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.





Sixteen countries, most of which are in Europe, currently allow same-sex couples to marry. The list of countries includes the Netherlands, Belgium, Spain, Norway, Sweden, Portugal, Denmark, Argentina, Brazil, France, Brazil, South Africa and Iceland.  New Zealand, Uruguay, Canada, and Britain, have all passed legislation that allows same sex marriage, but has not yet taken effect. Mexico has court-mandated legal protections for same-sex couples similar to those now mandated in the United States. Bills allowing legal recognition of same-sex marriage have been proposed, are pending, or have passed at least one legislative house in Andorra, Finland, Germany, Ireland, Luxembourg, Nepal, Scotland, and Taiwan, as well as in parts of Australia.

At the end of June, the Supreme Court in a 5-4 decision, struck down a provision of the 17-year-old Defense of Marriage Act (DOMA) that denied federal benefits — like Social Security or the ability to file joint tax returns — to legally married same-sex couples.

Following that decision, President Obama asked all agencies to review policies in regard to same sex couples. As a result, the State Department decided to make a change to the visa application process that now will allow same sex couples to obtain immigration benefits. Immigrants will derive benefits under these new visa policies even if they hail from countries that do not recognize same-sex marriage. Similarly, they will enjoy these benefits even if they reside in states in the U.S. that do not currently have same sex marriages.

Not long after the US Supreme Court decision, Pope Francis surprised the Catholic faithful late last month by saying: “If a person is gay, seeks God and has good will, who am I to judge?” The comments followed one of the largest papal Masses in recent history in Brazil and prompted worldwide speculation about whether the pope, known as a staunch opponent of gay rights, was signaling a slightly softer tone or a more dramatic shift on a longstanding hot-button issue for the church.

Be it as it might the tide might be finally changing. When the most influential country and the representative of the most influential religious institution in the world appear to move in the same direction many others might just follow.