India Overturns Colonial Anti-LGBT Law, Decriminalizing Homosexuality

PTI file

PTI file

At the forefront of many people's minds was how to translate the court's lofty language - "History owes an apology" to gay people, one justice said - into practical gains. Almost five years ago, the same court had ruled that gay sex was illegal.

He mentioned that the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.

A supporter of the lesbian, gay, bisexual and transgender (LGBT) community holds a placard as he celebrates after the Supreme Court's verdict of decriminalizing gay sex and revocation of the Section 377 law, during a march in Mumbai, India, September 6, 2018. Observing that the Constitution nurtured dissent as a "safety valve" of society, he said, "we cannot change the history but can pave a way for better future".

As legal experts pointed out, changing this colonial law was nearly a foregone conclusion after a nine-judge constitutional bench of the Supreme Court ruled in August 2017 that privacy is a fundamental right.

CJI Misra, while reading out the judgement, said: "Any consensual sexual relationship between two consenting adults ─ homosexuals, heterosexuals or lesbians ─ can not be said to be unconstitutional", India Today reported.

Noting that Section 377 rested on deep-rooted gender stereotypes, he said that "what 377 did essentially was to say that this is how a man should be and this is how a woman should be".

In its ruling, the court said sexual orientation was a "biological phenomenon" and that discrimination on that basis violated fundamental rights.




Activists hope the scrapping of the ban will uphold the right to equality but many acknowledged that discrimination would persist. And you experienced it with Section 377, which re-criminalized homosexuality after Delhi's High Court ruled the ban unconstitutional.

He wrote in his judgment about another breakthrough for LGBTQ rights that came from the Supreme Court of Nepal, in Sunil Babu Pant versus Nepal Government. It said the State can not persecute people and decide the boundaries between what is permissible or not, holding that Section 377 IPC was based on "deep-rooted stereotypes of the society" that was violative of fundamental rights to equality and life with dignity.

On Thursday, a leader of a prominent hard-line Hindu group noted that while it doesn't see homosexuality as a crime, it believes gay marriage is not "compatible with nature".

She also added that decriminalisation of section 377 shall not lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages. "The focus must now be on ensuring access to justice, including remedy; effective investigations of acts of violence and discrimination; and effective access to economic, social and cultural rights". "This [judgment] is going to increase awareness but this might also piss off people who are against us".

"We become equal citizens with the removal of Section 377". News channels showed people in cities across India weeping and embracing as they celebrated the historic decision.

In a 2009 judgment on a Public Interest Litigation (PIL) filed by Delhi-based non-government organization Naz Foundation, Justice A P Shah, the then chief justice of the Delhi high court, and Justice S Muralidhar had struck down Section 377. We will win each one of them. A two-judge bench at the time recriminalized homosexuality.

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