Moving One Step Closer To Decriminalizing Homosexuality In India

India has moved one step closer to decriminalizing homosexuality after the Supreme Court began a hearing challenging the colonial-era law that, among others things, prohibits consensual sexual relations between men, and following on the heels of an August 2017 ruling that declared all people have a “constitutional right to privacy” and “sexual orientation is an essential attribute of [that] privacy.”

Earlier this year, in response to a petition filed by individual and group activists and LGBT community members, a three-judge bench referred to the five-judge Supreme Court to review Section 377 of the Indian Penal Code which criminalizes homosexuality. While many politicians in India’s traditionally conservative government consider LGBT rights a non-issue and would not work to broaden those rights any further, the government has left the repeal of Section 377 up to the Supreme Court and stated they would respect the court’s decision.

Prior to British colonization, attitudes towards gender and sexual identity in India were generally thought to be much more relaxed, and while not necessarily celebrated, more accepted than they are today. But the British brought with them strict definitions of marriage, gender, and sex and consequently, Indian culture’s attitudes towards these issues also changed. In 1861, Section 377 of the Indian Penal Code was issued, criminalizing any sexual activities “against the order of nature,” which included sex between men, amongst other consensual sexual acts between adults.

A movement to repeal the law was lodged in 1991 by the AIDS activist group, AIDS Bhedbhav Virodhi Andolan, and spent years being debated in court. In 2003, the case was revived by another NGO, the Naz Foundation Trust. In 2009, the Delhi High Court eventually overturned the section of the law criminalizing homosexuality. However, appeals and petitions against the ruling, caused the Supreme Court to reinstate the law in 2012.

Currently, attitudes towards homosexuality in India are mixed, with religiously conservative groups against same-sex relations, while younger, more educated populations are more accepting. Those in smaller towns and more rural communities are also more likely to have negative views, while larger urban cities generally have higher LGBT populations and more LGBT-friendly resources, establishments, and rights/support groups. Based on 2012 government figures, there are at least an estimated 2.5 million LGBT people in India. This number, however, does not include those unwilling to identify themselves to the government (primarily due to fear), and so does not account for the total population. In the last decade, major urban centers have seen a shift in the visibility of the LGBT community, clearest in the increase of pride marches and parades in cities across the country – even though these events are considered to be more “Anglophone” (made up of more English-speaking, educated people).

However, violence against LGBT peoples is still commonplace, and much of this violence goes unreported due to many victims’ real fear of being prosecuted under Section 377.

India’s move towards decriminalizing homosexuality is pushing the country to become the liberal democracy it tries to show it is, and the accompanying cultural and societal shift – no matter how small –  will hopefully continue to change attitudes. However, while decriminalizing homosexuality is a start, its benefits will not be felt by those living in smaller, more rural areas, for many of whom, a law will make little difference for. Discrimination and ostracization for these people will continue, as long as homosexuality remains a taboo topic.

Ashika Manu