(Bangkok/Geneva, 6 September 2018) – Today is a historic day, not only for gay, lesbian and bisexual people in India, but also for the whole community of rainbow spectrum. The Indian Supreme Court has ruled that Section 377 of the Penal Code, which had been used to target the LGBTI community in the country, was unconstitutional.
The Five Judge Bench has declared Section 377 unconstitutional. Chief Justice Dipak Misra said it is a unanimous verdict expressed through four separate but concurring judgements.
Although not many people were arrested under this law, it was used to blackmail trans people, hijras, and men who engaged in sexual activity with other men, with trans and hijra sex workers frequently being harassed by the police. Although the law was technically only applicable to men, also lesbian and bisexual women in India were in fact subject to it, and to its resultant stigmatisation.
“The repeal of this law will open the door for the larger LGBTI community, a larger discourse to ensure fundamental rights in India, This ruling also ensure the bodily integrity, sexual orientation of Indian Intersex community, even though the Indian government haven’t officially recognizes the people born as Intersex or living with Intersex traits” said Gopi Shankar Madurai, Founder of Srishti Madurai LGBTQIA+ Student Volunteer Movement in India, also the intersex representative from the Asian Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). Gopi goes by the gender-neutral pronoun ze. “With this ruling, everyone in India, not just the LGBTI community, will be free from fear of prosecution by the ambiguous colonial law,” ze added. "Everyone will have their basic rights guaranteed once again for the first time in centuries."
"We rejoice with all sexual, gender and sex minorities communities in India," commented Ruth Baldacchino and Helen Kennedy, co-Secretaries General of ILGA. "As of today, a shameful part of an enduring colonial legacy is finally history. We hope that this ruling, which was made possible by the tireless work of many human rights advocates, will have an impact also on other countries around the world where our communities continue to live under the shadow of oppressive criminal laws, especially those that share a common legal heritage with India, as far afield as Africa, the Pacific and Caribbean. Today, the Supreme Court reaffirmed, loud and clear, that there is nothing criminal in our bodies, identities and loves."
India is the first and the only country in the Indian sub-continent decriminalizing consensual same-sex sexual activity. The only other country in South Asia where such relations are not criminalized is Nepal, whose Supreme Court in 2007 ordered the government to identify all the laws that discriminated against LGBT people, and to investigate legal recognition of same-sex relationships.
“It shows that the tide is turning and history is on our side,” said Manisha Dhakal, Asian representative of ILGA board. She is also the Executive Director of Blue Diamond Society, the largest organization led by and serving the LGBTI community in Nepal. “Order from our Supreme Court paved the way for better inclusion of LGBTI people, and notably the protection of LGBTI rights in our current Constitution,” she added.
“We hope and will make sure that other countries will follow suit in overturning this remnant from the colonial law,” said Mani AQ from Naz Pakistan, the other Asian representative of ILGA board. Homosexual activity is still a criminal offense in several other countries in Asia, including Afghanistan, Bangladesh, Bhutan, Brunei, Indonesia (Aceh), Iran, Iraq, Kuwait, Malaysia, the Maldives, Myanmar, Oman, Pakistan, Qatar, Saudi Arabia, Syria, Singapore, Sri Lanka, UAE, and Yemen.
Lieu Anh Vu (ILGA Asia)
Phone number: +66 (0) 938690693
Daniele Paletta (ILGA World)