What the Overturning of Section 377 Means for India...and South Asia

On September 6th, 2018, the top court in India decided a landmark case which decriminalized same-sex intercourse throughout the country. The unanimous judgement, issued by a panel of 5 judges, comes after 157 years of legal discrimination against LGBTQ people in India, where a person engaging in consensual “carnal intercourse against the order of nature” could become the victim of widespread community shaming and even jail time. But how did India reach this point, what does it mean for Indian society, and how does this new freedom for Indian gays compare to the situation faced by their counterparts in other South Asian countries?

The fight against Section 377 in the Indian Penal Code is not new: in 2009, Delhi’s high court ruled against the law, making same-sex intercourse legal within the parameters of the city on the basis that the previous ban violated citizens’ constitutional right to equality before the law. But in 2013, as a culmination of protests targeting the apparent morality of that decision, a collaboration of Christian and Muslim religious organizations headed by a Hindu astrologer challenged the ruling in front of India’s Supreme Court. They argued that a “rebuttal was required” because the decision was in conflict with certain religious beliefs, and that furthermore, since Section 377 did not classify any particular group or gender, it was not in violation of India’s constitution. As a result, the issue was declared unfit to be decided by the judiciary, and homosexuality was recriminalized throughout India, remaining that way until last Thursday’s ruling.

This most recent push to end the discrimination imposed by Section 377 was popular in nature: more than 34 individuals from the Indian LGBTQ community filed writ petitions against Section 377 in the past two years alone. The arguments which turned the court, however, were those made in favor of the constitutional right to privacy and self-expression. In addition, those arguing against the provision presented the idea that there is an economic cost to stigmatizing and excluding LGBTQ people from Indian society. A 2014 World Bank study found that there were several reasons for this, including lower productivity of LGBTQ people in the workforce due to workplace discrimination, inefficient investment in human capital due to lower returns to education and discrimination in educational settings, costs because of health disparities linked to exclusion, and additional costs due to the social and health services required to address the effects of exclusion. Another argument in favor of the recent legislative change is that by overturning Section 377, organizations in India could help educate LGBTQ communities about safe sex practices. India has the third highest HIV epidemic in the world, which could partially owe to the fact that the criminalization of same-sex relations made it so that LGBTQ people were unable to access crucial information regarding sexual health for fear of imprisonment and social stigmatization.  

While India’s overturning of Section 377 represents a huge win for the gay rights movement in India and around the world, it does not necessarily mean that the social stigma against same-sex couples will end so easily: the 2006 World Values Survey in India found that 64% of people thought that homosexuality is never justified and just 14% said it was sometimes or always justified. While the survey is 12 years old, and much has changed in India since that time, negative attitudes towards the Indian LGBTQ community still exist. The attitudes towards homosexuality vary drastically with different populations within India—just as religious countries are more likely to express views in opposition to homosexuality, so are religious groups most often the loudest dissidents against the LGBTQ community in India. But even if there remain negative attitudes towards same-sex relations in India, last Thursday’s ruling is an important first step in refuting the idea that these negative social stereotypes are backed up by the law.

As Indian LGBTQ activists talk of the next step in their fight for complete equality—possibly the legalization of gay marriage—other South Asian LGBTQ communities remain persecuted by their respective countries’ legal codes. For example, while Bangladesh and Pakistan legally recognize more than two genders, allowing for relative tolerance of transgender individuals in a legal setting, homosexuality is illegal in both countries, carrying a punishment of up to 10 years imprisonment in Pakistan and a life sentence in Bangladesh—not to mention the social shame and rampant violence inflicted upon LGBTQ people in those countries. Hopefully these countries will look to India’s recent legal precedent as they consider their own penal codes in this regard.

Much remains to be accomplished in the advance of the gay rights movement in India, but the legal victory against Section 377 showed that the Indian LGBTQ community’s persistence paid off. One can only hope that this recent ruling will not follow the course of the 2009 Delhi judgement, but will remain precedent so that the Indian LGBTQ community advocates might continue their push for total equality in India and in South Asia more generally.