In an historic move for LGBTQ+ rights, India’s Supreme Court have agreed to re-examine a law passed by the British during the colonial era in the 1860s, which ruled sex between men illegal.
The court said it would take up a legal challenge by five high-profile Indians who said the colonial-era law created an atmosphere of intimidation.
“A section of people … who exercise their choice should never live in a state of fear,” said the court in its ruling on Monday 8 January, adding that “societal morality” was subject to change over time.
Section 377 of the Indian penal code bans homosexual acts as “carnal intercourse against the order of nature”, and allows for life imprisonment, though prosecutions for same-sex activity have been rare.
The three-judge bench clarified that it would be considering decriminalisation of consensual sex between gay, lesbian, and bi/pansexual adults — not sex between animals or children, which the law also forbids.
“Law copes with life and accordingly change takes place. Morality that the public perceives, the Constitution may not conceive of,” the bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud said.
Before Portuguese and British colonisation, India did not have any laws that discriminated against its LGBTQ+ citizens. As a result of their rule, however, societies were transformed through legislation into ones that frowned upon and discriminated against its queer and transgender populations. This attitude extends to other parts of South Asia after the 1947 partition too, like Pakistan and Bangladesh.