India’s top court strikes down ‘irrational, indefensible’ law

India’s Supreme Court on Thursday struck down a British-era law against homosexuality, handing campaigners a victory after several legal defeats.

The law from 1861 criminalised homosexuality, with a maximum penalty of life imprisonment.

The law was “irrational, indefensible and manifestly arbitrary”, said Chief Justice Dipak Misra, who led a five-judge bench that heard six petitions against the law.

Comparatively few people are tried under the law.

In 2015, the last year for which statistics are available, 1,491 people were arrested.

But the law was often used to harass and blackmail homosexuals, and it caused deep psychological distress to gay Indians, said Menaka Guruswamy, one of the lawyers who argued against the law in court.

Activists have been seeking judicial intervention against the law since 1994, when the first petition was filed by a non-profit organisation.

After that failed, the Naz Foundation, which works on HIV issues, introduced another petition in 2001.

In 2009, the Delhi High Court ruled in the Naz Foundation’s favour, arguing that the law was not applicable to relations between consenting adults.

But an appeal from religious bodies led to the Supreme Court overturning the ruling in 2013. At the time, the verdict argued that the law did not need to be struck down because “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”.

The first of a new batch of petitions was filed in 2016, and hearings began in July.

This time, Ms Guruswamy said, the petitioners were not non-profits but homosexual Indians who came together to plead that the law was against their freedom.

“That made a real difference,” she said.

“All of them spoke of mental health issues or depression, or lost relationships or sadness because of a lack of familial acceptance.”

The Indian government, which was a counter-party to the petition, did not defend the law, saying it would leave its future up to the wisdom of the court.

Prime Minister Narendra Modi’s Bharatiya Janata Party has sent mixed signals about the law in the past, with some members of its cabinet calling homosexuality immoral and others insisting that it should not be a crime.

But the government did not repeal the law, which was within its power, given the ruling party’s majority.

With this ruling, the court was confirming the right of homosexual Indians “to live with dignity”, said Rohinton Nariman, one of the five justices who heard the petitions.”