India’s Supreme Court Will Reconsider the Nation’s Gay Ban

India’s Supreme Court has announced it will once again review Section 377 of the penal code that bans same-gender relationships, but will this finally spell the end for this colonial-era law?

The decision comes after LGBT rights campaigners petitioned the court to reexamine the issue, claiming that the ban breaches their fundamental rights.

The Independent reports that, in referring to Section 377 for judicial review, one of the justices remarked:

A section of people or individuals who exercise their choice should never remain in a state of fear. Choice can’t be allowed to cross boundaries of law, but confines of law can’t trample or curtail the inherent right embedded in an individual under article 21 of [the] constitution.

The ban, which prohibits “carnal intercourse against the order of nature with any man, woman or animal,” prescribes a life sentence for people caught violating the law. While technically not mentioning same-gender conduct, India has interpreted the law to ban same-gender relationships, as well as any non-procreative sexual contact.

In the past few decades, convictions under the law have been rare, but in practice the law is used to justify discrimination against LGBT people and furthers the taboo around same-gender relationships, third gender identity and non-heterosexual families.

The court last visited the specific issue of Section 377 in 2013 when, to great surprise and dismay, it ruled to reinstate the law and shunted all further responsibility for getting rid of the colonial-era ban. Lawmakers, however, refused to act, and LGBT people have labored under its renewed shadow ever since.

But there is cause to be optimistic about this latest review.

In August of last year, the Supreme Court issued a major LGBT rights ruling as part of a wider decision on the right to privacy, declaring that same-gender sexual orientation is a fundamental concern of autonomy and individual identity.

In that ruling, the justices stated:

Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform.

While this didn’t directly strike down Section 377, LGBT rights advocates said that it would take extraordinary legal arguments to maintain the ban given that the far reach of this ruling. And this has now set the stage for the latest challenge.

“I’m in high spirits,” Anand Grover, a lawyer behind this legal suit, stated. “I always look at things in a positive manner and this is more than positive.”

Indian attitudes towards the LGBT community are diverse — and that’s perhaps not that surprising given the size of India’s population. In big cities, LGBT people and third gender people may be given a degree of tolerance. At the very least, a certain “Don’t Ask, Don’t Tell” attitude exists. However, being openly LGBT still carries with it a high degree of taboo, and that becomes particularly strong in more rural areas.

At the same time, the stories of violence and active discrimination perpetrated against LGBT people throughout India cannot be ignored. And while public opinion may have shifted in recent years, an attitude remains that it is okay to punish those who step outside of heterosexual and gender binary lines.

A repeal of Section 377 may primarily benefit LGBT people by serving to officially state that discrimination against LGBTs is not sanctioned by the country’s laws — indeed that the right to privacy and autonomy means that LGBT people must be respected. Repeals of sodomy bans in other countries have produced the kind of soft power necessary to create room for nondiscrimination protections — something that is desperately needed particularly among third gender people.

Let’s hope that this time, India’s Supreme Court can do the right thing and finally overturn Section 377.

Photo Credit: Yannis Papanastasopoulos/Unsplash

44 comments

Marie W
Marie W2 months ago

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Lesa DiIorio
Lesa D6 months ago

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Greta H
Past Member 7 months ago

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Jerome S
Jerome S7 months ago

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Jerome S
Jerome S7 months ago

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Jim V
Jim Ven7 months ago

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Jim V
Jim Ven7 months ago

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Janis K
Janis K8 months ago

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Olivia H
Past Member 8 months ago

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Leo C
Leo Custer8 months ago

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