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India Supreme Court Decriminalizes Homosexuality

The decision reverses a law that's been used to persecute the country's LGBTQ community for over 150 years.

Marilyn Drew Necci | September 6, 2018

In a ruling widely hailed as historic, India’s Supreme Court ruled Thursday that a 19th century Indian law that banned sex that was “against the order of nature” was unconstitutional, as it constituted discrimination based on sexual orientation.

“Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary,” wrote Chief Justice Dipak Misra in his ruling. “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 was the result of a legal petition filed by five members of India’s LGBTQ community. One of those five Indians, Ritu Dalmia, told the Guardian Thursday, that “I was turning into a cynical human being with very little belief in the system, but honestly, this has really shown once again that we are a functional democracy where freedom of choice, speech and rights still exist.”

A crowd of LGBTQ people had gathered outside the courthouse while awaiting news of the ruling. For India’s LGBTQ community — one of the world’s largest — this was great news, and they greeted the ruling with applause and celebration. “It’s a positive,” Smitri, a 19 year old member of the crowd outside the court, told The Guardian. “There’s so much work to be done, but it’s a great first step. We’re not criminals in our own country.”

The legal history of homosexuality in India has been fraught with struggle, especially in the last few decades. Cases in 1994 and 2001 both failed to change the law. In 2009, the Delhi High Court (one of 24 high courts one level below the Supreme Court in India’s legal system) ruled in 2009 that section 377 of the Indian penal code, which barred “carnal intercourse against the order of nature,” was unconstitutional, but the Supreme Court ruled in 2013 that since the law had been enforced less than 200 times over its history, and applied to a “minuscule fraction” of the population, it didn’t really violate the constitutional rights of India’s people.

So what changed? Apparently, a 2017 decision on the legal right to privacy was enough to cause a shift in interpretation. “In August 2017, the supreme court held there was a fundamental right to privacy, and as part of that, five judges said the 2013 decision was wrong,” Delhi lawyer and legal scholar Gautam Bhatia told The Guardian. “It was unprecedented. The judges commented on a completely unconnected case to say it was wrong. But once they said it, with the imprimatur of a full bench behind it, section 377 was gone, implicitly if not formally.”

While the fact that the law has been reinstated after being overturned once before is certainly cause for concern, Indian LGBTQ activists are celebrating today. However, this ruling is far from the end of their struggle. From marriage equality to basic acceptance by India’s society as a whole, LGBTQ people in India still have quite a few more battles to fight. “We cannot rest on our laurels,” said prominent Indian LGBTQ activist Harish Iyer, speaking to Time. “When love comes out of the closet, hate shall too raise its hood.”

Photo: Gay Pride March in Bangalore, 2013. By Nick Johnson from Princeton, NJ – CC BY 2.0, via Wikimedia