Indian Supreme Court Strikes Down ‘377,’ British-Era Law Criminalizing Gay Sex

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Ruling is a victory for millions in the country who have faced harassment and discrimination because of the more than 150-year-old law

NEW DELHI—India’s Supreme Court ruled Thursday that gay sex isn’t a crime, providing an important victory for millions in the South Asian nation who have long faced harassment and discrimination because of the more than 150-year-old law, known as Section 377.

The apex court overturned its own ruling from 2013 that the colonial-era law criminalizing gay sex wasn’t unconstitutional. That decision had set aside a lower court’s 2009 order that the law shouldn’t apply to consensual sex between adults in private.

Until Thursday’s court ruling, India—the largest democracy in the world—was among more than 70 countries including Afghanistan, Nigeria, Syria, Sri Lanka and Pakistan, where gay sex is illegal, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association, a Geneva-based rights group.

In India, the law banning gay sex was a provision in the Indian Penal Code that British rulers introduced in 1860. It stated that anyone having “carnal intercourse against the order of nature” shall be punished with imprisonment as well as a fine.

In a plea to the Supreme Court in 2016, five leading petitioners—a journalist, a chef, a dancer, a hotelier and a business consultant—asked the court to declare the law unconstitutional saying it violated their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality,” along with other fundamental rights that the India’s constitution guarantees to all its citizens.

The Victorian-era law, the petitioners argued, “forces LGBT persons to choose between either breaking the law or living a life without love or companionship, and being untrue to their natural selves.”

The law had found the most support from conservative religious leaders who have worked to block legal efforts to strike it down, most of them arguing in courts that homosexuality is a sin.

Rights groups say that while the risk of conviction under the law was rare, it created an atmosphere of fear in largely conservative Indian society. It also left LGBT people exposed to blackmail and harassment by authorities.

The 2016 petition to the Supreme Court that resulted in Thursday’s judgment said one of the petitioners had to abandon his plan to become a civil servant because he was apprehensive about his career prospects “because of criminalization of his sexual orientation.”

Gay rights are an increasingly public social issue in many Asian countries, especially where Islam is the dominant religion. In Malaysia, Prime Minister Mahathir Mohamad said Thursday that a lesbian couple flogged with a cane earlier this week by Islamic authorities in the northeastern state of Terengganu should have been let off with a warning.

“It is important that we show Islam is not a cruel religion that favors heavy punishment that humiliates people,’’ Mr. Mahathir said. The federal government he leads, however, has limited power over state-level application of Shariah over Muslims.