India Repeals Laws Criminalizing Homosexuality After 157 Years (Section 377)

The 6th of September 2018 will go down as a historical day in the calendars of the LGBTQIA+ community all across the country, which is the largest democracy in the world. On this day, the Supreme Court of India finally repealed parts of an outdated colonial-era law, under Section 377 of the Indian Penal Code, which criminalized homosexual intercourse.

What is Section 377?

The article and its regulations were incorporated into Indian law way back in 1861, during the British rule, and had effectively remained unchanged until earlier this year. If that doesn’t give you a fair idea of how much of an ancient relic this law was, it was modeled after on even older decree, the Buggery Act of 1533, passed by King Henry VIII. It essentially dealt with unnatural sexual offenses, stating that Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.Although this doesn’t particularly target individuals of the homosexual persuasion, it was largely used, due of its vagueness and lack of clarity, by the British Raj, as well as Modern Indian law to harass, persecute and torture gay men, who were the majority of people who had charges against them under this article, because apparently oral and anal sex were deemed to “go against the order of nature”, and therefore, punishable by law. Article 377 clubbed bestiality and consensual sex between two homosexual individuals together.

The law, naturally, has, for years, faced strong opposition from gay rights activists and allies alike. Although India is largely a conservative country, rapid development clubbed with exposure to Western media made its citizens realize the sheer absurdity of the law, and how oppressive and discriminatory it really is.

Section 377 is not exclusive to India. In fact, most former British Colonies, 42 to be exact have had, or still have, their own version of the law and only a handful of those nations have retracted their versions of the law.

The first time it received any attention was back in 2009, was the Delhi High court decided to declare parts of Section 377 that outlawed homosexual intercourse as unconstitutional. This enraged India’s conservative right wing, as well as several religious bodies, and as a result, this decision was then overturned by the Supreme Court bench comprised of Justices G S Singhvi and Sudhansu Jyoti Mukhopadhaya in 2013, in the Suresh Kumar Koushal vs. Naz Foundation case, basically reinstating the old discriminatory laws against the gay community, saying that it was the Parliament’s job to legislate on the issue and that the previous High Court decision “had overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders”, and that it is unsustainable to stick to the high court verdict.

The decision was definitely a blow to India’s gay community, who maintained that the ruling set the country back hundreds of years, and reflected a frame of mind that is no longer applicable to a modern context.       

Since that day, there has been a long drawn out battle to get the apex court to revisit their decision. Four years later, in August 2017, in a step toward progress for LGBTQIA+ activists, the Supreme Court, in a landmark judgment, made the Right to Privacy a fundamental right under the constitution. This decision has far-reaching effects, for the queer community especially, as sexual orientation was “an essential attribute to privacy” and that “discrimination against any individual on the basis of sexual orientation of an individual is deeply offensive to the dignity and self-worth of the individual.” Although Section 377 was still in effect at this point in time, this was seen as the step toward decriminalization, as well as reducing the discrimination based on one’s sexual preferences.

Earlier this year, a three-judge bench headed by CJI Dipak Misra declared that they would revisit the controversial 2013 apex court decision, as he believed that “the Suresh Kumar Kaushal’s case requires reconsideration” and that “societal morality also changes from age to age”.

This brings us to the 6th of September, where the Supreme Court unanimously voted to overturn the law, decriminalizing sex between consenting homosexual adults, the bench stating that the section is “violative of constitutional principles” and “irrational, indefensible and manifestable arbitrary.” CJI Dipak Misra, who led the bench that made this historical decision, stated that discrimination of any kind goes against the fundamentals of a democratic society. The bench extended an apology to India’s homosexual population, and maintain that they too must be allowed to live with dignity.

What does his mean for the LGBTQIA Community?

Striking down portions of Section 377 that outlawed homosexual sex is the first step in the right direction for gay men and women across the country. It also paves the way for the creation and implementation of other constitutional rights and legislative reforms that can be applied to same-sex couples that were unthinkable before the verdict – marriage, adoption, property rights, divorce, guardianship, etc, all of which will hopefully be tackled in the future.

Admittedly, homosexuality in India is considered to be, and will remain to be for the foreseeable future, in the eyes of many, a taboo, an illicit activity that goes against the laws of nature. We undoubtedly live in a heteronormative society, where the LGBTQIA+ community, being the minority, are marginalized. But the times are changing, albeit slowly.    Fortunately, laws do have the potential for shaping existing worldviews and norms, and the decision by the Supreme Court will unquestionably play a role in shaping the narrative in the minds of generations to come.

The Reaction

The reactions to the Supreme Court decision has been overwhelmingly positive. Several people, both gay and straight took to the streets to celebrate. Major mainstream news outlets, as well as big politicians, saw this decision as a monumental victory, not only for the queer community but for democracy itself. But gay rights can be an incredibly polarizing issue, and the voices aren’t all supportive. Several religious communities have already come out against the verdict. Muslim groups in the state of Kerala have already condemned the move, stating that homosexuality is a “sin” will “increase crimes”. Numerous citizens also hold the same belief, taking to social media and online news portals to express their disappointment, and to spew words of venomous hate towards a group of people who want nothing more than the right to love.

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