India's gay sex ruling sets a precedent for other nations

Tuesday, 11 September 2018 12:48 GMT

* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

India's move to decriminalise gay sex is a model for countries to adopt to update other laws that no longer reflect their values and societies, or indeed their constitutions

 Any supporter of universal human rights will have felt heartened last week to hear that justice has finally arrived for India’s LGBT community.

On Thursday, a five-judge bench of the Indian Supreme Court ruled unanimously to strike down Section 377 of the Indian Penal Code. The old colonial law targeted consensual, sexual relationships in private between adults of the same sex.

More than this, Section 377 held India’s entire lesbian, gay, bisexual and transgender (LGBT) community under siege. Until last week, it was a criminal offence for Indians in gay relationships to be intimate with one another: something taken for granted by straight people in every country in the world.

India, often described as the jewel in Britain’s colonial crown, was also the first place to which the empire’s prolific penal code was exported in 1861. Similar laws then spread under British colonial administrators across all continents of the world.

Since then, India has gone from colonial subject to emerging economic superpower. Yet Section 377, with its explicit homophobia, tyrannised India’s LGBT community for more than 150 years.

There is a symbolic significance in the first nation beleaguered by the empire’s anti-gay laws finally shedding this “colonial ghost” as one judge described Section 377.

The ruling will directly affect millions of people. Following the judgment, one-fifth of all LGBT people in the world are no longer living in fear of being arrested.

In a wonderfully affirming and progressive ruling, the judges gave a cast iron confirmation of the human rights of LGBT Indians.

"We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination,” the ruling stated.

"Non-acceptance of [a person’s identity] by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual.”

Another passage described Section 377 as having “a chilling effect on an individual‘s freedom of choice”.

The petitioners in this case include artists, journalists and businesspeople, but the original challenge to Section 377, back in 2001, was launched by visionary civil society activists at the Naz Foundation. They achieved a ground-breaking judgment in the Delhi High Court in 2009, only to have it overturned in a shock set-back in the Supreme Court in 2013.

The journey to justice has been easier elsewhere. Commonwealth countries Seychelles, Mozambique and Nauru redrafted their outdated statute books, voluntarily decriminalising gay sex.

In addition to avoiding a lengthy and costly legal procedure, a benefit of this approach is that countries can update other laws that no longer reflect their values and societies, or indeed their constitutions.

For example, another dubious gift from the British Empire is legalised marital rape. In Britain, raping a spouse was outlawed in 1992, but, like Section 377 and its equivalents in other Commonwealth countries, several former colonies still maintain the law as it was in Victorian times.

The British government has recognised these shameful legacies of colonial laws. In April, UK prime minister Theresa May said the UK would support any Commonwealth government in reforming its laws that discriminate against LGBT people, women and girls.

She backed this with a £5.6m fund for the newly formed Equality & Justice Alliance, of which the Human Dignity Trust is a co-founding partner, to provide support for initiatives to reform discriminatory legislation.

But when progressive change will not come from states, litigation is an option human rights defenders have available to them, as the Indian Supreme Court judgment has so powerfully illustrated.

What the petitioners, beginning with the Naz Foundation, and their supporters in India have achieved is nothing short of phenomenal.

History will honour them, as do we.

Téa Braun is director of the Human Dignity Trust, a UK-based charity that supports those challenging laws criminalising adult consensual same-sex activity.


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