Homosexuality is no longer a crime in India, after the Supreme Court ruled Section 377 of the Indian Penal Code to be unconstitutional last week.
The 158-year-old law had criminalised sexual intercourse “against the order of nature with any man, woman or animal” – proscribing same-sex relations as a result. Violating the law carried a maximum sentence of life imprisonment.
““A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial,” Justice D. Y. Chandrachud wrote in a judgement. “That it has taken 68 years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead.”
“Homosexuality is no longer a crime in India, after the Supreme Court ruled Section 377 of the Indian Penal Code to be unconstitutional”
Calling the law “antiquated and anachronistic”, Chandrachud stated that it forced LGBTQ+ people to “live in hiding, in fear and as second-class citizens”. As a result, he said, “sexual orientation has become a target for exploitation, if not blackmail, in a networked and digital age”. Chandrachud said it was time to “invoke the transformative power of the Constitution”. He described the Court’s judgement as a means of “[setting] the course for the future”.
The Delhi High Court passed a similar judgement on Section 377 in 2009, but this was struck down by the SC in 2013. The Court stated at the time that, as the LGBTQ+ population in India constituted only a “miniscule” proportion of the population, rendering the DHC’s decision ultra vires (beyond their power or authority).
“It forced LGBTQ+ people to “live in hiding, in fear and as second-class citizens”.”
Petitions against Section 377 began to be heard by the SC in 2016, resulting in Thursday’s landmark ruling. The SC additionally ruled last year that an individual’s sexual orientation represented “an element of privacy and dignity” and therefore was protected by the Constitution.
The ruling could facilitate broader social acceptance of the LGBTQ+ community in India. As Chandrachud stated in his judgement, Section 377 “lent the authority of the state to perpetuate social stereotypes and encourage discrimination.” While the repeal of Section 377 will not end the discrimination and harassment faced by LGBTQ+ Indians, it is undoubtedly an important – and belated – first step.
