But Hindu, Muslim and Christian groups filed appeals in the Supreme Court, and in 2013, the court restored the law, saying that Parliament, and not the courts, should take up the issue. In 2009, a court in New Delhi ruled that the law could not be applied to consensual sex.
Guruswamy encouraged the judges to think of all the young gay people who did not want to follow that same road and spend their lives hiding who they really were.įor several years, Section 377 was in the cross hairs, with the courts going back and forth.
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Guruswamy spoke of the decades-long relationship between two older petitioners, Navtej Singh Johar and Sunil Mehra, and the sacrifices they had made in their personal and professional lives to keep their partnership secret. And they went beyond classic legal arguments. They pointed to similar hoary laws that had been toppled in the United States, Canada, England and Nepal, India’s smaller and poorer neighbor. In hearings in July, lawyers argued that the law was out of sync with the times and legally inconsistent with other recent court rulings, including one made last year that guaranteed the constitutional right to privacy. Though in recent years more gay Indians have come out, and acceptance of gay, lesbian and transgender people has grown to some degree, the fact that intimate behavior was still criminalized created much shame. In the 1860s, the British introduced Section 377 of the Indian Penal Code, imposing up to a life sentence on “whoever voluntarily has carnal intercourse against the order of nature.” The law was usually enforced in cases of sex between men, but it officially extended to anybody caught having anal or oral sex. India was intensely colonized during the height of the Victorian era, when the British Empire was at its peak and the social mores in England were austere. The law was often used as a cudgel to intimidate, blackmail and abuse.īut that culture of tolerance changed drastically under British rule. But for gays in India, prison was only one of the risks. The law banned sex considered “against the order of nature,” and thousands of people were prosecuted under it. But what made India stand out from most - at least until Thursday - was its application of an anachronistic law drawn up by British colonizers during the Victorian era and kept on the books for 150 years. Much of this may also be true in other parts of the world. Countless gays have been shunned by their parents and persecuted by society. Loved ones who try to rebel are often ostracized.
Many Indians are extremely socially conservative, going to great lengths to arrange marriages with the right families, of the right castes. And few suggested that other major victories, like same-sex marriage, were on the near horizon. Changing a law is one thing - changing deeply held mind-sets another. Still, however historic the ruling of the court, considered a liberal counterweight to the conservative politics sweeping India, gay people here know that their landscape remains treacherous. With restrictions on gay rights toppling in country after country, the ruling in India, the world’s second-most-populous nation, may encourage still more nations to act, she said. “This ruling is hugely significant,” said Meenakshi Ganguly, the South Asia director for Human Rights Watch.