Dear reader, online ads enable us to deliver the journalism you value. Please support us by taking a moment to
Indian Supreme Court decriminalises homosexuality in landmark verdict
The Indian Supreme Court (SC) on Thursday in a landmark judgement legalised consensual sexual relations between adults of the same gender, partially striking down a British-era law that criminalised homosexuality.
A five-judge SC Constitution bench led by Chief Justice of India (CJI) Dipak Misra and comprising Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra delivered its unanimous verdict in four separate opinions, Indian media reported.
In the combined judgement, CJI Misra and Justice Khanwilkar said that the law would not apply to consensual same sex acts between homosexuals, heterosexuals, lesbians and other sexual minorities, but would apply to bestiality and non-consensual sexual acts, The Hindu reported.
Homosexuality was criminalised in India under Section 377 of the Indian Penal Code ─ a relic enacted by British rulers in 1861, which had described same sex acts as "carnal intercourse against the order of nature" and allowed for jail terms of up to 10 years, although prosecutions remained rare.
Section 377: Unnatural offences: 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 10 years, and shall also be liable to fine.
Activists had been fighting the ban since the 1990s, suffering several court reverses before Thursday's verdict which sparked celebrations among lesbian, gay, bisexual and transgender groups (LGBT) across India.
In 2009 the Delhi High Court effectively decriminalised homosexuality, saying a ban violated fundamental rights, but the Supreme Court reinstated it in 2013 after religious groups successfully appealed, saying that the high court had overstepped its authority and that the responsibility for changing the law rested with lawmakers not the courts. Efforts to introduce legislation, however, came to nothing.
But in January this year, the Supreme Court agreed to hear a challenge by a clutch of high-profile Indians who said the law created an atmosphere of fear and intimidation in the world's largest democracy.
CJI Misra, while reading out the judgement, said: "Any consensual sexual relationship between two consenting adults ─ homosexuals, heterosexuals or lesbians ─ cannot be said to be unconstitutional," India Today reported.
Justice Nariman pointed out that India's Mental Healthcare Act had recognised that homosexuality is not a mental disorder and ordered the government to work towards eradicating the stigma surrounding sexual minorities, The Hindu report added.
Justice Indu Malhotra said that history in her opinion owes the LGBT community an apology for discrimination and ostracism, while Justice D.Y. Chandrachud said he believes that the LGBT community is entitled to equal citizenship and equal rights under the Constitution, India Today reported.
Justice Chandrachud, according to The Hindu, questioned the meaning of the phrase "order of nature" in Section 377 and said: "[The] State cannot decide the boundaries between what is permissible or not. Section 377 is based on deep-rooted gender stereotypes. It persecutes people. It is a majoritarian impulse to subjugate a sexual minority to live in silence," adding that decriminalisation of homosexuality is only the first step.
The judgement also pronounced discrimination on the basis of sexual orientation a violation of freedom of expression, the India Today report said.
"Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression," the court said.
CJI Mishra observed: "No one can escape from their individualism. Society is now better for individualism," according to the India Today report. "I am what I am. So take me as I am. No one can escape from their individuality."
Members of the LGBT community hugged each other and cried as news of the verdict spread.
"I am speechless! It's taken a long time to come but finally I can say I am free and I have equal rights as others," said Rama Vij, a college student who wore a rainbow scarf.
"Today is a day of gay pride, a day of celebration, a day when respect and dignity was finally restored in India for lesbian, gay, bisexual, transgender and intersex people," said Michel Sidib, executive director of UN AIDS.
"I applaud the brave activists, civil society organisations and community groups that have fought long and hard for this injustice to be reversed."
Same sex relations have long been taboo in India ─ particularly in rural areas where homophobia is widespread.
"It was a law that propagated homophobia," said Keshav Suri, one of the petitioners against Section 377, who organised a Bollywood-style dance show at his family's luxury Delhi hotel to celebrate the court victory.
"In rural areas it is a harassment tool, used by cops, used by authorities for extortion," Suri told AFP in an interview ahead of the verdict.
Many Indian gay professionals have moved to Canada and Europe where they are more accepted, added the businessman who married his partner in Paris this year.
India is now one of more than 120 countries to have effectively decriminalised homosexuality.
While the court ruling only legalises sexual acts between adults, gay activists have hailed the verdict as a major boost as religious groups have fiercely opposed any liberalisation of sexual morality.
India's conservative government had opposed ending Section 377 but said ahead of the hearing that it would leave the decision to the "wisdom" of the Supreme Court.
It had warned, however, that judges should not change other aspects of Indian law, such as the right to marriage.
Comments (137) Closed
Wonderful news!
good move
That is a positive move towards a successful democracy.
India is changing. Good decision by Hon. SC. All must have the right to live with dignity.
Indeed a very progressive move- in line with the changing world- setting an example for the rest of the world to follow.
India is a part of the global village !
Progressive ruling!
Out of the closet into the modern era. Great.
wind of change in south asia !
India leads the way ! But will others follow ?
Finally millions will breathe an air of freedom for being who they really are... Proud of SC's decisions and many congratulations to the LGBT community.
congrats to my Indian friends. this is a major development in south asia.
This is still against laws of nature... Individualism is appreciated...but not when living in societies
I wonder what the hindu scriptures say about it.
Couldn't be happier. The Chief Justice said "We have to bid adieu to prejudices and to empower all citizens". That one statement holds true for the whole world today.
This is a landmark judgement freeing individual sexuality.
@Rubina Broaden your horizon and perspective, Ma'am. There is a place for every person in this world.
@Seemab Khan homosexual is also natural. Homosexuality is not intentional . They are born with it and only came to know after they reach puberty.
Every modern person must support this.
In this era, we do not want either discriminate or get discriminated in the name of sex, cast, income, region, religion, color or creed.
@waheed Doesn't matter, India is secular republic not Hindu republic
@Seemab Khan what is natural?what is natural to you may be not natural for someone. Everyone has to accept people for what they are. No discrimination rest of Asia will follow.
@waheed don’t worry about our scriptures
Great Job India !
How can biology be criminal in the modern world ? What harm do the LGBT do to anyone simply by expressing their biological constitutions ?
Time for compassion for minorities, freedom from superstitions & justice for all ! Time to charge ahead !
@Rubina You embarrass us Pakistanis. I am siding with my Indian brothers here. To each their own, your argument is ignorant.
Wow. India is so far ahead of us. Great news!!
Nothing much to say, Have been a 20+ year struggle, but in the end, worth it
Our neighbor, Nepal had it legal since 2007.
A certification of fairer society.
@ash excellent answer! Humanity is paramount!
@Aggie2k13 - Yeah forget scriptures, its a happy day for LBGT Indians.
Now RSS will start a dharna
Great news
@waheed Doesn't matter. Humanity comes before every religion.
Wonderful , congratulations
@Rubina Start thinking out of box of religion.Every one has a right to live the way they want.
Pakistan should follow India. We need to be given the same rights in Pakistan.
This is an abominable decision,it may help in population control but it will ruin the established moral code of social life.
@Saima Shahzadi We must have freedom to sex with anybody whom we like
@Nida I agree with you 100 percent. It took India decades to follow the west to decriminalize homosexuality. Will we have to wait decades to follow India ? We need to have the same rights as the Indians have in India. I hate when our girls are forced to marry someone when they are not heterosexual.
It was over due for a population of 1.3 billion people. I hope pakistan should also become modern and pass a bill for LGBT in Pakistan
Good move. Now proposals will openly pour in for Modi and his cabinet.
@Seemab Khan here we go again what two consenting adults do is no one's business
What consenting adults do behind closed doors is their freedom of choice as long it is not on public display!
As an Indian I welcome this excellent judgement. We cannot discriminate against sexual orientation or criminalize it. Courts have earlier ruled that sex between two consenting adults not transgressing adultery laws, cannot be criminalized.
Though I am as Straight as a ruler, I Welcome the Decision Whole Heatedly...
@Priya No, it is just scientific twist given to facts. This has been unnatural and will remain unnatural, no matter how many verdicts come in it's favor.
How is this a landmark verdict?
Jai hind!
Hola
Now, this is called a mature and responsible country.
They (hindu scripture) are very liberal on this subject.. only British era rule abolished.
Much grateful to highlight the news. thanks.
Good Pakistan and take it as postive
Pakistan Supreme Court should also decriminalise homosexuality.
Very sad .
@waheed it accepted long bsck
I expected a lot of congratulatory messages from Peshawar and KPK.
Good decision
Accept the reality. Good move. A
@Seemab Khan Dawn really have saints as readers Can u sir define law of nature??
Wow! Indian supreme court rocks
@k k tiwari between consenting adults, yes. But that is all.
Now i can proudly say today I LOVE PAKISTAN......
@waheed The scriptures never had any issues. Completely accepted it in Hinduism. The British under the influence of the Church opposed it and brought the law.
This is not natural. I am not sure on which basis court legalized it. It would be interesting to go through the detailed judgment.
India’s SC has not delivered a judgement in line with the historical continuation of its cultural moorings , as the same is departure from the same. How the Ghanaian legacy is being shaped is impregnated with drift from its historical track. Brave new world ahead but anchorlesd culturally.
@waheed No offence But any scripture of any religion including yours and mine was made about a certain society which was prevailing a long time ago... These are modern times you live and die by new rules , you respect your culture and heritage but keep moving along.. as change is continuous..
@Nida homosexuality is not decriminalized in Pakistan but it is far more common and tolerated in Pakistan than most other countries in the east. I have not heard story of anyone going to jail for lynched for being homosexual in Pakistan.
The response shows that a lot of people were sitting on the fence, waiting to jump to fulfill their desires legally and to remain noble.
@Fahad Because it gives freedom to a small section of society that was victim of moral policing by those who weren’t even affected by this small section. Law should focus on ensuring public safety, not on private life of citizens.
@Shahryar Shirazi No. In the aftermath of the verdict RSS admitted that homosexuality cannot be considered a crime. Else they will have to explain all those sculptures at ancient temples of Khajuraho that depicted homosexual acts. But they stated an opposition to institutionalizing same sex marriages.
@Priya In my opinion it very much unnatural, both man and woman undoubtedly have their own distinct features. If taken from a religious or natures point of view.The creator must have had a purpose in mind for having created two separate genders, possessing physiologically different features and yet at the same time ensuring they complement each other in many ways, in their own useful and meaningful manner.
Yes you all
@waheed actually hindu scriptures do not criminalize or condemn homosexuality. This old law was based on Christian beliefs and introduced by the British.
Bad news..... Not happy
@waheed Hindu scriptures do not intervene in day to day life of peoples. The emphasis is upon uplifting ones soul to the level of supreme. Body is matter so does every other thing around. It does not differentiate between any creature.
@Seemab Khan I Agree
@waheed :
Citing Hindu scriptures to be against human rights of the LGBT community is not a valid argument in the 21st century. Religious life must reform towards tolerance to reflect societal realities in a progressive democracy.
Great decision. Will we follow?
@waheed They are not worried. They change, but do we?
@waheed Not everyone sees things through the prism of religion. The law is applicable to all citizens of India irrespective of which religious scriptures they may choose to follow. It’s called being progressive and we are trying not to be stuck in the past as best as we can. History has made us what we are and we need to adapt to modern times and look to the future for the betterment of our people. You can of course choose a different path - that is the beauty of democracy.
Proud of our forward thinking nation!
At the end of the day, India wants to foster scientific values in its society. However, it still has a long way to go. It still has to develop scientific temper about cows and its attitude towards minorities.
@waheed Beauty of Indian govt is that, religion and state is separated.
The white strip in Pakistan's flag should, in 2018, mean that Pakistan follows India's example here.
A real marker for social progress and social justice.
@M Taimur It would be on the basis of social justice and equality in opportunity and civil rights. Personal sexual orientation should remain a private matter and state law - which is there to protect persons from harm - should not become a means of oppression and bigotry.
@waheed Dont worry about that.
Indian Supreme Court says there is no compulsion in sexuality.Sexuality is not the business of the state, you can be gay, lesbian, heterosexual, transgender,you can marry anyone,this has nothing to do with the business of the state.
Supreme court has given the judgement that state will not interfere with your sexuality.
Indian laws are copy of western laws. What west does India follows, India follows secularism, culture etc. of the west. We Indians are updated to western way of thinking and doing. We ape the west in everything provided we find that its pro-humanity, progress, comfort and justice
@waheed we recognize that the scriptures are part of our culture and heritage and are meant to inspire and are not iron clad rules. So regardless of what the hindu scriptures say - what matters is whether the rules and laws of society reflect the modern realities and take into account each person's rights. Ultimately such a society stands to progress.
It's like sickness in natural culture, everyone is watching its comfort, no one is seeing the terrible results, SC has approved HIV, std/sti transmission factories.
Without plodding on anyone’s free will, I uphold my moral beliefs. Peace for all
@Priya Your Definition is true for biologically indeterminate gender at birth which is quite rare but not for sexual orientation in the social sense which has no strong biological correlate although many studies tried to investigate it.
An excellent decision by the Indian Supreme Court.
@Shahryar Shirazi if they do, we will send their party packing back into middle age.
@waheed nothing specifically.
@Troubled instead of criticizing Rubinaji lets educate her.
@baakhlaq who are you to decide the moral code of society. Our twisted sense of morality is driven by the oppressed society we live in. Real freedom is the freedom to choose ones own morals, without infringing upon the fundamental rights of others. Developed countries learnt it much earlier and set their priorities right, we laggards will be always laggards if we do not do so too. Proud of our Supreme Court!
Very progressive step
India (and Pakistan) are still not clear about what values should guide their systems.
Good ruling. People should respect the individuality of others.
@waheed This is not about religion. The law applies to everyone equally, irrespective of religion. What the scriptures say is not important. What common sense and humanity says is the key. Do remember that India is a secular country.
@Rubina Why is it unnatural? Because you don't have that inclination?
When will Pakistanis will that this matter to their Supreme Court?
@waheed Dreaded manu smriti acknowledges that there are people who are naturally attracted towards the same sex.1) It further states that such parents who have gay child do not abandon him/her so these people are directed to provide and educate such children.2.)Law was enacted to make sure society does not discriminate against them. Even world famous khajurao have depicted humans indulging in such behaviour. In short hinduism does not see homosexuality as a criminal offence.It rather sees ii natural occuring phenomenon as nature is not rigid but fluid.
Don't know why this is a big news. Even Indian media high lights as if a big event. West do not have any big news for their customers and we should stop aping them.
@waheed Religions evolve with time. What was written centuries back may or may not hold water in today's world. You know that is where the problem lies. Try and look beyond these scriptures and world would be a better place to dwell.
To those who are crying that this is against religion then let me make u aware that before the arrival of Abrahimic religion in India. Homosexuality, Transsexuality was prevalent openly .. eg...Khajuraho temple.. Shiva's Ardnari roop, Shikhandi of Mahabharata etc. Indians were openly minded from the very beginning. Unlike Abrahimic religions Hinduism do support transsexuality, homosexuality etc.
Indian Supreme Court’s judgement is a milestone achievement in terms of protection of civil liberties. No society is free until individual rights and freedom are guaranteed by the law. Congratulations to our brothers and sisters on the other side of the border.
Proud of this ruling.... Thank you Supreme Court.
@novice Really? Which ones. Please quote a credible source in your response.
@waheed the main hindu scriptures don't say anything one way or another.
Every individual has right to live his own life, Wonderful decision.
@M.Sethi : Who gets to decide what is natural and what is not ? There no fixed manual for nature. There may be anomalies in nature but they are also natural. As for the 'creator' part, that is all based on your particular belief. It makes no sense to a non-believer.
Supreme Court of India struck the right cord while delivering this verdict by bringing out the human element front and center. By talking about the precedence of Constitutional Morality over Social Morality or Majority Morality, they put the fundamental rights of an individual over everything else. The opinion of the CJI was a treat to read.
@Seemab Khan with respect, Homosexulity exists in the nature.
@Ibneadam Thank you Mr Expert! But, the world doesn't work as per your whims.
@Seemab Khan And a pluralistic society is consists of diverse individuals.The country should not have a role in individuals choices in life. When politics/government interferes individual choices/preferences/way of life then society collapses. Great example:- India partitioned into two countries. Pakistan was created for Muslims only. Because we put our personal preferences as the best and we don't value other individuals' choices. The judiciary/government must remain neutral and secular as much as possible.
Life is extremely colorful. Those colors of life are not like red, green, blue, etc. they are in millions and are around us. We see, feel and enjoy them. LGBTs are just different colors of live.
This simple social change in India could trigger economic growth beyond imagination??Economic development is not what we learn in 101 Econ. It is much more complicated and perhaps deep rooted in the social fabric of the society.
Proud of my country...
@Rubina you believe it is unnatural because it feels unnatural to those who are heterosexuals. Just the same way homosexual may find heterosexuality to be unnatural. Court verdicts are not based on naturalness of an act but based on the fact that in a democracy an individual should be free to act as they see fit until they don't harm anyone. To not allow that would mean state is impinging on the individual's freedom.
@Rubina agree 100%
I personally feel this is un-natural ... but who am I to judge. If a sizable section of society is practicing this life style, this should be accepted. Live and let live ...
@Touseef, well said. Your morality is for you to practice and nobody cares about it. But, good philosophy to not impose your morality on others. But, understand that sexuality has got nothing to do with morality, it's just biological. You do not get to choose to be heterosexual because that's moral to you. You are heterosexual because you've been internally wired like that.
Excellent progress. Maybe one day, freedom to love would also be law in Pakistan.
@Adnan Khan what's stopped you earlier???
Indian Supreme Court finally catching up with science.
@waheed you can wonder all you want. But India is a secular and democratic country and will always be.
@Asif A. Shah Well Said. Can any one reply to this???
I am a regular reader of dawn from India. I am surprised to see so many comments for and against the judgement. However, I would like to quote the comment from the judge himself when he was abt the morality aspect. He said and I quote "They made judgement on crime and not sin". How insightful? I think most people who are commenting here should understand what it really means. They would be a changed person. Also, it goea to show how this judgement was made with deep thoughts.
@M Taimur
this is 100% natural . Do Some study.
@Zahid Ali You need to get your mind out of the cave age
A Landmark judgement delivered by the Supreme Court.S.377 of the Indian Penal Code was the law made in 19th century.Supreme Court's ruling made the drastic changes in it. Good.
@Seemab Khan How do you know?
Someone asked - wonder what Hindu scriptures say about it.
Well, I don't know if there are any references to gay or lesbian relationship in Hindu scriptures. My educated guess is that the phenomena didn't exist back in the time, or wasn't common enough to find a place in the scriptures at the time of their writing.
@Jay Chan - Very correct...I am also in the same line...I personally don't lie it but who am I to decide about others?