India’s Colonial-Era Ban On Homosexuality Is Repealed

Indian members and supporters of the lesbian community celebrate the Supreme Court decision to strike down a colonial-era ban on gay sex, in Kolkata on September 6, 2018. (Photo by Dibyangshu SARKAR / AFP) (Photo credit should read DIBYANGSHU SARKAR/AFP/Getty Images)

Today the Supreme Court of India repealed a colonial-era ban on homosexual sex. Section 377 of the Indian Penal Code made sexual behavior “against the order of nature” illegal and punishable by imprisonment and served as a model for similar laws across the British Colonial Empire, including those still in place in Singapore and Uganda.

Jessica Stern, Executive Director of OutRight Action International, an LGBT-focused human rights organization, comments,

“When you work on LGBTIQ rights at an international level, your work constantly leads you back to colonialism and the penal codes that were imposed globally as instruments of control and domination. The sodomy law that became the model everywhere from Uganda to Singapore to the UK itself premiered in India, becoming the confusing and dehumanizing standard replicated around the world. Today’s decision to strike down the 377 law once and for all is a triumph. It is the culmination of years of community organizing, changing social attitudes, strategic use of the courts, and an LGBITQ movement in India that refused to give up. The decision decriminalizes homosexuality in India and also affirms the rights to privacy and non-discrimination. Today’s historic outcome will reverberate across India and the world.”

This comes after decades of agitation. A movement to repeal 377 began in the early 90s, and not until July 2009 was homosexual sex decriminalized. However, the ruling was overturned by a 2-judge bench of the Supreme Court of India in December 2013, ruling that Section 377 was not unconstitutional.

Continuing the fight, a petition was filed by gay and lesbian rights activists who pushed for the ruling to be considered by a larger panel of judges. They also expanded the argument for repeal, arguing that the article violates one’s right to privacy. The right to privacy was recognized in a landmark 2017 Supreme Court judgment. This push led to a 5-judge bench review of the case, and the review was ultimately successful, with unanimous agreement to repeal.

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Arundhati Katju and Menaka Guruswamy are two of the lawyers who represented Navtej Johaand and the India Institute of Technology in the Supreme Court lawsuit. They filed a 716-page petition arguing that all Indians have a right to determine their sexuality as a component of their privacy, dignity, and equality. Guruswamy also argued the case in court.

Menaka Guruswamy, comments,

“This is a wide-ranging win for LGBT Indians across constitutional rights of equality, dignity, expression and freedom. It is a win for India as a constitutional democracy, and the court with this judgment had told young LGBT Indians that they are not alone. Their court, constitution and country stands with them.”

Arundhati Katju, comments,

“This is a historic win. The Supreme Court has affirmed that the Indian Constitution applies with full force to LGBT Indians. As a unanimous decision passed by all five judges, this will have wide-ranging repercussions in the years to come.”