Judges Hint That India’s Supreme Court Will Strike Down Gay Sex Ban

India’s Supreme Court signaled its intention this week to strike down its colonial ban on gay sex.

As the nation’s highest bench deliberates over an 150-year-old law classifying sodomy as an “unnatural offence … against the order of nature,” Supreme Court Justice Indu Malhotra claimed that homosexuality is not “an aberration, but a variation.” She added that stigma against same-sex relationships can cause “mental trauma” for India’s LGBTQ community.

“Because of family pressures and societal pressures, they are forced to marry the opposite sex,” Malhotra claimed, in remarks first reported by Reuters.

Her Supreme Court colleague, Justice Dipak Misra, said that the “criminality attached” to homosexual intercourse casts a shadow over the lives of LGBTQ individuals. Thus, Misra told members of the media that the court intends “to rule, subject to arguments, that two consenting adults even if engaged in ‘unnatural sex’ will not be liable for prosecution.”

Homosexuality has been outlawed in India since 1860 as a legacy of British rule. Per Section 377 of India’s penal code, a conviction for homosexuality is punishable by up to 10 years in prison.

The Delhi High Court became the first court to rule against the sodomy ban in 2009, ushering in the decriminalization of homosexuality nationwide. That victory, though, was short lived: Four years later the Supreme Court overturned the decision, claiming that laws penalizing same-sex intercourse did not violate the privacy rights of LGBTQ citizens.

The court also alleged that striking down the historical ban on sodomy was unnecessary since there are so few convictions under Section 377, but that’s not entirely accurate. There were a reported 2,187 violations of the law in 2016.

Aris Jafer, one of the petitioners seeking to overturn the colonial law, spent 50 days behind bars under Section 377 in 2001.

India’s Supreme Court agreed to hear petitions challenging its own ruling in 2016 and in the two years since has demonstrated a slow evolution on LGBTQ rights. Last year the five-member bench ruled that privacy rights are guaranteed by the country’s constitution, which includes the privacy of gay, lesbian, and bisexual people.

“Sexual orientation is an essential attribute of privacy,” the court said. “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual,” the court claimed.

Should the Indian high court overturn the prohibition on sodomy, former Attorney General Mukul Rohatgi claimed the “ramifications of this case” will have wide-reaching effects in the world’s second most-populous nation. He told the court Section 377’s repeal would “have an impact on how society looks at these people–about perception, about livelihood, and jobs.”

In a Times of India poll from this year, the newspaper found that attitudes about LGBTQ people are already changing. A decisive majority (50 percent) felt homosexuality should be decriminalized, while just 31 percent disagreed.

Regardless of what India’s Supreme Court decides on Section 377, human rights advocates have a great deal of work left ahead of them to ensure equal treatment for LGBTQ people. Thirty-seven of the 53 Commonwealth nations formerly colonized by the United Kingdom still have laws on the books banning same-sex relationships.

Earlier this year, British Prime Minister Theresa May said she “deeply regrets” Britain’s role in pushing colonial sodomy bans and called for the laws to be struck down.


Nico Lang

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

in case you missed it