India’s Supreme Court has legalised gay sex, scrapping the colonial-era Section 377 that made the act punishable by up to 10 years in prison in a landmark judgement that activists hope will result in the subcontinent continuing to promote equality.
Section 377 of the Indian Penal Code (IPC) states that intercourse between members of the same sex was against the order of nature, but five petitioners who challenged the law said that it was discriminatory and had resulted in gay people being harassed and persecuted by the police.
Gay sex was considered taboo by many in India, especially after Section 377 was reinstated as a criminal offence in 2013 after four years of decriminalisation. However, a five-judge bench overturned the ban resulting in opponents of the law celebrating outside the court.
What is Section 377?
As reported in The Indian Express, Section 377 of the IPC states: ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’
Section 377 was first adopted in 1861, but in 2009, the Delhi High Court described the law as a violation of the rights that were granted by the Constitution but following this, four years later, the Supreme Court overruled the order and reinforced the criminalisation of homosexuality.
This was done because the Supreme Court believed that it was the Parliament’s responsibility to scrap laws and the decision to re-criminalise the law was criticised by the LGBTQ community in India, also being seen as a setback for human rights.
However, at the start of 2018, the Supreme Court announced that a larger group of judges would reconsider the previous judgement and analyse the validity of Section 377. After revisiting the 2013 verdict, the Supreme Court said: ‘The section of people who exercise their choice should never remain in a state of fear.’
Justice Dipak Misra then added: ‘Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench.’
Section 377 verdict
In a landmark ruling, India legalised gay sex and ruled that adult homosexual relations were not a crime, also stating that sexual orientation was natural and people had no control over it, according to Times of India.
This came after the Supreme Court upheld the Right to Privacy as a fundamental right under the Constitution, calling for equality and the condemnation of discrimination. Alongside this, five petitioners challenged the law and said that it had led to gay people living in fear.
Attorney for the petitioners, Arvind Datar, argued in court that the penal provision was unconstitutional because it provides for the prosecution and sentencing of consenting adults.
However, gay people have gained a degree of acceptance in parts of deeply conservative India, especially in big cities over the past 10 years.