India's Supreme Court strikes down law against homosexuality

Ruling ends decades of legal battle against British-era Section 377 of penal code

People celebrate the Indian Supreme Court's decision to strike down a colonial-era ban on gay sex on September 6, 2018. AFP

India’s Supreme Court on Thursday struck down a British-era law against homosexuality, handing gay rights campaigners a victory after several rounds of legal defeats.

Section 377 of the Indian Penal Code, dating back to 1861, criminalised sexual activity “against the order of nature”, and prescribed a maximum punishment of life imprisonment.

The law was “irrational, indefensible and manifestly arbitrary”, said Chief Justice Dipak Misra, who led a five-judge bench that heard six petitions against Section 377.

Comparatively few people are tried under the law. In 2015, the last year for which statistics are available, 1,491 people were arrested for Section 377 offences. But the law was frequently used to harass and blackmail gay people, and it has caused deep psychological distress to Indians who have been unable to come out, said Menaka Guruswamy, one of the lawyers who argued against Section 377 in court.

Activists have been seeking judicial intervention against the law since 1994, when the first petition was filed by a non-profit. After that failed to produce the desired ruling, another non-profit named the Naz Foundation, which works on HIV issues, introduced a fresh petition in 2001.

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Read more: Ban on homosexual acts ‘drags India into 19th century’

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In 2009, the Delhi High Court ruled in the Naz Foundation’s favour, arguing that Section 377 was not applicable to relations between consenting adults. But an appeal from a number of religious bodies saw the Supreme Court overturn that ruling in 2013.

At the time, the verdict argued that Section 377 did not need to be struck down because “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”.

The first of a new batch of petitions was filed in 2016, and hearings began in July. This time, Ms Guruswamy said, the petitioners were not non-profits but gay Indians who came together to plead that Section 377 was shackling their freedoms. “That made a real difference,” she said.

“All of them spoke of mental health issues, or depression, or lost relationships, or sadness because of a lack of familial acceptance,” she said. “This is what a lack of a full identity as defined by the constitution has done to gay Indians.”

The Indian government, which was a counterparty to the petition, did not defend Section 377, saying instead that it would leave its future up to the wisdom of the court.

Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP) has sent mixed signals about Section 377 in the past, with some members of its cabinet previously calling homosexuality immoral and others insisting that it should not be termed a crime.

But the government itself did not repeal the law, which was within its power given the BJP’s dominance of the legislature.

With this ruling, the court was confirming the right of gay Indians “to live with dignity”, Rohinton Nariman, one of the five justices who heard the petitions, said in his ruling. The government “should take all measures to broadcast it … to reduce and eliminate stigma.”