in 2013 on the grounds that amending or repealing the law should be left to Parliament. But lawmakers failed to take action and in July the government told the Supreme Court to give a ruling in the case.
Sukhdeep Singh, a gay rights activist and editor of Gaylaxy Magazine, said the community still had a lot of distance to go 鈥渢o be legally with your partner.鈥�
鈥淭his will obviously open the doors for a lot of more things, more civil rights. And we鈥檒l fight for our rights, definitely. This is the first battle that has been won and there are many more battles that we are going to fight,鈥� he said.