Indian Supreme Court rules ban on gay sex “irrational”

Graphic by Kinsey Ratzman ‘21

Graphic by Kinsey Ratzman ‘21

BY EMMA COOPER ’20

The Indian Supreme Court decriminalized the act of consensual gay sex on Sept. 6. They did so by declaring they would eliminate Section 377 of the Penal Code, which was introduced during British colonization in 1861, and has been used to criminalize sexual activities “against the order of nature,” such as sex with minors, non-consensual sexual acts and bestiality, as reported by the BBC.

Although Section 377 considered all anal and oral sex — even among consenting heterosexual adults — to be a crime, the legislation largely affected members of the LGBTQ+ community. 

Advocacy groups such as the international organization Human Rights Watch have acknowledged the harmful effects of Section 377, including the harassment, blackmail and discrimination of gay Indians, HIV prevention groups and sexual assault victims. 

For Gargi Mishra ’18, a recent Mount Holyoke alum from India, the partial repeal of Section 377 was unforeseen. “It was a happy surprise when I heard the decision,” she said. “I definitely had not expected it.” 

Activists in India have been trying to change the legislation for years. According to Vox, the first turning point in the fight came in 2009 when the Delhi High Court overturned the ban on gay sex within its jurisdiction. However, in a reversal four years later, the Supreme Court upheld the constitutionality of Section 377 and fully reinstated it within the country.

“Ever since [the 2013 judgment],” Mishra said, “I had been following the news, and it didn’t seem that anything would change anytime soon, especially with a resurgence of certain religious and nationalist groups in the country.” 

Yet in 2016, following a writ petition from five prominent members of India’s LGBTQ+ community (Navtej Johar, Sunil Mehra, Ayesha Kapur, Aman Nath and Ritu Dalmia), the Supreme Court agreed to revisit their previous judgment. 

Over the next two years, Section 377 was pending judicial consideration. Meanwhile, in August of 2017, the Supreme Court upheld the right to privacy and denounced discrimination on the basis of sexual orientation in a separate case. Although these were promising steps, judges were unable to discuss the constitutional validity of Section 377 at the time, and its future remained unclear. 

Amaya Choksi ’21, a member of AWAZ (Mount Holyoke’s South Asian student association), commented on the 2017 case: “People thought it was landmark. Was it really though?” At the time, Section 377 was still in place, which Choksi said “limited the LGBTQ+ community’s right to express or act on their gender and sexuality.” The hearings on Section 377 began in July 2018, and the New York Times reported that more than two dozen challengers, which included gay, lesbian, bisexual and transgender people, shared their own personal testimonies. They told powerful accounts of mistreatment, and many spoke of the shame they felt hiding their true selves and their relationships from those in their personal and professional lives. 

After weeks of deliberation, the Supreme Court announced their decision on Thursday, with Chief Justice Dipak Misra calling the ban on consensual gay sex “irrational, indefensible and manifestly arbitrary.”

Following the Supreme Court’s decision, Choksi noticed a popular post being shared on social media. Shahmir Sanni had tweeted in celebration, “This isn’t India becoming ‘westernised.’ It’s India decolonising,” which is a sentiment that resonated with Choksi. Mishra shares this sentiment. “Yes, I could not agree more,” she said. “There are mentions of homosexuality in some of the most ancient texts [in India], and depictions of it in architecture.”

Section 377 was modeled after the Buggery Act of 1533 — England’s first civil sodomy law.  Currently, CNN reports there are approximately 30 former British colonies with laws criminalizing homosexuality that were based on the original colonial legislation.

While certain Indian legislation remains restrictive, particularly in regards to gay marriage, adoption and inheritance laws, many in the country hope this legislation is a step towards overcoming Indian society’s prejudice against members of the LGBTQ+ community.

One petitioner, Yashwinder Singh of the  Mumbai-based LGBTQ+ rights group The Humsafar Trust, told CNN  “the constant fear of 377 we have felt will not be there for the upcoming generation.”

Mount Holyoke News

Mount Holyoke News , Blanchard Campus Center, 50 College Street, South Hadley, MA, 01075