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Gay Sex Is Legal in India After Court Strikes Down Sodomy Law

It’s official: India has struck down its century-old law criminalizing gay sex.

In a historic verdict announced Thursday, a five-judge panel ruled Section 377 of the Indian Penal Code is unconstitutional. First enacted during British rule in the 1860s, the colonial codes outlaw “unnatural offenses… against the order of nature.”

All four opinions submitted to the court were concurring, showing unanimous agreement.

Justices concluded LGBTQ people are guaranteed equal treatment under the constitution and that anti-gay discrimination violates freedom of expression.

“Dignity, protecting one’s identity and one’s privacy are the important pillars of the constitution,” claimed Chief Justice Dipak Misra as the opinions were read aloud at 11:40 a.m. India Time, following multiple delays. “[…] We have to vanquish prejudice, embrace inclusion, and ensure equal rights.”

Chief Justice Misra further claimed sexual orientation is “one of many biological phenomena which are natural and inherent.”

Until this week, a criminal conviction for sodomy could result in life behind bars.

The constitution bench was first assembled by the Indian Supreme Court after it initially overturned an earlier ruling legalizing homosexuality. Although gay sex was effectively decriminalized by the Delhi High Court in 2009, the nation’s most powerful legal authority struck that decision down four years later.

In restoring Section 377, the Supreme Court claimed it was Parliament’s job to repeal the law, calling the LGBTQ community a “minuscule fraction of the country’s population.”

But deliberations from the constitution bench conflicted with many of the Supreme Court’s earlier conclusions. When defenders of Section 377 suggested that overturning the law would amount to legislating through the court system, judges claimed it is fully within their purview to strike down unconstitutional laws “the moment [they violate] fundamental rights.”

“The moment there is a finding that a provision violates the fundamental right of citizens, this court has power to strike it down irrespective of the majoritarian government’s power to repeal, amend or enact law,” said the bench headed by Chief Justice Misra.

Throughout the hearings, judges repeatedly signaled their sympathy for the cause of LGBTQ Indians. Justice Indu Malhotra attracted international attention when he claimed that homosexuality is a “variation, not an aberration.”

“It is not human beings alone who indulge in homosexual acts, many animals also show homosexual behavior,” he said during hearings on July 11. “This community feels inhibited to go for medical aid due to prejudices against them. Because of family pressures, [and] societal pressures… they are forced to marry [the] opposite sex and it leads… other mental trauma.”

Days later, Justice Rohinton Fali Nariman claimed “all prohibition” of consensual sexual activity is “wrong,” while Justice D.Y. Chandrachud accused supporters of Section 377 of wanting to make “sexual intercourse itself a crime.”

The challenge to India’s sodomy law was brought by more than two dozen petitioners, one of whom served more than 50 days in prison as a result of his conviction. Although supporters say Section 377 is rarely invoked, more than 2,187 cases of “unnatural offenses” were prosecuted in 2016.

As the New York Times previously reported, the law has also resulted in “blackmail, harassment, and sexual assault” against those targeted by authorities.

Prior to Thursday’s ruling, LGBTQ advocates claimed that striking down a policy which had long been used as a cover for persecution and discrimination “would be truly momentous from a human rights perspective.”

“Such a ruling would not only have impact in India,” said Frederick Rawski, Asia-Pacific director for the International Court of Justice, in a statement, “but would have transnational value, especially across other common law countries, and will provide an impetus to other countries to critically consider the lawfulness of similar provisions that criminalize consensual sexual relations, as being per se contrary to human rights.”

Many predict that striking down the world’s oldest sodomy ban could have a ripple effect across Asia — where same-sex intercourse is illegal in 45 percent of countries.

The effect on India, though, cannot be understated.

Despite the Supreme Court’s earlier claim that India’s LGBTQ community is infinitesimal, around 18 percent of the world’s queer and trans population calls the South Asian country home. Only China’s decriminalization of homosexuality in 1997 has impacted more LGBTQ people.

That India would finally catch up to China in overturning its sodomy ban was widely expected. An August 2017 ruling from its Supreme Court found that the “right to privacy” is enshrined in the country’s constitution.

Many claimed the verdict was a “de facto” repeal of Section 377.

Despite the groundbreaking court victory, the LGBTQ community will continue to face numerous challenges as they work toward full equality. Same-sex marriage and adoptions remain illegal, and queer and trans people may be ostracized from their families after coming out.

Image via Getty


Nico Lang

Nico Lang is a staff writer for INTO, covering news, politics, and global LGBTQ issues.

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