India’s Supreme Court judges ruled unanimously to decriminalize consensual “homosexual sex” Sept. 6, conceding in their judgment that the law had been used to discriminate against members of the LGBT community.
“History owes an apology to members of the community for the delay in ensuring their rights,” judge Indu Malhotra said.
The criminalization of homosexuality in India stems from Section 377 of the Indian Penal Code. This law was introduced in 1861 when the country was under British rule and serves to criminalize sexual acts “against the order of nature.” While the court found the application of Section 377 to consensual same-sex relationships unconstitutional, it will still be enforced against sex with minors, nonconsensual acts and bestiality.
Many Indian citizens are socially conservative. Arranged marriages with the right families of the right caste are still a huge part of modern society in India. Loved ones who break these social norms are often shunned by their families and persecuted by the greater community.
When news of the ruling hit the media, many conservative Christian, Muslim and Hindu coalitions were quick to voice their dismay.
2018 is not the first time that Section 377 has been found unconstitutional. The Delhi High Court struck down the section with respect to gay sex in 2009. This judgement was appealed by Hindu, Muslim and Christian groups four years later and ultimately overturned by the Supreme Court of India.
Over the years, various organizations have voiced concerns about Section 377’s human right violations. Human Rights Watch found that the law had been used to harass HIV/AIDS prevention efforts, sex workers and members of the LGBT community. The United Nations said the criminalization of private sexual conduct violated rights to privacy and to non-discrimination as outlined in the International Covenant on Civil and Political Rights. India is among the dozens of countries that have ratified this declaration of international law.
People around the world rejoiced at India’s decision to protect each citizen’s sexual orientation as a constitutional right. Google India celebrated the win for the LGBT community by putting a rainbow flag on its homepage, while Facebook switched its display picture to a colorful icon. Film director Karan Johar took to Twitter to post a picture of the pride flag with “Finally!” written across it in bold text. Elton John and David Furnish of the Elton John AIDS Foundation co-wrote an editorial piece in the Times of India, congratulating India on this “historic and joyous occasion.”
Journalist Anna M.M. Vetticad thanked the activists who have worked tirelessly to make this win a reality.
“You have saved India from the shame of being one of the remaining countries in the world that criminalized homosexuality—thank you for that,” Vetticad said.
According to the 2017 report from the International Lesbian, Gay, Bisexual, Trans and Intersex Association, same-sex relationships are still criminalized in 71 countries and territories. Most of them are in the Middle East, Africa and other parts of south Asia. In eight of these nations, homosexuality can still result in the death penalty. There is hope that if India was able overturn a law crafted by British colonizers over 150 years ago, similar victories are in store for other countries in the region.
Members of the LGBT community in India understand that it will take time before attitudes shift and the community experiences full acceptance.
For now, the ruling has restored a sense of dignity that had been denied for a very long time.
