Landmark ruling decriminalises consensual gay sex in India

File photo showing an Indian supporter of the lesbian, gay, bisexual, transgender community taking part in a pride parade in Chennai.
File photo showing an Indian supporter of the lesbian, gay, bisexual, transgender community taking part in a pride parade in Chennai.PHOTO: AFP

India's Supreme Court yesterday ruled that homosexuality is not a crime in the world's largest democracy, in a move hailed as a significant step for individual rights.

"We have to bid adieu to prejudices and empower all citizens," the Supreme Court said in the landmark judgment.

Chief Justice Dipak Mishra, who led a five-member bench that struck down the law, said the lesbian, gay, bisexual and transgender (LGBT) community "has the same rights as that of any other ordinary citizen", adding: "Criminalising gay sex is irrational and indefensible."

Section 377 of the Indian Penal Code, which made consensual gay sex a crime, had a maximum jail sentence of 10 years and was enacted in 1861, when India was under British colonial rule.

Based on Victorian-era criminal law, the statute remains on the books in several former colonies, including Singapore and Malaysia.

England and Wales decriminalised gay sex in 1967, and Scotland in 1980. The law prohibited "carnal intercourse against the order of nature with any man, woman or animal", and was interpreted to include consensual gay sex, creating an atmosphere of fear in the community.

Only consensual gay sex was decriminalised by the Supreme Court.

Lawyers working on the case called it a historic moment. "It is a great victory. The whole of India needs to understand we are in a new freedom era," senior lawyer Anand Grover told reporters.

 
 

Ruling party and opposition politicians alike welcomed the decision. Bharatiya Janata Party spokesman Gaurav Bhatia said on Twitter: "An archaic 156-year-old Section 377 makes way for fundamental rights of the LGBT community. Proud of our Supreme Court."

The Congress Party said: "We welcome the progressive and decisive verdict from the Supreme Court, and hope this is the beginning of a more equal and inclusive society."

Members of the LGBT community in India routinely face discrimination and are often threatened with legal action, even though the law was rarely implemented.

The road to decriminalisation was not a straight one. Section 377 was first struck down in the Delhi High Court in 2009 on the grounds that it violated the fundamental rights of life and liberty and the right to equality guaranteed in the Constitution.

But the Supreme Court reinstated it four years later following an appeal by a loose coalition of Hindu, Muslim and Christian groups, saying the law "does not suffer from the vice of unconstitutionality".

Five high-profile petitioners then challenged the Supreme Court order in a petition, culminating in yesterday's judgment. People who had gathered to hear the decision cheered and hugged one another.

College student Kabir Taneja, 18, who described himself as transsexual, said: "This is going to reduce police harassment. It is no longer a legal threat."

His sentiment was echoed by Mr Bhuvan Kathuria, who held a sign saying "Love is gender free".

"It was long overdue. It was worth the wait. But the battle has just begun," he said of the judgment. "We have got legal acceptance. Next, we need to fight for social acceptance... This is a step in the right direction."

A version of this article appeared in the print edition of The Straits Times on September 07, 2018, with the headline 'Landmark ruling decriminalises consensual gay sex in India'. Print Edition | Subscribe