India’s Supreme Court ruled Thursday that the country’s colonial-era law criminalizing same-sex relations is unconstitutional, paving the way for LGBTQ equality in India and beyond.
The ruling comes after years of both advances and setbacks for LGBTQ people in India. The country’s so-called sodomy law, Section 377 of the Indian Penal Code, punished “carnal intercourse against the order of nature” with up to life in prison. The Delhi High Court struck down that law in 2009, writing that it violated the fundamental rights to life, liberty, and equality guaranteed by the Indian Constitution. The court noted how criminalization of same-sex relations harms the lives of LGBTQ people.
But just as Indian activists had earned a hard-fought victory, some individuals and religious groups appealed the verdict. A two-judge panel of the Indian Supreme Court overturned the decision in 2013, ruling that amending the law was the responsibility of the legislature. The 2013 decision derided the Delhi High Court for “overlook[ing] that a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in [the] last more than 150 years less than 200 persons have been prosecuted.”
But on Thursday, a different five-judge constitutional bench of the Indian Supreme Court unanimously overruled the 2013 decision. Chief Justice Dipak Misra explained that “the law had become a weapon for harassment for the LGBT community,” adding that “any discrimination on the basis of sexuality amounts to a violation of fundamental rights.”
Spanning hundreds of pages and citing decisions from several countries, the Indian Supreme Court’s judgment is striking for its emphasis on the value of “inclusiveness”—broader in scope than the privacy-based arguments in earlier sodomy law cases such as the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas.
“The ideals and objectives enshrined in our benevolent Constitution can be achieved only when each and every individual is empowered and enabled to participate in the social mainstream and in the journey towards achieving equality in all spheres,” the Supreme Court of India stated. “This can be achieved only by inclusion of all and exclusion of none from the mainstream.”
“All human beings possess the equal right to be themselves instead of transitioning or conditioning themselves as per the perceived dogmatic notions of a group of people,” it went on. “Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life―as the herald of a New India―to a more inclusive society.”
In other words, LGBTQ Indians need not retreat from public life in order to be who they are, nor must they change who they are to appear in public. They are a part of Indian social fabric.
It is difficult to overstate the significance of this opinion for Indian and global LGBTQ rights. For India’s entire history since its independence in 1947, Section 377 has reinforced the idea that discrimination and mistreatment against LGBTQ people is acceptable in Indian society. Thursday’s judgment makes clear that targeting sexual minorities under the law is illegitimate and unconstitutional. More than 1.3 billion Indians are closer to a legal system where it is no longer illegal for them to be who they are.
And like India’s decolonization in 1947, this decision is likely to reverberate across South Asia and beyond. India’s Section 377 was the first colonial sodomy law included in a post-colonial penal code, and it became a model law for countries in Asia, the Pacific, and Africa. For decades, LGBTQ activists in many of these countries have been fighting this colonial legacy. But the depiction of homosexuality and gender nonconformity as something “Western” has also long been an obstacle to LGBTQ equality in many countries. Thursday’s ruling dismantles the argument that LGBTQ people and rights are “foreign.” If India can move past its colonial legacy and treat its LGBTQ citizens with respect and dignity, why not other countries?
High-court rulings are seldom a panacea for societal discrimination, in India or elsewhere. Despite the Supreme Court of India’s ruling that transgender people have the right to self-identify as male, female, or third gender—and are entitled to benefit from affirmative action—a draft bill on transgender rights has lagged in Parliament. A 2017 report documented how police use vague laws to arrest and harass India’s sexual and gender minorities, with people living in poverty being most vulnerable to abuse. It is clear that a range of concrete steps, from police and legal services reforms to laws actively protecting LGBTQ people from discrimination, will be needed before LGBTQ Indians are not only equal, but can live equally.
Yet Thursday’s judgment marks a long-awaited hard-fought step toward LGTBQ equality under law.