India Finally Decriminalizes Homosexuality

India’s Supreme Court ruled on Thursday, September 6, that private consensual acts between same-gender people is not illegal, repealing the country’s colonial-era ban on homosexuality.

Calling Section 377 of the Indian Penal Code “indefensible”, the Indian Supreme Court unanimously ruled that the law could no longer stand. Chief Justice Dipak Misra is quoted  as saying that the law is ”irrational, indefensible and manifestly arbitrary.”

The court could have simply stopped at saying the law is no longer in step with the Indian legal landscape. However, the court chose to make a statement on precisely why Section 377 is now indefensible, with the Chief Justice saying “Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today, and it is only when each and every individual is liberated from the shackles of such bondage … that we can call ourselves a truly free society.”

The ruling establishes that gay Indians must be given the same basic freedoms accorded others under the Indian constitution. It’s a major win for LGBT rights groups in the country, and it is one that has come from a long and hard fight.

A Long Road to Decriminalization

India inherited its ban on gay sex thanks to once being part of the British empire. However, after the empire collapsed India did what many similar Commonwealth nations did and retained or transcribed many of those colonial-era provisions into the laws of its now independent nation.

This meant that India retained its gay ban, even after Britain had (albeit relatively recently) decriminalized homosexuality.

India has looked poised to decriminalize homosexuality before. In 2009 a case before the Delhi High Court resulted in the Court ruling that a ban on consensual gay sex violates the constitution. Technically, this didn’t legalize homosexuality throughout India, but the Delhi High Court’s standing meant that the case could be cited throughout India’s territories to at least create a legal basis for judicial action against discrimination.

However, that was to be short lived. In 2013, and much to the shock of LGBT rights campaigners, the Indian Supreme Court overruled the Delhi High Court  and said that because only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” it was legally unjustifiable to repeal the clause.

Since that time there have been several attempts to force the government to act to legalize same-gender consensual relationships, but India’s conservative and religious groups have been able to exert enough pressure to make that unworkable.

As a result, getting a re-hearing by the Supreme Court appeared the only way forward, but the question was how?

Then, in 2017 the Supreme Court ruled on a case with major implications for LGBT people. In a ruling surrounding the right to privacy the Court appeared to reverse course on its earlier decision and said that sexual orientation must be afforded what it deemed the “essential right” to privacy. This created a path forward for LGBT rights groups who could now argue that Section 377 was an unjustifiable attack on that essential right. On that basis, the Supreme Court agreed in January of this year that it would review Section 377.

As a result, the Supreme Court was able to reverse that previous order and set right an historic wrong perpetuated against LGBT people in India.

“The Supreme Court decision means that at long last same-sex relations are no longer a criminal offense in India,” Meenakshi Ganguly, South Asia director at Human Rights Watch, is quoted as saying. “The court has affirmed that no one should be discriminated against for whom they love or what they do in the privacy of their bedroom.”

Of course, there is a difference between a Supreme Court ruling and what actually manifests in day to day life, so it would be wrong to think that this will end anti-gay discrimination in India. What it does do, however, is give LGBT Indian’s the security that if they are discriminated against, the law is on their side.

Human Rights Watch has the following video of the celebrations that occurred following the announcement of this ruling. The video also touches on the fact that India’s victory may provide a landmark for other former British-controlled nations to fight back against their own anti-gay laws:

Take Action!

India has now managed to overturn its anti-gay law. However, many formerly-British ruled nations in the Commonwealth still have their anti-homosexuality laws, and these bans are used to punish LGBT people with long prison sentences and social stigma. This has to end.

Sign our Care2 petition and demand that the Commonwealth take immediate action to follow India’s lead and end their bans on homosexuality.

And if you have an issue you care about, why not start a Care2 petition. It’s really easy, and the Care2 community has all kinds of resources to help you raise your voice about the things you care about.

 

Photo credit: Thinkstock.

31 comments

Crystal Owen
Crystal Owen1 months ago

This is amazing! No one should ever have to hide who they truly are in fear of being beaten to death or locked up and tortured by their Governement.

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Janis K
Janis K1 months ago

Thanks for sharing.

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Paulo R
Paulo Reeson2 months ago

finally all love is allowed.

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Leo Custer
Leo Custer2 months ago

Thank you for posting!

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silja salonen
silja salonen2 months ago

Brilliant !!!

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Angeles Madrazo
Angeles M2 months ago

Great beginning! Thank you

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Alea C
Alea C2 months ago

Meanwhile back in the US, republicans are trying to put a religious fanatic on the Supreme Court bench who will destroy the few advances gays have made here.

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Melania P
Melania Padilla2 months ago

A good step in the right direction!

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Loredana V
Loredana V2 months ago

Homosexuality is not a crime, thanks for sharing!

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BumbleBrie B
BumbleBrie B2 months ago

Thanks for the highlight!

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