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1861 Indian Penal Code prohibits “carnal intercourse against the order of nature”.

After much judicial and parliamentary to-ing and fro-ing, it now seems likely that India will repeal that part of the 1861 Indian Penal Code which, in effect, banned homosexuality. Section 377, based on the Buggery Act of 1533, has long been cited as an excuse to keep homosexual activity illegal in India, although since India became independent of British rule in 1947, the country has been free to repeal the legislation for more than 70 years.

India’s recent history of LGBT rights is, to say the least, chequered. In 2016, Parliament introduced the Transgender Persons Bill which opened the door for some of the most advanced trans rights in the world, covering employment, medical care, education, social welfare and even toilet facilities. There is currently one Indian mayor and one Indian MP living openly as trans.

Trans rights in India are far more progressive than gay rights

However, gay rights have not been so readily acknowledged. In 2009, the Delhi High Court decriminalised same sex relationships, citing Section 377 as “undermining constitutional values and the notion of human dignity.” Then, in 2013, the Supreme Court overturned that judgment, effectively re-instating the provisions of the colonial penal code overnight.

Following the Supreme Court ruling, an opposition MP attempted to decriminalise homosexuality through parliamentary legislation (rather than judicial precedent) but his Private Members Bill was voted down. Unfortunately, India’s ruling party views decriminalising homosexuality as something of a vote loser, so rather than risking a backlash from socially conservative voters, they have consistently refused to revoke Section 377, instead leaving the matter to the courts. In India, as in the United Kingdom and much of the Commonwealth, legislation is established either by parliamentary statute or by rulings by judges in court.

Jump forward to 2017, and the Supreme Court ruled that the right to privacy was fundamental, reopening the debate on the legality of homosexuality, with Justice Chandrachud stating that “LGBT rights are not so-called [as they had been in the 2013 ruling] but are real rights founded on sound constitutional doctrine.”

Now, it looks like tens of millions of Indians can look forward to a brighter future. Speaking last week, Justice Indu Malhotra stated that homosexuality “is not an aberration but a variation […] because of family pressures and societal pressures they [gay people] are forced to marry the opposite sex.”

So, don’t break out the rainbow bunting quite yet, but it would take a massive volte-face to derail the momentum towards the abolition of the regressive and cruel Section 377.

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Rob Harkavy

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