India’s Supreme Court has struck down a colonial-era law criminalizing consensual gay sex, overturning more than 150 years of anti-LGBT legislation.
The landmark decision Thursday by five Supreme Court judges to repeal the law and legalize gay sex between consenting adults comes as a major victory for India’s LGBT activists and supporters after years of determined struggle.
Section 377, an archaic law imposed during British rule that penalized intercourse “against the order of nature,” had carried a maximum sentence of life imprisonment.
For the lawyers representing more than a dozen gay and lesbian Indians who petitioned the court, the legal acceptance of same sex relations finally signals an end to the harassment and persecution of the LGBT community.
Though the law was rarely enforced in full, it helped create a culture of fear and repression within the LGBT community, said campaigners. A change in legislation “creates a space of freedom where you can start expecting justice,” Danish Sheikh, a law professor at Jindal Global Law School and LGBT advocate, told CNN.
Long battle
Thursday’s historic ruling is the culmination of a lengthy legal battle for equality in a country where homosexuality is often not understood or accepted.
In 2009, the Delhi High Court ruled that the ban on consensual gay sex violated the fundamental rights of a citizen. Though the decision technically only applied to the Delhi region, it was quickly overruled by the Supreme Court in 2013, following a petition launched by a loose coalition of Christian, Hindu and Muslim groups.
In its ruling, the Supreme Court said only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” and it was therefore “legally unsustainable.”
During the the latest hearings, lawyers questioned the constitutional basis of that earlier ruling.
“It was a wrong judgment. It was not legal and it was based wrongly on the tenets of the constitution,” said Colin Gonsalves, one of the lawyers representing the the current group of petitioners, in July.
That case was strengthened last year, when the Supreme Court moved to uphold the constitutional right to privacy, including for the LGBT community.
The landmark ruling, which declared sexual orientation to be an essential attribute of privacy and that discrimination against an individual on the basis of sexual orientation was unlawful, has galvanized campaigners.
“Last year’s ruling eviscerated the 2013 judgment,” said Gonsalves. “There is no issue now. There is not much left to argue,” he added.
Opponents of moves to overturn the law rested on religious and moral objections. In an interview earlier this year, lawmaker Subramanian Swamy, a prominent member of the ruling Bharatiya Janata Party (BJP), described the legalization of gay sex as a “danger to national security” and “against Hindutva.”
Hinduism has traditionally maintained a flexible, non-prescriptive view of sexuality. However, in recent years hardline Hindu groups have taken a more conservative approach.
