On July 2, 2009, the Delhi High Court of India legalized same-sex acts between two consenting adults, overturning a 148-year-old British colonial law which criminalized these acts. The court stated that the statute in Section 377 of the Indian Penal Code, which defined same-sex acts as both illegal and against the “order of nature,” violated equal rights to gays.[i] Chief Justice A.P. Shah wrote the judgment and cited words from Jawaharlal Nehru, the first prime minister of independent India, when he explained that India “was to be inclusive of everyone” and that no one had the right to treat minorities as criminals just because they don’t like them.[ii] Chief Justice Shah ruled that Section 377 of the Indian Penal Code would no longer apply to what two consenting adults did in private.[iii] The ruling, which will only apply in New Delhi, serves as a huge step toward equal rights for LGBT individuals in a country whose social conservatism runs deep.[iv]
India has a long history of discrimination against LGBT individuals, who have faced unchallenged violence and persecution for their sexual orientation.[v]
According to a 2008 Human Rights Watch report, “British colonizers introduced Section 377 to India in 1860; since then, it has become a model for similar sodomy laws imposed on other British colonies.”[vi]
Prior to this ruling, the punishment for engaging in same-sex acts had been ten years in prison.[vii]
Though actual prosecutions were not common place, the law was frequently used to intimidate and harass the gay community.[viii]
Human rights activists and supporters of the LGBT community have praised the High Court’s decision to overturn Section 377.[ix]
"This legal remnant of British colonialism has been used to deprive people of their basic rights for too long," said Scott Long, director of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch, "This long-awaited decision testifies to the reach of democracy and rights in India."[x]
Anijali Gopalan, executive director of the Naz Foundation, a New Delhi non-profit organization which filed the petition against Section 377 eight years ago, was effusive, stating, “I’m so excited and I haven’t been able to process the news yet…we’ve finally entered the 21st century.”[xi]
And, Aditya Bandyopadhyay, a lawyer and human rights activist, stated, “We are elated. It’s a path-breaking judgment. It’s a historic judgment, its India’s Stonewall. I think what now happens is that a lot of our fundamental rights and civic rights which were denied to us can now be reclaimed by us.”[xii]
Still, advocates point out that there are obstacles. Ashok Row Kavi, editor of India’s first gay magazine, argues, “The social stigma will remain. It is [still] a long struggle. But the ruling will help in HIV prevention. Gay men can now visit doctors and talk about their problems. It will help in preventing harassment at police stations.”[xiii]
Many groups within India are already voicing their opposition to the ruling. Conservative Hindu political and religious groups argue that sexual activity between persons of the same sex does not follow “India’s deeply held traditions.”[xiv]
Echoing this sentiment, Father Dominic Emanuel of India's Catholic Bishop Council claims that the church does not consider homosexual behavior as “natural, ethical, or moral.”[xv]
Nevertheless, the new law represents an enormous achievement towards equal rights for all in India. Human Rights Watch, along with many other groups, are urging the Indian government not to appeal the Delhi High Court’s ruling, as well as pushing the Indian parliament to rewrite Section 377 of the Penal Code as soon as possible.[xvi]
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[v] “Gay sex decriminalised in India,” BBC News.
[vii] Naqvi, “Indian court decriminalizes consensual gay sex.”
[ix] “Gay sex decriminalised in India,” BBC News.
[x] India: Court Strikes Down ‘Sodomy’ Law.”
[xi] Naqvi, “Indian court decriminalizes consensual gay sex.”
[xii] “Gay sex decriminalised in India,” BBC News.
[xv] “Gay sex decriminalised in India,” BBC News.