The homophobic shackles of colonialism have been shaken off this month, as India’s Supreme Court has struck down one of the world’s oldest bans on consensual sex between members of the same sex.
Chief Justice Dipak Misra said the law was ‘irrational, indefensible and manifestly arbitrary’. During their ruling, the justices said homosexuality was ‘natural’ and that the Constitution was not ‘a collection of mere dead letters’, and that it should evolve with time.
After weeks of deliberation and decades of struggle by LGBTTQIA+ Indians, the unanimous decision to decriminalise gay sex was followed by justices ruling that gay citizens will now be accorded all the protections of the Constitution of India. The South Asia director for Human Rights Watch Meenakshi Ganguly said ‘this ruling is hugely significant’ and believes that India’s ruling may encourage other nations to act, such as Bangladesh, Sri Lanka, Brunei, and Myanmar.
People throughout the country have celebrated the decision, the New York Times alleging that human rights activists in Mumbai showered themselves in confetti while Bangaloreans danced, kissed and hugged on the steps of the courthouse. Despite this elation and celebration, many Indians are still extremely conservative and countless members of the rainbow community have been ostracised by friends and family.
The now-overturned law, a legacy of British colonisers during the Victoria era, banned sex considered “against the order of nature”. Thousands have been prosecuted under it and the law, known as Section 377, has been used as a cudgel to intimidate, blackmail and abuse gay Indians for 150 years.
‘History owes an apology to members of the community for the delay in ensuring their rights,’ Justice Indu Malhotra said.
Menaka Guruswamy, one of the lead lawyers representing gay petitioners, said the court’s extension of nondiscrimination principles to gay people had laid a ‘very powerful foundation’.
‘This decision is basically saying: “You are not alone. The court stands with you. The Constitution stands with you. And therefore your country stands with you”’.