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02 July 2009

India court ends colonial-era ban on homosexual acts

The New York Times
Thursday 2 July 2009

Indian Court Overturns
Brit Colonial-Era
Gay Sex Ban

by Heather Timmons

NEW DELHI — In a landmark ruling Thursday that could usher in an era of greater freedom for gays and lesbians in India, New Delhi’s highest court decriminalized homosexuality.

“Discrimination is antithesis of equality,” Delhi High Court judges wrote in a 105-page decision that is the first in India to directly guarantee rights for gays and lesbians. “It is the recognition of equality which will foster dignity of every individual,” the decision said.

Homosexuality has been illegal in India since 1861, when British rulers codified a law prohibiting “carnal intercourse against the order of nature.” The law, known as Section 377, has long been viewed as an archaic holdover from colonialism by its detractors.

Gay men and women have rarely been prosecuted in modern times, but it has been used to harass, blackmail and jail marchers and participants in gatherings.

The repeal applies only to the territory of India’s capital city, but it will force India’s government to either appeal the decision to the Supreme Court or repeal the law nationwide, lawyers said.

In their decision, Chief Justice A. .P Shah and Justice S. Muralidhar declared Section 377, as it pertains to consensual sex among people above the age of 18, in violation of key parts of India’s Constitution.

The law violates Article 14, which guarantees all people “equality before the law;” Article 15, which prohibits discrimination “on grounds of religion, race, caste, sex or place of birth;” and Article 21, which guarantees “protection of life and personal liberty” they said. The repeal comes after a broad campaign organized by gay rights activists, authors and celebrities, lawyers and AIDS awareness groups.

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