India’s Landmark Supreme Court Decision that Criminalizing Consensual Same-Sex Conduct is Unconstitutional
(London, September 6, 2018) – India’s landmark Supreme Court decision that criminalizing consensual same-sex conduct is unconstitutional is a major victory for human rights and the LGBT people’s rights to privacy and non-discrimination in the world’s second most populous country, Human Rights Watch said today.
The decision on September 6, 2018 strikes down language in Section 377 of India’s penal code, a relic of British colonial rule that punishes “carnal intercourse against the order of nature” with 10 years to life in prison.
“The Supreme Court decision means that at long last same-sex relations are no longer a criminal offense in India,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The court has affirmed that no one should be discriminated against for whom they love or what they do in the privacy of their bedroom.”
The judges unanimously ruled that consensual same sex relationships are no longer a crime, deeming Section 377 “irrational, arbitrary and incomprehensible.”
The court’s ruling affirmed that lesbian, gay, bisexual, and transgender (LGBT) people in India are entitled to the full protection of both India’s constitution and international human rights law, and that laws that treat people as second-class citizens based on their real or perceived sexual orientation have no place in modern India.
The ruling follows a long struggle for the decriminalization of same-sex conduct in India. In 2001, the Naz Foundation (India) Trust, an organization working on HIV/AIDS and sexual health, filed a case before the Delhi High Court, contending that Section 377 violated both the Indian constitution and international human rights law, and that it impeded the organization’s public health outreach. In 2009, the court issued a ruling in support of the petitioners.
But the Supreme Court overturned that decision in 2013, ruling that amending the law was the responsibility of the legislature. The reversal had devastating consequences for LGBT Indians who had come out as a result of the 2009 ruling. While it led to only a few documented arrests, LGBT people in India continued to suffer widespread discrimination, sanctioned by a discriminatory law. They remained vulnerable to violence and extortion, including by the police.
Activists in India filed new petitions asking the Supreme Court to review its ruling. In 2016, the court, after initially refusing to hear the review petitions, admitted the curative petitions reviving the legal battle for the repeal of the law. The petitions were referred to a five-judge Constitution Bench for detailed hearing. In January 2018, after issuing important rights-affirming rulings on privacy and on transgender equality, the court announced that it would revisit the case. In July, a five-judge bench began hearings that included new petitions filed by LGBT people.
The ruling also has significance internationally, Human Rights Watch said. Section 377 of India’s penal code, first implemented in 1860, served as a template for similar laws throughout much of the former British empire. Colonial governors elsewhere in Asia and Africa used the language of Section 377 in dozens of statutes criminalizing so-called “unnatural offenses” – generally understood to mean anal sex, or sodomy – while in the Caribbean, the British used different language, imposing laws against “buggery.”
Over 70 countries, including many in the Commonwealth, still criminalize consensual same-sex relations. Kenya and Botswana, both of which inherited versions of the Indian penal code during the colonial period, currently have cases pending before their courts that would also strike down laws outlawing consensual same-sex conduct. Other countries in which courts have struck down sodomy laws in recent years include Trinidad and Tobago (2018), and Belize (2015).
The decriminalization of same-sex conduct will not immediately result in full equality for LGBT people in India, Human Rights Watch said. Transgender people in particular, including hijra communities, face discrimination in employment, housing, and health care. A draft law on transgender persons, introduced in 2016, does not go far enough in protecting trans people’s rights to legal recognition according to their gender identity.
“Striking down Section 377 is a momentous step that will resonate around the world in communities that are fighting for equality,” Ganguly said. “But like other countries, India has significant work to do to ensure that the rights of people who have been long marginalized on the basis of their sexual orientation or gender identity are fully protected.”