India’s top court on September 6, 2018 overturned a 157-year-old law criminalising gay sex in a landmark victory for gay rights in the world’s largest democracy.    

A panel of five judges issued a unanimous judgment striking down the provision and affirming the right to equality and dignity.

“Respect for individual choice is the essence of liberty,” Dipak Misra, India’s chief justice, told a packed courtroom. “This freedom can only be fulfilled when each of us realises that the LGBT community possesses equal rights.”

India’s Supreme Court decriminalises gay sex in historic ruling

Activists have struggled for more than a decade to invalidate Section 377 of the Indian penal code, a provision that dates to the colonial era. The law prohibited consensual “carnal intercourse against the order of nature.” 

While the statute was rarely used as a basis for prosecution, its presence meant that gay people faced threats, harassment and blackmail. It also served as a constant reminder to the gay community that the state considered their sexuality illegal.

The ruling sparked jubilation among members of the LGBT community. News channels showed people in cities across India weeping and embracing as they celebrated the historic decision.

“It is a great day for India,” said Balachandran Ramaiah, an investment banker in Mumbai and one of the many plaintiffs who challenged the law. “People are going to dance through the night.”

The ruling is also a boost for gay rights around the globe. India was the most populous country in the world that still had a law on the books criminalising gay sex. As of last year, more than 70 countries had such laws, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association.

In court, the judges acknowledged the long injustice of the provision. “It is difficult to right the wrong of history, but we can certainly set the course for the future,” said Justice Dhananjaya Chandrachud.

Section 377 served as a pretext for extortion and continued prejudice, said Harish Iyer, a gay rights activist in Mumbai. The ruling “is a landmark judgment for democracy as a whole,” he said. “People cannot be diminished, and their identities cannot be disregarded because they are few in number.”

The judgment reflects rapid social change in India, where only five years ago the top court upheld the same law. Since then, campaigners have mobilised a movement to spread awareness about gay rights. In recent years, more than 30 Indian cities have held their first gay pride parades, and public protests against Section 377 have spread across the country. 

Economic and technological changes have spurred shifts in thinking, too. Cheap smartphones and mobile data opened young Indians to global trends and dating apps, while the mushrooming of India’s information technology sector has created a richer — and freer — generation of urban youth. Film, theatre and pop culture show openly gay characters and, in some cases, challenge gay stereotypes.

Still, conservative attitudes toward homosexuality persist. Many LGBT Indians avoid coming out to their families, fearing ostracism and mockery. Some have reported being forced to undergo rituals and therapies that claim to “cure” homosexuality. “I can’t find the words to express my happiness,” Anjali Gopalan, founder of the Naz Foundation, a non-governmental organisation that began mounting a challenge to Section 377 in 2001, said in the courtroom, just minutes after the verdict. “It’s been an unbelievable journey. I can’t believe this day came in my lifetime.”

The Supreme Court decision was expected to be celebrated across India. Activists pledged that the ruling was just the beginning, vowing to continue to seek legal protection from violence and abuse and to seek the right to marry and adopt children.

The September 6 ruling came after the Supreme Court declared a constitutional right to privacy in an unrelated case, opening the door for judges to reinterpret Section 377.

Cheap smartphones and mobile data opened young Indians to global trends and dating apps, while the mushrooming of India’s information technology sector has created a richer — and freer — generation of urban youth.

Over the summer, the court heard six petitions — including from a group of graduates of India’s top universities, who argued that criminalising gay sex had a negative economic impact, and from a group of parents of LGBT individuals, who argued that their children deserved protection, not persecution, from the law. 

Ahead of the judgment, campaigners and activists were optimistic. Judges had expressed empathy for LGBT people during earlier hearings and had even narrated the story of Alan Turing, who created a machine to crack encrypted German messages during World War II and was then chemically castrated because of his sexuality. 

Judges in India have gone back and forth on Section 377. In 2009, Delhi’s High Court struck down the law. 

Four years later, a Hindu astrologer named Suresh Kumar Koushal teamed up with Christian and Muslim religious organisations and challenged the order in the Supreme Court, arguing that homosexuality was immoral and could even threaten national security. A two-judge bench at the time recriminalised homosexuality. That judgment stood until September 6.

By arrangement with The Washington Post

Published in Dawn, EOS, September 16th, 2018