INDIAN PENAL CODE CHANGE AN LGBT VICTORY
“WHOEVER voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished…” Other acts that are considered to be “against the order of nature” and therefore prohibited by section 377 are bestiality, and acts of carnal intercourse against minors and non-consenting adults. These aspects will, rightly so, remain unaffected by the recent Supreme Court ruling.
Section 377 is an antiquated provision that dates back to the British colonial rule. This homophobic and discriminatory section, which considers consensual gay sex between adults to be on par with bestiality, was introduced in 1861.
India, like many former British colonies, continued to carry the yoke of colonial legislation, much to the detriment of the LGBT community, while England decriminalised homosexual conduct in 1967.
In April this year, British Prime Minister Theresa May indicated that she “deeply regretted” the laws introduced during British colonial rule and that the UK government would support legislative reform in the Commonwealth.
This international support is important, but real change was brought about by domestic Indian activists.
The Naz Foundation, an Indian NGO, and other petitioners took the matter to the Delhi High Court, and won in 2009, resulting in the striking down of the section insofar as it criminalised consensual gay sex.
This was overturned on appeal in 2013, after a coalition of Christian, Hindu and Muslim groups petitioned the court. The court indicated that only a small portion of India’s population was part of the LGBT community and therefore repealing section 377 would be “legally unsustainable”.
They also indicated that it was up to the legislators to amend the law, not the judiciary. Attempts to introduce legislative changes through parliament and a private member’s bill were also thwarted on several occasions by conservative parliamentarians.
Thankfully, the NAZ Foundation and the others did not give up. They found themselves before the Supreme Court in January this year, resulting in this seminal judgment.
The LGBT community has been victimised and persecuted in India for many years. In 2015, it was reported that 1284 people were arrested under section 377. Many members of the LGBT community report being blackmailed by police or by people threatening to report them due to their sexual orientation, a “crime” carrying 14 years to life in prison.
The Supreme Court of India has done right by the LGBT community. Hopefully the rest of Indian society will follow, and LGBT people will no longer live in fear. As aptly put by the Supreme Court, “History owes an apology to the members of this community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries.”
History owes an apology to members of this community and their families for the delay in providing redress Supreme Court of India