Key members of the party-including Home Minister Rajnath Singh and Yogi Adityanath, the chief minister of Uttar Pradesh, India’s most populous state-have openly opposed revoking Section 377. The right-wing government, headed by the Hindu nationalist Bharatiya Janata Party, has not helped the matter. Singhvi, who retired the same day the bench declared that only a “miniscule fraction” of Indians were LGBT and dismissed the “so-called rights of LGBT persons.”įollowing the Supreme Court verdict, members of the opposition such as Shashi Tharoor, the lively member of Parliament from the opposition Indian National Congress, put forward a private members bill to decriminalize homosexuality, but the majority of parliament voted against it.
This Supreme Court judgment was formed by a bench of just two members and was headed by Justice G.S.
This ruling crippled India’s gay rights movement and left the country’s LGBT population fearful, angry, and dejected. In 2013, the Supreme Court unexpectedly overturned the earlier judgment and once again made gay sex a crime. After eight years of legal fights, which included several dismissals by the court, and burgeoning pressure from India’s liberal media, the Delhi High Court, part of the second layer in India’s three-tiered legal system, decriminalized consensual same-sex relationships in 2009, stating that Section 377 undermined constitutional values and the notion of human dignity.
In 2001, the Naz Foundation went to court to challenge the validity of Section 377, arguing that the law violated the Indian Constitution by depriving citizens of their rights to equal treatment under the law. Although these numbers are not huge, according to Anjali Gopalan, a founder of the Naz Foundation, a gay rights and HIV advocacy organization, the police and other authorities use Section 377 to harass, exploit, and extort. National Crime Records Bureau data show that 814 cases-a majority-were crimes committed against children, rather than consensual sex among adults. In 2015, there was a 17.3 percent increase, including 154 cases that involved juveniles. In India, according to available public figures, in 2014, 1,148 Section 377 cases were recorded. Countries that continue to punish homosexuality based on similar colonial-era laws include Botswana, Cameroon, Gambia, Kenya, Pakistan, and Bangladesh.Įnforcement of the law has been sporadic. Section 377, established by India’s British colonial rulers in 1861, prohibits sexual activities “against the order of nature” and is punishable with a fine and/or imprisonment ranging from 10 years to life. India’s Supreme Court originally recriminalized homosexuality the same year that British courts legalized gay marriage. Premarital sex is becoming both more common and more commonly discussed in the media, but organized spaces for young people to talk about sex and gender are few and far between. Sex education is urgently needed, but official government documents come out against it and recommend yoga and naturopathy. Young Indians are building up the self-confidence to come out of the closet, but laws such as Section 377 make it unsafe for them to so.
Couples are choosing to make their own marital choices, but so-called honor killings have soared by an estimated 800 percent. There is a fierce backlash against modernity and Westernization, as well as a growing tension between the old and the new. According to Justice Indu Malhotra, homosexuality “is not an aberration but a variation,” and “because of family pressures and societal pressures, they are forced to marry the opposite sex.” The decision could not only liberate tens of millions of gay Indians from a cruel and pointless law but also set a precedent throughout the Commonwealth, which shares a similar legal tradition.Īs India barrels into the 21st century, a progressive, fast-urbanizing, and young country is fighting for change against conservative, traditional forces struggling to maintain their control. Based on the proceedings so far, rainbow flags are waving. In India’s Supreme Court system, the highest court in the country and the last word on legal matters, individual benches-subgroups of judges formed on an ad hoc basis-can reconsider the constitutionality of laws. In what may be the last great battle in a fight for gay rights that has lasted more than two decades, a five-member bench headed by India’s chief justice, Dipak Misra, appointed just last August, is challenging the constitutionality of Section 377, the British-era law that bans sexual activities “against the order of nature,” including homosexual activities. Five years after the Indian Supreme Court decided that an archaic piece of colonial law meant gay sex was illegal in India, the judicial system has a chance to set things right.
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