India: Supreme Court decriminalises gay sex

On 6 September 2018, the Indian Supreme Court handed down an historic judgment decriminalising gay sex in India.

The ruling overturned Section 377 of the Indian Penal Code, a remnant of the colonial era which deemed that sex between men – and later extended to all LGBTI individuals – was a criminal offence, punishable by up to ten years in prison.

Activists celebrated in the streets when the judgment was handed down, not quite believing that it had finally happened.

The Indian government had called upon the Supreme Court to address the matter of decriminalisation. In fact, it went beyond its mandate and recognised fundamental rights, quoting both Goethe and Shakespeare as it did so.

“In one resolute stroke, the judges unanimously provided liberation to huge numbers of homosexual, bisexual and transgender people

Hon. Michael Kirby,
Co-Chair, IBA Human Rights Institute

The judgment stated unequivocally: ‘The State has no business to get into controlling the private lives of LGBT community members or for that matter of any citizen,’ and ‘Section 377 results in discrimination and is violative of constitutional principles.’

This decision is clearly of huge importance in India and marks an important step in throwing off what many Indians see as colonial era shackles, which impede the development of the world’s second most-populated country.

Honourable Michael Kirby, Co-Chair of the International Bar Association's Human Rights Institute (IBAHRI) and former Justice of the High Court of Australia, says the ruling’s significance cannot be understated. ‘An independent court overturned an 1860 colonial law and invoked its own “constitutional morality” to protect its citizens against imported medieval prejudice,’ he says. In one resolute stroke, the judges unanimously provided liberation to huge numbers of homosexual, bisexual and transgender people, and their families, whose lives had until then been lived under a shadow of legally sustained prejudice.’

Dr Phillip Tahmindjis, Director of the IBAHRI, says the judgment ‘vindicates at the local level – where human rights matter most – not only the human rights of all people, but also the dignity to which everyone is morally and legally entitled.’

Leo Raznovich, Co-Vice Chair of the IBA LGBTI Law Committee, says the judgment signals the beginning of the end of inequality in India: ‘The very basic concepts of rule of law, privacy and equality before the law that were used to end the colonial law will serve to gain modern equality for all under the Indian Constitution.’

Tahmindjis agrees the ruling is ‘ground-breaking’, but the judgment still leaves some questions unanswered. It states that it is no longer an offence to engage in consensual gay sex with a person of the same gender in private. However, ‘activity in private’ is not adequately defined and makes it unclear whether two men holding hands in the street would still be punishable, or even whether gay pride marches could still be banned.

‘The case is a great step forward, but it does not signal that the end of the road has been reached,’ says Tahmindjis. Indeed, although the law has changed, social attitudes may take much longer to shift in India. Delhi is a large international city, but LGBTI people in smaller cities or the countryside are likely to find it hard for a while yet to be open about their sexuality.

Wider repercussions

The judgment could have far-reaching consequences. More than 70 countries around the world still have laws that criminalise consensual same-sex acts. Similar laws to Section 377 are still in place in nearly 40 of the 54 Commonwealth countries. Many, including Paul Dillane, Director of the LGBTI charity The Kaleidoscope Trust, believe India will become a case study as LGBTI activists take up legal battles to overturn these laws.

Kirby says the judgment will be a vital strengthening tool for those fighting for similar reform in other Commonwealth countries. ‘The decision of the Supreme Court of India will add strength to the demands that those countries should move to get rid of such laws,’ he says.

Research undertaken by Enze Han and Joseph O’Mahoney in 2014 concluded that former British colonies were more likely to retain colonial laws criminalising consensual same-sex activity than the former colonies of any other power. Like Kirby, Raznovich hopes ‘the repeal of this colonial law in India may benefit the other former colonies, particularly those where the rule of law plays a fundamental role.’

The IBA has taken a firm stance against laws that criminalise LGBTI people around the world, repeatedly emphasising that LGBTI rights are human rights. It has recently made representations to the British Government in respect of the laws of Bermuda, a British overseas territory, where the legislature is attempting to overturn a Bermudan Supreme Court decision handed down in May 2017, which stated that Bermudan citizens of the same sex were entitled to marry.

As Kirby says, it’s hoped that the Indian decision will ‘reinvigorate civil society organisations everywhere in their determination to get rid of these remnants of unscientific ignorance and prejudice.’