In a major victory for LGBTQ rights, the world’s second most populous country finally struck down a ban on consensual gay sex—157 years after the law known in India as Section 377 was first put in place when the country was a British colony ruled by Britain’s Queen Victoria.
The wording of the 1861 law prohibited any type of sexual activity “against the order of nature,” which has long been interpreted to refer specifically to homosexual acts. LGBTQ activists in India had been challenging the law for years, before the Indian Supreme Court handed down its landmark ruling in which Chief Justice Dipak Misra called the Victorian-era law “irrational, arbitrary and indefensible,” Britain’s Independent newspaper reported.
“Any consensual sexual relationship between two consenting adults—homosexuals, heterosexuals or lesbians—cannot be said to be unconstitutional,” the Chief Justice said in his ruling.
“History owes an apology to members of the community for the delay in ensuring their rights,” added Justice Indu Malhotra, according to The New York Times.
LGBTQ rights activists throughout the country of 1.324 billion people broke into celebration after the court handed down its decision on Thursday.
“This decision is basically saying, ‘You are not alone,’ ” said Menaka Guruswamy. a lead lawyer for the petitioners in the case. “The court stands with you. The Constitution stands with you. And therefore your country stands with you.’”
The petitioners—dancer and yoga teacher Navtej Singh Johar, 59, and journalist Sunil Mehra, 63—have been together as a couple since 1994, according to Quartz.com.
The 1861 law, when it was first imposed, carried a possible life sentence for “whoever voluntarily has carnal intercourse against the order of nature.” According to the Times, the law was applied mostly to gay men, though even heterosexual oral and anal sex were considered illegal under Section 377.
The legal ban on gay sex actually extends back to a 1533 law known as “The Buggery Act,” according to the historical site Factly. The British law was first imposed under the reign of King Henry VIII.
Gay sex was finally decriminalized in the United Kingdom in 1967 and same sex marriage was legally recognized in Britain in 2014. But India, which won independence from Great Britain in 1947, kept the ban on gay sex on the books—until Thursday.
The Indian government has said that it would abide by the court’s decision and would not seek legislation to reimpose a ban on gay sex, but conservative elements opposed to lifting the ban remain in India.
“It’s shameful,” said Swami Chakrapani, president of the right-wing All India Hindu Mahasabha group. “We are giving credibility and legitimacy to mentally sick people.”
Photo By Nick Johnson / Wikimedia Commons
