In a landmark ruling, India’s Supreme Court struck down a 157-year-old law that criminalizes consensual homosexual acts between adults. This decision puts to rest a legal battle that stretched for many years and finally burying – once and for all – one of the most glaring anti-LGBTQIA remnants of India’s colonial past.
In the 1860s, the British introduced Section 377 of the Indian Penal Code, imposing up to a life sentence on “whoever voluntarily has carnal intercourse against the order of nature.” While the law was usually enforced in cases of sex between men, it was officially extended to anybody caught having anal or oral sex.
The legal battle to strike down Section 377 lasted for years before the Delhi High Court ruled in 2009 that the law could not be applied to consensual sex.
However, this decision was appealed by extremist Hindu, Muslim and Christian groups, so that in 2013, the Supreme Court restored the law. At that time, the court stated that Parliament, and not the Delhi High Court, should take up the issue.
In its judgment that year, the Supreme Court justified the ruling by writing that only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders.”
In 2016, five gay and lesbian Indians submitted a writ petition challenging Section 377 on the basis that it violated their rights to equality and liberty, among other infractions, under India’s Constitution.
This time around, the court sided with what’s right.
According to Chief Justice Dipak Misra, the law, known as Section 377, was “irrational, indefensible and manifestly arbitrary.”
“Consensual sex between adults in private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles,” the Supreme Court stated.
The five-judge Constitution bench – which comprised of Chief Justice of India Dipak Misra and Justices R.F. Norman, A.M. Khanwilkar, D.Y. Chandrachud and Indy Malhotra – was unanimous in its decision.
In a statement, Peter Tatchell, director of the Peter Tatchell Foundation, said that “this historic legal ruling sets free from criminalization almost one fifth of the world’s LGBT+ people. It is the biggest, most impactful gay law reform in human history. I hope it will inspire and empower similar legal challenges in many of the 70 countries that still outlaw same-sex relations, 35 of which are member states of the Commonwealth. Ending the ban on homosexuality is just a start. There are still huge challenges to end the stigma, discrimination and hate crime that LGBTs suffer in India. Indian LGBTs now revert to the legal status of non-criminalization that existed prior to the British colonizers imposing the homophobic section 377 of the criminal code in the nineteenth century.”
