Special Briefing: India’s Landmark Gay Rights Ruling

Special Briefing: India’s Landmark Gay Rights Ruling

By OZY Editors

Gay rights activists celebrate after the country's top court struck down a colonial-era law that made homosexual acts punishable by up to 10 years in prison, in Mumbai, India, Thursday, Sept. 6, 2018.
SourceRajanish Kakade/AP


Because millions of gay and transgender people in India can now live more openly.

By OZY Editors

This is an OZY Special Briefing, an extension of the Presidential Daily Brief. The Special Briefing tells you what you need to know about an important issue, individual or story that is making news. Each one serves up an interesting selection of facts, opinions, images and videos in order to catch you up and vault you ahead.


What happened? India’s Supreme Court on Thursday struck down a 158-year-old colonial-era law that criminalized adult consensual homosexual relationships with a penalty as high as life imprisonment. The law was partially declared void by the Delhi High Court in 2009, but the Supreme Court reinstated it in 2013, arguing that repealing laws was Parliament’s job, not the judiciary’s. In 2016, the top court agreed to hear a fresh batch of petitions against the law.

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Indian members and supporters of the lesbian, gay, bisexual, transgender (LGBT) community celebrate the Supreme Court decision to strike down a colonial-era ban on gay sex, during heavy rainfall in New Delhi on September 6, 2018. 


Why does it matter? The latest government figures, from 2012, put India’s LGBTQ population at more than 2.5 million. The LGBTQ community has long accused the police and government officials of using Section 377 of the Indian Penal Code, the law banning same-sex relationships, to harass them and to extract bribes. National records show that in 2016, police registered more than 2,000 cases under Section 377. “History owes an apology to LGBT persons for ostracization [and] discrimination,” said Justice Indu Malhotra, one of the three judges on the bench that passed Thursday’s order.



Shedding colonial baggage. Ancient Indian scriptures include characters who are neither fully male nor female. Transgender communities, such as the hijras, have existed across South Asia for centuries. Traditionally, they were often invited to bless newborns. But the Victorian morals that Britain brought to India have shaped much of the nation’s thinking for two centuries. So much so that Section 377 called same-sex relationships “unnatural offenses.” 

Still a struggle. Though the abolition of the law by the Supreme Court means that the police can no longer arrest someone for their sexual orientation, India’s LGBTQ community is likely to continue to face discrimination from a society that predominantly remains conservative on the subject. Finding an apartment to rent is near impossible for a gay couple, and caricatures of gay and transgender people remain commonplace. Indeed, Parliament and the government are divided on Section 377: One of the most senior ministers in the current government, Rajnath Singh, said in 2013 that he believes homosexuality should stay criminalized. 

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Indian members and supporters of the lesbian, gay, bisexual, transgender (LGBT) community celebrate the Supreme Court decision to strike down a colonial-era ban on gay sex, in Bangalore on September 6, 2018.


But gains are mounting. The verdict comes amid growing pressure from the international community, including the United Nations. Over the past three years, multiple foreign embassies in New Delhi, led by the U.S., have celebrated June as Pride Month with public events and their buildings lit up in rainbow colors. Prominent Indians like writer Vikram Seth and filmmaker Karan Johar have come out of the closet — and urged others to do the same. India’s transgender community has also made strides, with passports and other official forms now allowing for third-gender options. In 2015, the country’s first transgender police officer joined the force. 

Who’s next? From democracy to secularism, India has long been a torchbearer in the post-colonial developing world. On LGBTQ rights, though, India has traditionally lagged behind some of its neighbors. Nepal legalized same-sex relationships in 2007, and otherwise conservative Pakistan legally punishes discrimination against transgender people. Sri Lanka’s government has told the U.N. Human Rights Council it is working toward decriminalizing gay sex — meaning the island nation could be next. Same-sex relationships remain illegal in more than 70 countries. 


India: You’re Criminal if Gay, by Leila Seth (a former judge and the mother of writer Vikram Seth) in The Times of India and The New York Review of Books

“If Vikram falls in love with another man, he will be committing a crime punishable by imprisonment for life if he expresses his love physically.” 

When Reporting on Gay Rights Gets Personal, by Kai Schultz in The New York Times

“Three years ago, when I left New York City for South Asia to give journalism a try, I barely thought about the consequences of moving to a part of the world where sex between men is illegal. The longer I stayed, the more I felt unsettled.” 


India’s Supreme Court Decriminalizes Homosexuality in Historic Ruling for the LGBTQ Community

“It’s a historic day.” 

Watch on Time on YouTube:

Flirting Across the India-Pakistan Border

“I talked to (a guy) in India for two to three months, then we planned to meet together …… we decided that it is difficult to meet anywhere in Pakistan or India, so we planned to go to Thailand.”

Watch on BBC News on YouTube:


More Loyal Than the Queen? Section 377 was imposed by the British in 1860, largely to bring Indian society in line with Victorian cultural norms. Of the countries that still punish homosexuality, 36 are part of the 53-member Commonwealth made up mostly of former British colonies. The United Kingdom, meanwhile, decriminalized homosexuality in 1967. Earlier this year, U.K. Prime Minister Theresa May apologized at a gathering of Commonwealth nations for her country’s legacy of anti-gay discrimination.