As It Happened: Indian Supreme Court Rules Gay Sex Illegal
Manjunath Kiran/Agence France-Presse/Getty Images
India’s Supreme Court passed a ruling criminalizing gay sex Wednesday.
India’s Supreme Court on Wednesday ruled that gay sex is illegal, overturning a 2009 decision by the Delhi High
Court, which decriminalized homosexual sex. Gay rights activists reacted with anger to the step. Follow our live blog
as we follow reactions to the court’s decision.
India’s gay community, rights activists and religious groups have been awaiting this judgment since March
2012, when arguments in an appeal against a 2009 Delhi High Court ruling legalizing homosexuality came to
The High Court said that a 19th-century provision of the penal code that prohibits people from engaging in
“carnal acts against the order of nature” should not apply to consenting adults, including same-sex couples.
But religious groups challenged the ruling, saying homosexuality is a Western import that hurts Indian society
and family values.
On Wednesday, Supreme Court judges overturned the lower court’s decision, recriminalizing homosexual
sex. Alok Gupta who is an openly gay Mumbai-based lawyer, gathered with a group of young gay people after the
judgment. He said everyone was in tears and devastated by the court’s decision.
“It’s been 13 years we’ve been fighting this case. Gay, lesbian and transgender activists came out at risk to
their lives and they inspired other people to come out. The Supreme Court has put us all back,” Mr. Gupta
said. According to him, the ruling will open gay people up to police harassment and brutality. “How do we protect
anybody?” he said.
“It is a day of complete and utter shame.”
Over the past four years, gay people haven’t been in police’s line of sight because of the 2009 ruling, the
lawyer said. “Now it’s a big issue, now it’s going to be on the police radar,” said Mr. Gupta. “If they want to crack down on a
gathering of gay people they can.”
Colin Gonsalves, a vocal human rights lawyers and founder of the Human Rights Law Network, said this was
“a day of mourning for all Indians.”
Mr. Gonsalves said the 2009 High Court ruling that decriminalized gay sex was “one of the finest judgments
for minority rights and for inclusion.”
He also said that the Supreme Court was departing from its past approach on rights issues.
“This is a wrong and retrograde approach to fundamental rights. That the legislature should take it up and not
the court is an obsolete notion,” said Mr. Gonsalves. “The Supreme court has said 500 times in different
judgments that it is the duty of the court to intervene when there is a violation of fundamental rights.”
Mohammad Abdul Rahim Quraishi, a Hyderabad-based spokesman for the All India Muslim Personal Law
Board, one of the groups that appealed against the 2009 decision, said the Supreme Court had made the right
“We are very happy with the judgment,” said Mr. Quraishi. “There is no space for homosexuality in our social
setup. It is a sin, it is a heinous crime.”
K. Radhakrishnan, a lawyer representing Trust God Ministries, another petitioner against the 2009 High Court
decision, also praised the court.
“Homosexuality is a Western phenomenon. It has polluted the minds of young Indians,” said Mr.
Radhakrishnan. “The court has recognized this. We are very grateful.”
Today’s Supreme Court decision came in response to a case brought in 2001 to challenge Section 377 of the
Indian Penal Code, 1860, which outlawed homosexual acts.
Groups working on HIV prevention said the 19th -century provision made their work difficult because people
were reluctant to identify themselves as gay given that the law criminalizes gay sex, which is punishable with
up to 10 years in jail. Here’s the full text of the provision:
377. Unnatural offences.–Whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal,
shall be punished with 1*[imprisonment for life], or with imprisonment of either description for a term which
may extend to ten
years, and shall also be liable to fine.
Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in
During the hearing lawyers for both sides argued over the definition of “against the order of nature.” Click on
the link for a primer of the law on homosexuality in India.
Meenakshi Ganguly, the South Asia director of the U.S.-based Human Rights Watch, called the judgment a
huge setback for gay rights across Commonwealth countries that inherited Victorian law criminalizing
homosexual acts during British colonial rule.
Countries such as Malaysia, Indonesia, Bangladesh, Pakistan, Bhutan and Sri Lanka, among others, have
some version of this law on their statute books, Ms. Ganguly said. Australia, Fiji, Hong Kong and New Zealand
are countries that had the law, but abolished it.
“Human rights advocates were looking to India to take the lead on this so that similar changes could be made
in other countries,” said Ms. Ganguly.
Manak Matiyani, 29, has been involved with the Delhi Queer Pride organizing committee for the last two years
and is a gay rights activist.
“We were hoping for a favorable judgment, but this is far from being progressive. I think it’s a completely
ridiculous judgment to hang on to a piece of legislation that is ancient and archaic to say the least,” said Mr.
“We will oppose it, we will be out on the streets. We are going to continue rallying for this cause like we have
been in the past,” he added.
The members of the Delhi Queer Pride community will protest against the Supreme Court’s judgment in
central Delhi today, calling it a “Black Day” for gay rights in the country.
Many groups on Wednesday, while praising the Supreme Court’s decision, called homosexuality a foreign
“We should not encourage homosexuality in our society. It is against the laws and customs and harmful to
people in India’s civilized society,” said Zafarul Islam Khan, president of the All India Muslim Majlis-e
Mushawarat, an umbrella body of Muslim organizations in the country.
Mr. Khan, who describes himself as a “staunch” opponent of gay rights added, “We had gone too far by
encouraging gay rights earlier. We are a traditional-oriental society and must not follow into the footsteps of
the Western society. Today’s judgment upholds our belief against such harmful practices.”
Amnesty International, a U.K.-based human rights group, criticized the Supreme Court’s ruling on
Wednesday, calling it “a black day for freedom in India.”
“This decision is a body blow to people’s rights to equality, privacy and dignity,” said G.
Ananthapadmanabhan, chief executive for Amnesty International India. “It is hard not to feel let down by this
judgement, which has taken India back several years in its commitment to protect basic rights.”
“Saying I’m disappointed is an understatement. Today’s India doesn’t want this, this is not today’s India,” said
Derek O’Brien, a Trinamool Congress lawmaker. Mr. O’Brien signed an open letter in 2006 that said Section
377 of the Indian Penal Code “that criminalizes same-sex love between adults, should be struck down
I was pretty sure the Delhi High Court ruling decriminalizing homosexual acts would be upheld, “that’s what
makes it even more disappointing,” Mr. O’Brien said.
Indira Jaising, additional solicitor general of India and co-founder of the Lawyers Collective rights group, which
has worked extensively on decriminalizing homosexuality, said the court had failed to understand the law.
Anand Grover, co-founder of the group, is the lawyer that represented Naz Foundation (India) Trust, the group
that in 2001 challenged an Indian law that criminalized gay sex.
“I think it’s an erroneous interpretation of the Constitution of India,” Ms. Jaising told reporters outside the
Supreme Court Wednesday.
“The court should have recognized that we live in the 21st century. Each individual has the right to choose
their sexuality,” Ms. Jaising separately told The Wall Street Journal.
“Every human being has the right to live their life the way they want to live it. It’s not just disappointing, it’s
almost contrary to the constitution of India,” she added.
The Naz Foundation (India) Trust brought the lawsuit that led to the 2009 ruling that decriminalized
homosexual acts and had fought the recent challenge by religious groups to the decision. On Wednesday the
founder of Naz, which works on HIV-prevention, described the Supreme Court’s ruling as horrible.
“It is just so regressive. It makes no sense,” said Anjali Gopalan, who is also executive director of Naz.
Asked how the ruling would affect the group’s health programs, Ms. Gopalan said: “I don’t know. We’ll have to
wait and see. I’m too upset to think.”
Colin Gonsalves, a human-rights advocate, said that legal options haven’t been exhausted. Lawyers could file
a “curative” petition before a larger bench of the Supreme Court. A curative petition is a request to fix an error
of judgment. Mr. Gonsalves said the decision “would not stand whatsoever” before another bench.
Meenakshi Ganguly of Human Rights Watch said that instead of relying on the judiciary, India’s Parliament
should repeal the law criminalizing gay sex before it dissolves ahead of national elections due by the end of
May next year.
Lawmakers overlooked a “historic opportunity” when revamping the country’s colonial-era sexual assault laws
earlier this year. That would have been a good time to simultaneously address the law criminalizing gay sex,
she said. “Perhaps they didn’t think they could muster parliamentary support,” she said.
India’s government hasn’t issued an official reaction to today’s ruling. But Ms. Ganguly noted that it was
religious groups that brought the challenge to the 2009 ruling that resulted in today’s decision – and not the
Laksh Arora, a 25-year-old marketing professional based in Delhi, came out to his family earlier this year. He
says that even though his decision was not influenced by the law, the Supreme Court’s judgment is going to
be a huge setback for people who are still seeking acceptance.
“This is horrifying. We need to start our battle for our rights from scratch,” said Mr. Arora.
He added that there had been an immense amount of hope for a favorable judgment. “But the country’s top
court didn’t act as sensibly as the High Court,” he said.
Pavitra Rastogi, 38, a New Delhi-based graphic designer who is openly gay, broke down crying outside court
“Our lives have been made unconstitutional today. This judgment has thrown us back to the dark ages,” he
told The Wall Street Journal.
Akshay Khanna, 37, an anthropologist at U.K.-based University of Sussex traveled from the U.K. to hear the
“Where is equality in this country?” Mr. Khanna said. “This is a nightmare. Are we not human, do we not have
Arvind Grover, a lawyer for Voices Against 377, a New Delhi-based nonprofit and one of the respondents to
the challenge, said that the court’s decision was unexpected.
“It’s a dark day for the LGBT community,” Mr. Grover said.
Shaleen Rakesh, the director of New Delhi-based India HIV-AIDS Alliance, was part of a Naz Foundation team
that brought the petition that led to the Delhi High decriminalizing homosexual acts in 2009.
“This is shocking. It’s unacceptable. It is very, very regressive. World over positive judgments are being made
for the rights of the gay community. This is the last thing expected from the world’s largest democracy.”
“But we will not give up. The fight for equality will continue.”
Anand Grover, a lawyer for Naz, said: “We fail to understand what led to this judgment. No reasoning was
given by the court.”
“We had thought this would be a celebration. “Nobody expected this. It’s a huge, huge setback.”
#Sec377 became the top trend on Twitter in India shortly after the Supreme Court came out with its ruling
banning gay sex. Many people expressed their anger against the court’s decision while some backed the
move. Here is a roundup of the reactions on the micro-blogging site
A Delhi High Court ruling by Justices Ajit Prakash Shah and S. Muralidhar in 2009 carved out an exception for
consenting adults regardless of sexual orientation from a provision of the penal code that banned sex acts
“against the order of nature.” It was hailed as a far-sighted and visionary ruling by rights groups. Here are
excerpts of key portions of that judgment . Emphasis added by The Wall Street Journal.
“The impugned provision in Section 377 IPC criminalises the acts of sexual minorities particularly men
who have sex with men and gay men. It disproportionately impacts them solely on the basis of their sexual
orientation. The provision runs counter to the constitutional values and the notion of human dignity which
is considered to be the cornerstone of our Constitution. Section 377 IPC in its application to sexual acts of
consenting adults in privacy discriminates a section of people solely on the ground of their sexual
orientation which is analogous to prohibited ground of sex. A provision of law branding one section of people
as criminal based wholly on the State’s moral disapproval of that class goes counter to the equality
guaranteed under Articles 14 and 15 under any standard of review…”
“…If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is
that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained
in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally
displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those
perceived by the majority as “deviants’ or ‘different’ are not on that score excluded or ostracized.
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity
and nondiscrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In
our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the
popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of
equality and that it is the recognition of equality which will foster the dignity of every individual.
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is
violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to
govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we
mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be
able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend
the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we
believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the reopening
of criminal cases involving Section 377 IPC that have already attained finality.”
Corrections & Amplifications: An earlier version of this entry referred only to one of the authors of the 2009
High Court ruling. The ruling was delivered by Justice Ajit Prakash Shah and S. Muralidhar.
“Now our children will be harassed more than ever,” Shobha Doshi, 61, a Mumbai-based cancer counselor,
told The Wall Street Journal. Ms. Doshi was among a group of parents that had signed a petition in support of
the 2009 ruling that was submitted to the Supreme Court during its hearings. “I feel sorry for the state of affairs
in our country.”
Ms. Doshi’s son, a 35-year-old software engineer based in Atlanta, came out to her eight years ago. Her
relatives, she said, eschewed him.
“Their first reaction was, ‘Keep him away from our children. He’ll corrupt their minds too.’”
Apphia Kumar, a 29-year-old student, who recently moved from the western city of Pune to New York, says
she came out as a bisexual four years ago and has been a vocal advocate for bisexual inclusion and visibility
“The verdict affects us all, gay, bisexuals, transsexuals and transgenders. It is an eye opener for our
community,” Ms. Kumar said.
She ran a volunteer-based support group called ‘Birds of a Feather’ for gay people in Pune and said that the
community needs to “rethink what we are doing right now.”
“We need more leaders in more cities across the country,” she said, adding that the Supreme Court’s decision
“robbed people of their right to love and live their lives.”
Ashok Row Kavi, chairman of Humsafar Trust, a Mumbai-based group that works on gay and transgender
issues, described the Supreme Court judgment as anti-people and anti-progressive.
“We are very angry and disappointed. People of this country are progressive, we have tons of support. But the
judge has driven us back,” Mr. Kavi said.
He added the court’s ruling would affect the health programs that aided the gay community. “What is more
frightening is that the judge has torpedoed the most successful HIV program,” Mr. Kavi said.
The original challenge to the criminalization of gay sex in India was brought by health groups who argued that
the provision prevented HIV patients from going public about their sexuality and seeking medical help,
because they feared the legal consequences.
“Section 377 suffers from no constitutional impunity,” Justice G.S. Singhvi, the senior of the two-judge bench
constituted to rule on the matter told a packed courtroom, according to lawyers involved in the case. “The
judgment of the Delhi High Court is reversed,” he added.
Subramanian Swamy, a politician with the Bharatiya Janata Party, said that homosexuality was a malfunction
of the human body and should be treated medically.
“I welcome Supreme Court judgment holding homosexuality as illegal,” Mr. Subramanian told The Wall Street
Journal in an email statement after the Supreme Court judgment.
“It is no accident that men and women are born in equal proportion. Moreover survival of the human race
requires one man one woman cohabitation,” he added.
Any behavior which disturbs this natural selection should be regarded as deviant and treated as illegal, Mr.
“The government and corporates must fund research to find a cure for homosexuality at the earliest. It is a
malady that should not be celebrated but cured with compassion,” he said.
The Indian Supreme Court, described by legal experts as adopting an “activist” bent in recent years, has over
two decades greatly expanded its role as a protector of rights by interpreting constitutional provisions liberally
and weighing in on policy questions it has deemed to be “in public interest.”
This approach has raised questions about the separation of powers in India, with government officials
routinely blaming the court’s judges for over-reaching and impinging on executive territory. Among other
rulings, the court has halted appointments to federal bodies and cancelled licenses issued by the government.
But activists and rights campaigners have come to see the Supreme Court as an ally, and as an institution that
can act comparatively swiftly at a time when Parliament is perpetually paralyzed because of partisan gridlock.
There are 30 Supreme Court justices, but as of Thursday, the court will have one less judge when Justice G.S.
Singhvi, the senior judge of the two-judge bench that heard this case, retires.
The court is credited with spearheading far-reaching environmental policies, for instance, by ruling that the
Constitutionally-guaranteed right to life includes the right to a clean and healthy environment. It has leveraged
this approach to introduce sweeping measures, from cancelling mining licenses awarded by the government
to directing state officials to compel Delhi’s buses and auto rickshaws to switch to cleaner fuel.
In Wednesday’s judgment, activists said, the court appeared to take a conservative approach and one of strict
constitutionality, which they say is out of character given the court’s recent judgments. The full judgment has
not been posted yet, but lawyers involved in the case say that the court said that legalizing homosexuality is a
matter that must be addressed by the legislature.
In a televised interview, additional solicitor general Indira Jaising said that in the last five years the court had
seldom deferred to Parliament or the executive, even when tackling questions of policy. Then “why when it
comes to human rights?” she said.
Read this Wall Street Journal piece on India’s Supreme Court.
Rashid Alvi, a senior leader of India’s ruling Congress party, said his party respected the court’s judgment. The
Indian Parliament can overrule the Supreme Court’s decision by tabling a bill which legalizes homosexuality.
“We have no plans to do so, at least in the near future,” Mr. Alvi added.
Actor Mia Farrow, on her verified Twitter account, called Wednesday a “very dark day for freedom and human
rights as Indian Supreme Court rules to criminalize homosexuality.”
“Canceled trip to India. My wife and I would not feel welcome there,” she then tweeted, although it wasn’t clear
that Ms. Farrow was actually slated to travel to India, since she followed that up with a tweet that said: “Wellwhen
I have a wife- we won’t be going to India.”
With or without wife, perhaps Ms. Farrow, who was formerly married to Hollywood director Woody Allen,
should consider Nepal instead. Since Nepal was not a British colony, it didn’t inherit the Victorian-era law
banning sex that is “against the order of nature.”
Since 2011, the Himalayan country has recognized a “third gender” on its census.
That same year, a Hindu temple in Nepal hosted a public wedding for a lesbian couple.
And in 2012, the country was planning its first LGBT Olympics.
“Nepal has progressed a lot compared to other South Asian countries in giving equal rights to LGBT people
and Nepalis have been very accommodating to diversity,” Sunil Babu Pant, an openly gay legislator told The
Wall Street Journal at the time of the 2011 wedding, which he helped organize. “It is not like the U.S. and India
where religious extremists oppose LGBT rights.”
Kuldeep Dhatwalia, the spokesman for India’s Home Ministry, which was asked to present its views on
homosexuality before the Supreme Court, said it was too early to comment on Wednesday’s judgment.
“We will be in a position to take a stand only after we study the court’s decision,” Mr. Dhatwalia said. The twojudge
bench that issued the ruling is yet to make their reasoning public.
Anil Srivatsa, who launched India’s first radio station tailored to the lesbian, gay, bisexual and transgender
audience earlier this year, said he was disappointed with the Supreme Court’s ruling.
“The community has to live criminalized and fight this fight, which has no end date,” Mr. Srivatsa said.
“Parliament can drag this on for their political gains, not wanting to commit on something as sensitive as this,
especially in the run up to election. But the government has to step up,” said Mr Srivatsa, chief executive of
Radiowalla.in, an online radio portal operating over 30 channels including Q Radio.
Asked if there were plans to stop operations at the channel, which is based in Bangalore, because of the
ruling he said:
“We’re still on. Our job is to be a reflection of a certain section of society and I don’t see why that should be
criminal. My intent personally is to keep it going.”
Harish Salve, a senior Supreme Court lawyer, said he was disappointed by the verdict. “It sits ill with the
liberal proactive rights approach taken by the court,” Mr. Salve said in an email interview.
He said that while the court has always shown deference to the legislature, it has used a different tack when it
came to core constitutional values. “In the field of human rights, jurisprudence grows through the courts, and
leaving it to Parliament is a fundamentally flawed approach,” Mr. Salve said.
After the Supreme Court announced its ruling this morning, some activists said they would continue their fight
for gay rights “inside and outside the court.” Today’s decision isn’t the last stop, legally speaking.
Additional solicitor general Indira Jaising, India’s top federal female lawyer, said that there were two
possibilities open to Naz Foundation (India) Trust, the aggrieved party in this case, since it had wanted the
High Court ruling legalizing gay sex to remain in place. Ms. Jaising said Naz could appeal today’s judgment by
filing a review petition. That would come up for hearing before the same bench of judges that issued this
morning’s ruling, sort of. Since Justice G.S. Singhvi retires Thursday – he was the senior judge on the bench
– a new judge would have to join Justice Sudhansu Jyoti Mukhopadhaya to hear the review petition.
If the review petition is rejected or fails, said Ms. Jaising, Naz could file a “curative” petition, which would go
before a larger bench, typically with five judges on it. The court laid out its thinking behind allowing for this
second form of legal recourse in an April 2002 judgment on the question of “whether an aggrieved person is
entitled to any relief against a final judgment/order of this Court, after dismissal of review Petition.”
“We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of
human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration
of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but
also obligatory both legally and morally to rectify the error,” said the court. “Though it is essentially in public
interest that a final judgment of the final court in the country should not be open to challenge yet there may be
circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to
judicial conscience and cause perpetuation of irremediable injustice.”
Meenakshi Lekhi, a spokeswoman for the opposition Bharatiya Janata Party, said the debate – and litigation –
surrounding Section 377 was “superfluous.” Ms. Lekhi argued that the law criminalizing gay acts did not, in
practice, affect those engaging in consensual acts, but was aimed at punishing those guilty of non-consensual
sex or sexual assault on young men. These crimes are not covered under India’s existing rape laws – which
only apply to female victims.
“For every criminality, there has to be a victim,” Ms. Lekhi said. “ If an act – be it homosexual or heterosexual –
is consensual, there is no victim, so there is no complainant and no crime.”
Ms. Lekhi said Wednesday’s verdict was correct, arguing, “We need Section 377 on the statute book,
otherwise under which provision will you bring to book those who indulge in acts of exploitation?”
Advocates for the repeal of the law, she said, were driven by the symbolism of parades and slogans rather
than focusing on how the law was actually used.
On the question of consensual sex, she said, “each person has the right to exist in the manner they like, and
that cannot be the subject of glorification or condemnation.”
G.S. Singhvi, one of the judges behind Wednesday’s Supreme Court verdict, retires Thursday. He has served
six years as a Supreme Court judge, during which time he has heard several high-profile cases, including the
2G spectrum licensing case. Click on the link to read more about that case.
Mr. Singhvi was born in the western Indian city of Jodhpur in Rajasthan in 1948.
In 1971, he finished his law degree from Rajasthan University and joined the legal profession.
During his nearly two decades as a lawyer, he represented several educational institutions, corporations and
He first served as a judge in 1990, on the Rajasthan High Court. Later, he was appointed as the chief justice
of the High Court in Andhra Pradesh in 2005.
On Tuesday, Mr. Singhvi, along with his fellow judge C. Nagappan, delivered a judgment limiting the use of
red flashing lights on cars by dignitaries and politicians– a symbol of power and authority.
“Use of signs and symbols of authority such as red lights, etc., is contrary to the constitutional ethos and the
basic feature of republicanism,” the judgment noted. It was well-received by the public.
Read Mr. Singhvi’s complete bio here.
Bollywood actress and social activist Nandita Das said she was disappointed with Supreme Court’s decision.
“This came as rude shock,” Ms. Das, who was in the middle of a film shoot when the news trickled in, said.
“We thought we had finally managed to come to speed with our archaic laws of 19th century. But this is a real
set back,” she added. Ms. Das, who played a lesbian character in the critically acclaimed 1996 movie
‘Fire,’ was hopeful that the Indian Parliament would table a bill to legalizing homosexuality.
“The good thing is that this will create a lot of public discourse around the subject which will not only put the
required pressure on the legislation but will also impact the mindset, the prejudice, the myths around
homosexuality,” she said. “We all need to put our voices and stand up to this injustice. This is against our
constitutional rights. “
The U.K. announced Tuesday that same-sex marriages will be allowed from Mar. 29, several months earlier
than expected, while from June, gay couples will be able to wed in some British consulates abroad.
Marcus Winsley, spokesman at the British High Commission in New Delhi, said there were very few countries
where British consulate staff have the right to marry people, and India was not on that list.
“We would not conduct marriages where countries would object to the marriage,” Mr. Winsley said.
“There are two sovereign countries that decide on their own legislation. The British have set out what they
think is right for them, and I presume India will continue to debate what it feels is right for its people,” he
The law that criminalizes gay sex was brought in when the British ruled India.
University of Glasgow sociology professor Matthew Waites, an expert on laws pertaining to homosexuality in
nations that were part of the British empire, said that Wednesday’s decision by India’s Supreme Court was the
“worst setback that the global movement for human rights related to sexual orientation has faced in recent
The 2009 High Court judgment that legalized gay sex was a very positive expression of the Indian nation’s
commitment to human rights and freedom of expression and was based on the Constitution of India, said Mr.
Waites, who is co-editor of “Human Rights, Sexual Orientation and Gender Identity in the Commonwealth,”
published earlier this year by the University of London’s Institute of Commonwealth Studies.
“India was one of very few examples of states having decriminalized same-sex behavior in the global south. It
was a beacon, together with South Africa, the Bahamas and Vanuatu,” he said.
“Section 377 is a legacy of British colonialism and is the reason that more than half of the 76 states worldwide
that criminalize homosexuality are in the Commonwealth,” Mr. Waites added. Some 41 countries that were
former colonies still have statutes like India’s Section 377, which prohibits sex “against the order of nature.”
“What is concerning is that the judgment may be expressing views in India that see Section 377 as reflecting
Indian tradition [rather than a colonial law]…but there is a strong body of academic work based on literary
texts that demonstrates the existence of same sex love and marriage going back centuries in India,” Mr.
Although some in India oppose homosexuality on the grounds that it is not a part of Indian culture, and is a
Western import, Hindu epics have several examples of same-sex relations and transgender characters,
according to mythology expert Devdutt Pattanaik. A large majority of Indians practice Hinduism.
However, the epics don’t always portray same-sex acts positively: For example, Mr. Pattanaik writes that
Hanuman, the monkey god, is believed to have seen women kissing and embracing other women in the
kingdom of Ravana, who epitomizes evil in the Hindu epic of Ramayana.
Still the fact that there are references to lesbians and gay men in ancient texts like the Manusmriti suggest that
there was awareness of homosexuality in ancient India.
Characters whom today might be described as transgender are portrayed with greater acceptance, however.
There are many instances of men who become women and vice versa.
For example, Shikhandini, a female character in the Hindu epic Mahabharata, was raised as a man and later
married a woman.
S.K. Tijarawala, one of the petitioners who called for the ban on consensual gay sex to be reinstituted,
welcomed the court’s decision. “God has created men and women with a purpose. Homosexuality is a
disgrace to human life, to God,” he said. Mr. Tijarawala is an aide to popular yoga guru Baba Ramdev.
“Homosexuality is a disease,” a tweet from Mr. Ramdev’s verified Twitter account read shortly after the
Supreme Court’s judgment.
Meenakshi Lekhi, a spokeswoman for the Hindu nationalist Bharatiya Janata Party, earlier told The Wall Street
Journal that an Indian law criminalizing gay sexual activity did not, in practice, affect those engaging in
consensual acts. Instead, she said, it had been used to punish those guilty of non-consensual sex or sexual
assault on young men.
Anjali Gopalan, founder of the Naz Foundation (India) Trust, whose petition led to a 2009 High Court ruling
legalizing homosexual acts – which was set aside today — said Ms. Lekhi’s argument wasn’t correct.
Even though actual prosecutions may not have taken place, the law was used by police to threaten and
harass gay men meeting in public spaces and also as a tool to extract bribes, Ms. Gopalan said. “If two men
are together in public, the police will throw Section 377 at them to make a quick buck,” Ms. Gopalan said.
Also, Ms. Gopalan argued, the law hampered public health initiatives to combat AIDS and other diseases.
On the question of punishing non-consensual sex, Ms. Gopalan said the High Court’s 2009 ruling didn’t repeal
the law altogether, but merely carved out an exception for consenting adults. “You could still use it to punish
the rape of men,” she said.
The Supreme Court’s 98-page 377 judgment is now up.
The court said the argument from the Naz Foundation that the law was being misused wasn’t good enough
grounds to tamper with a piece of legislation.
“Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate
harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In
our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the
section is misused by police authorities and others is not a reflection of the vires of the section,” the judgment
“It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section
377 IPC,” the bench added.
The judges closed by saying, “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality
and the declaration made by the Division Bench of the High court is legally unsustainable.”
“The appeals are accordingly allowed, the impugned order is set aside,” they wrote.
“While parting with the case, we would like to make it clear that this Court has merely pronounced on the
correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found
that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the
competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from
the statute book or amend the same as per the suggestion made by the Attorney General,” they wrote.
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