Cecily Zamora
On 6 September 2018, India's Supreme Court decriminalised consensual gay sex, overturning a 2013 judgement that upheld a colonial-era law known as Section 377, which criminalised gay sex as an unnatural offence. The 2018 ruling was a significant moment for India's LGBTQ community, as it recognised their right to love and restored their dignity, marking a shift towards greater acceptance and equality. Despite this progress, India's LGBTQ community continues to face legal and social challenges, and the fight for equal rights remains ongoing.
| Characteristics | Values |
|---|---|
| Name of Law | Section 377 of the Indian Penal Code (IPC) |
| Date of Ruling | 11 December 2013 |
| Court | Supreme Court of India |
| Effect | Criminalises consensual homosexual activities |
| Legal Status | Struck down on 6 September 2018 |
| Current Legal Status of Homosexuality in India | Legal |
| Basis for Law | British-era provision |
| Year of Enactment | 19th century |
| Punishment | Fine and imprisonment |
| Public Opinion | Strong opposition among religious groups and conservative rural communities |
| LGBT Rights in India | Advancements made in the 21st century, but social challenges remain |
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What You'll Learn
The colonial-era law
India's Supreme Court decriminalised gay sex in 2018, scrapping a colonial-era law that criminalised same-sex relationships. The law, known as Section 377 of the Indian Penal Code (IPC), was drafted by Lord Thomas Babington Macaulay when India was under British rule. It allowed the judiciary to "punish" LGBT individuals with up to 10 years in jail and a fine.
Section 377 criminalised "carnal intercourse against the order of nature", which extended to gay, lesbian, bisexual, and trans relationships, as well as acts like bestiality and sodomy. The text of the law remained deliberately vague to be applied on a case-by-case basis. This vagueness allowed the police to threaten and blackmail gays, lesbians, and transgender people.
The origins of Section 377 lie in Victorian morality, which criminalised non-procreative sex. It was based on the Christian belief that "sex is a sin". Prior to the imposition of colonial-era laws, India had its own texts detailing the practice of homosexuality and same-sex intercourse. Hinduism has traditionally portrayed homosexuality as natural and joyful, though some texts contain injunctions against it, especially for priests.
In 2009, the Delhi High Court ruled that Section 377 was unconstitutional and struck down the law, decriminalising homosexuality in India for the first time. The court held that penalising such actions violated the right to privacy, personal liberty, equal treatment, and the prohibition of discrimination under the Indian Constitution. However, several anti-gay rights groups challenged the verdict on religious, political, and social grounds.
In 2013, the Supreme Court of India overturned the High Court's ruling, reinstating Section 377 and causing dismay among liberal and progressive Indians, as well as activists and advocacy groups. The Supreme Court's judgement was criticised for disregarding the constitutional vision of an equal and inclusive society and violating the fundamental tenets of India's Constitution.
Finally, in 2018, the Supreme Court of India scrapped Section 377, decriminalising gay sex and recognising the community's right to love. This ruling was a huge victory for India's LGBT community, although it was noted that there was still a need for anti-discrimination laws to protect the community fully.
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The Naz Foundation's challenge
The Naz Foundation is a non-governmental organisation working in the field of HIV/AIDS intervention and prevention. In 2001, the Naz Foundation filed a lawsuit in the Delhi High Court, seeking the legalisation of homosexual intercourse between consenting adults. This was the second such petition, the first filed in 1994 by AIDS Bhedbhav Virodhi Andolan. The Naz Foundation challenged the constitutional validity of Section 377 of the Indian Penal Code, which criminalises "carnal intercourse against the order of nature".
The Delhi High Court, on 2nd July 2009, held that Section 377 violated Articles 21, 14, and 15 of the Indian Constitution, as it criminalised consensual sexual acts between adults in private. The Court expressed the hope that Parliament would legislatively address the issue. The Supreme Court of India, on 11th December 2013, overturned the Delhi High Court's decision, upholding the constitutionality of Section 377. This caused dismay among liberal and progressive people, activists, and advocacy groups, who criticised the ruling from legal and human rights perspectives.
The Naz Foundation filed a review petition against the Supreme Court's order, but it was dismissed in January 2014. The Supreme Court revisited the judgement in 2017 after several curative petitions were filed, and in 2018, in the case of Navtej Singh Johar v. Union of India, a five-judge bench of the Supreme Court overturned the previous judgement, decriminalising homosexuality once again. Portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force. This judgement was celebrated as a landmark decision, with the United Nations chief stressing the need for equality and opposing discrimination against lesbian, gay, and bisexual individuals.
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Supreme Court's 2013 ruling
On December 11, 2013, the Supreme Court of India upheld Section 377 of the Indian Penal Code, a colonial-era law that criminalises homosexuality. The ruling stated that same-sex conduct between consenting adults remains a criminal offence, punishable by a fine and imprisonment. This decision reversed a landmark 2009 Delhi High Court judgement that had struck down Section 377 as a violation of fundamental rights to equality, freedom from discrimination, life, and personal liberty under the Indian Constitution.
The 2013 Supreme Court ruling argued that the Delhi High Court decision was "legally unsustainable" and deferred to the Indian legislature to address the issue. The Court suggested that it was up to the government to consider deleting Section 377, stating that the legislature must "consider deleting this provision from law as per the recommendations of the attorney general". This ruling shocked many activists and advocacy groups, who viewed it as a setback for LGBT rights in India.
The law in question, Section 377, was enacted by the British colonial government and criminalises "carnal intercourse against the order of nature", imposing a sentence of up to life imprisonment for gay sex. The United Nations had previously advised India to decriminalise homosexuality to facilitate successful intervention programs in the fight against HIV/AIDS.
The 2013 Supreme Court ruling was criticised for disregarding the constitutional vision of an equal and inclusive society and violating the fundamental tenets of India's Constitution. The judgement faced backlash from human rights organisations such as Human Rights Watch and Amnesty International India, which highlighted the physical, mental, and legal threats that the law poses to the LGBT community.
Despite the 2013 ruling, India's Supreme Court has taken steps towards recognising and protecting the rights of the LGBT community. In 2017, the Court upheld that the right to individual privacy, including sexual orientation, is an "intrinsic" and fundamental right under the Constitution. This judgement acknowledged the need for equality and respect for individuals regardless of their sexual orientation. In 2018, the Court struck down the part of Section 377 that criminalised consensual homosexual activities, marking a significant step towards decriminalisation and advancing LGBT rights in India.
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Public opinion and protests
In India, public discussion of homosexuality has been inhibited by the fact that sexuality in any form is rarely discussed openly. However, in recent years, attitudes towards homosexuality have shifted slightly, with more depictions and discussions of homosexuality in the Indian media and cinema.
Homophobia is prevalent in India, and mental, physical, emotional, and economic violence against the LGBTQ community remains a problem. Many gay rape victims do not report the crimes due to a lack of support from family, society, or police. Despite this, India has made some progress in LGBTQ rights in the 21st century, largely due to the judiciary rather than the legislature.
In 2006, Nobel Laureate Amartya Sen, writer Vikram Seth, and other prominent Indians publicly demanded the repeal of Section 377 of the Indian Penal Code, which defines homosexuality as "carnal intercourse against the order of nature" and thus illegal. The open letter stated:
> "In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down."
On June 30, 2008, Indian Labour Minister Oscar Fernandes backed calls for the decriminalization of consensual gay sex, and Prime Minister Manmohan Singh called for greater tolerance towards homosexuals. On July 23, 2008, Bombay High Court Judge Bilal Nazki said that India's unnatural sex law should be reviewed. On August 9, 2008, Health Minister Anbumani Ramadoss began his campaign for changing Section 377.
On July 2, 2009, in the case of Naz Foundation v National Capital Territory of Delhi, the High Court of Delhi struck down much of Section 377 as being unconstitutional. The Court held that Section 377 violated an individual's fundamental rights to equality before the law, freedom from discrimination, and to life and personal liberty.
However, on December 11, 2013, the Supreme Court of India upheld the constitutionality of Section 377, overturning the Delhi High Court's judgment. This decision was met with dismay by liberal and progressive people, activists, and advocacy groups, who argued that it violated the fundamental tenets of India's Constitution.
On August 24, 2017, the Supreme Court upheld that the right to individual privacy is an "intrinsic" and fundamental right under the constitution, and that sexual orientation is protected under the country's Right to Privacy law.
Finally, on September 6, 2018, the Supreme Court struck down the part of Section 377 that criminalized consensual homosexual activities, legalizing gay sex. The Court upheld that the law would remain in force regarding unnatural sex with minors and animals. This decision was seen as a historic victory for LGBTQ+ rights, with the Court also directing the Government to take steps to raise awareness about LGBTQ+ identity and eliminate the stigma faced by the community.
Despite this progress, Prime Minister Narendra Modi's Hindu nationalist government has resisted the legal recognition of same-sex marriage and rejected several petitions in favor. In 2023, more than 2,000 people participated in a gay pride event in New Delhi, raising concerns over the country's restrictive laws.
According to surveys, there has been an increase in acceptance of homosexuality in India. A 2017 ILGA poll found that 58% of surveyed Indians agreed that gay, lesbian, and bisexual people should have the same rights as straight people, while 39% said that people in same-sex relationships should be charged as criminals. Ipsos' LGBT+ Pride 2021 Global Survey found that 53% of Indian respondents supported laws banning discrimination against LGBTQ people in employment, education, housing, and social services. Additionally, 58% supported companies actively promoting equality for LGBTQ people, and 44% were in favor of legalizing same-sex marriage.
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The road to decriminalisation
The anti-gay law upheld in India was Section 377, a British colonial-era law that criminalised consensual gay sex. The road to decriminalisation was a long and arduous one, with many setbacks along the way.
In 1991, the movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan, which published a report spelling out the problems with the law and calling for its repeal. In 2001, the Naz Foundation (India) Trust, an activist group, filed a public interest litigation in the Delhi High Court, seeking the legalisation of homosexual intercourse between consenting adults. However, in 2003, the court refused to consider the petition, saying that the petitioners had no locus standi in the matter.
In 2008, the Indian government was undecided on its position regarding Section 377, with the Ministry of Home Affairs and the Ministry of Health holding contradictory positions. On 2 July 2009, the Delhi High Court struck down much of Section 377 as being unconstitutional, holding that it violated an individual's fundamental rights to equality, freedom from discrimination, life, and personal liberty. This was a landmark judgment that gave hope to the LGBTQ community in India.
However, this victory was short-lived as on 11 December 2013, the Supreme Court of India overturned the High Court's decision and upheld the constitutionality of Section 377. This caused dismay among liberal and progressive Indians, activists, and advocacy groups. Despite this setback, the Naz Foundation and the Government of India filed a petition seeking a review of the judgment, arguing that it contained grave errors of law and went against the advancement of fundamental rights and freedoms.
On 24 August 2017, the Supreme Court of India gave the LGBTQ community a small victory by upholding that the right to individual privacy, including sexual orientation, is an "intrinsic" and fundamental right under the constitution. This was followed by a series of petitions filed in the Supreme Court by LGBTQ activists in 2016 and 2018, seeking to overturn Section 377. Finally, on 6 September 2018, the Supreme Court struck down the part of Section 377 that criminalised consensual homosexual activities, legalising gay sex and marking a major milestone for the LGBTQ community in India.
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Frequently asked questions
The anti-gay law upheld in India was Section 377 of the Indian Penal Code, a 19th-century law drafted during colonial rule.
Section 377 criminalised "carnal intercourse against the order of nature", with a focus on same-sex relationships and non-vaginal sexual acts. The law allowed for lengthy prison terms and fines for those convicted.
The Delhi High Court struck down Section 377 in 2009, but it was reinstated by the Supreme Court in 2013. Finally, on September 6, 2018, the Supreme Court scrapped the law, decriminalising homosexuality in India.
