Section 377: How India brought an end to the criminalisation of its LGBT+ community

Decision to overturn 'irrational and indefensible' colonial-era law met with jubilation

India’s Supreme Court has unanimously ruled in favour of decriminalising homosexuality.

Chief justice Dipak Misra said Section 377 of the Indian constitution, which outlaws “carnal intercourse against the order of nature” and had been used as a legal pretext for the systematic oppression of the country’s LGBT+ community, was “irrational and indefensible”.

Justice Dhananjaya Chandrachud likened the denial of an individual's sexual orientation to denying their right to privacy.

The landmark judgment was met with euphoric scenes among the activists gathered outside the court house in Delhi, many of whom had campaigned on the issue for years.

But how did the moment finally come to pass?

Section 377 dates back to 1861 and the era of British colonial rule and has long been interpreted as referring to homosexuality, although its vague wording does not state that explicitly.

The law – a descendanto f Tudor England’s Buggery Act 1533, introduced under Henry VIII – has only ever been enforced in about 200 cases, according to today’s judgment, but it has nevertheless enshrined the state’s official disapproval of LGBT+ sexualities and carried the threat of a 10-year prison sentence.

The country previously came close to altering the law in 2009 when the Delhi High Court found it unconstitutional and in breach of citizens’ basic rights, but the decision was then overturned by a small panel of Supreme Court judges in 2013 on the basis that repealing it was a matter for parliament.

On 11 July this year, the Indian government told the Supreme Court the decision was down to them and would not be contested, a statement made to avoid a repeat of the 2013 impasse and one that risked upsetting conservative Hindus among Narendra Modi’s ruling Bharatiya Janata party, who place a premium on traditional values.

Lawyers arguing for the repeal of Section 377 before the Supreme Court successfully made the case that sexuality is innate and not a matter of choice and pointed to examples from antiquity, Indian mythology being rife with erotic images of same-sex relations and tales of gods changing their gender. The Kama Sutra dedicates an entire chapter to the subject.

The dominance of conservative attitudes since the Raj are the legacy of the Victorian morality imported and imposed on the Indian people by their imperial rulers, they suggested.

The first attempt to repeal Section 377 was made in 1991 by Aids Bhedbhav Virodhi Andolan (ABVA), India’s first Aids activist movement, which compiled a dossier outlining the problem with the constitutional clause entitled, Less than Gay: A Citizen’s Report.

“Gay Rights in India”, an influential 1996 article in the academic journal Economic and Political Weekly by Vimal Balasubrahmanyan, also played a hand in whipping up institutional support for the cause.

Depictions of LGBT+ lifestyles have become more common in Bollywood movies and on Indian television since the turn of the millennium, doing much to raise awareness of gay rights issues and challenge entrenched homophobia.

The Naz Foundation picked up the baton from ABVA and has petitioned for Section 377’s repeal for 17 years.

“They have opened the door to discussing rights,” the organisation’s founder, Anjali Gopalan, told The Independent.

“They have apologised to the gay community and said copies of the judgment will be handed to every police station.

“It is the best judgment we could have hoped for.”