In a surprising decision, India’s top court has legalized gay sex partially striking down Section 377 of the Indian Penal Code, a 158-year-old colonial-era law. The law criminalized intercourse “against the order of nature,” which was taken to mean same-sex relations even between consenting adults, and imposed a punishment of up to 10 years in prison. The judgment included not only decriminalization and an apology, but also recommendations for workshops in schools and police stations across India to try and change public perceptions of the LGBTQ community.
Although Section 377 was not often enforced, Arif Jafar, one of the petitioners whose case the Supreme Court ruled on, was arrested in 2001 under Section 377 and spent 49 days in jail. In the momentous decision, Justice Dhananjaya Y. Chandrachud wrote: “What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane.”
Hinduism has traditionally maintained a flexible, non-prescriptive view of sexuality. However, in recent years hardline Hindu groups had taken a more conservative approach. Opposition to moves to overturn Section 377 had rested predominately on moral and religious objections. Furthermore, the Indian government had left the decision regarding the legality of Section 377 to the Supreme Court, saying it would neither fight nor directly support the five lead petitioners asking for Section 377 to be reconsidered.
The movement to decriminalize Section 377 has endured a long and arduous road. In 2009, the Delhi High Court ruled that the ban on consensual gay sex violated fundamental rights. However, the decision, which only applied to the Delhi region, 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 2013 ruling, the Supreme Court said that only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders” and it was therefore “legally unsustainable” to repeal the act. Yesterday’s decision was a relief to those advocating for LGBTQ rights around the world.
Although this is a step in the right direction, the decision only decriminalizes sexual acts; India still does not permit same-sex couples to marry, adopt or inherit property. Now the broader issue of equality needs to be addressed as well as the need for further legal protections and rights for the LGBTQ community— such as rights to marriage and adoption.