The end of a colonial law
Five judges, one unanimous ruling: how India finally broke with Section 377 in 2018.
On 6 September 2018, the Supreme Court of India declared unconstitutional a criminal provision that was older than the republic itself. Section 377 of the Indian Penal Code dated from 1860 and had been introduced by the British colonial administration. It criminalised so-called carnal intercourse against the order of nature and threatened imprisonment up to and including a life sentence. In practice it was aimed above all at sex between men.
Five judges decided unanimously. The case was heard under the name of the dancer Navtej Singh Johar, who had gone to court together with other openly lesbian and gay people. The bench found that the provision violated the fundamental rights to equality, dignity and free personal development, and described it as arbitrary. Justice Indu Malhotra stated that history owed the queer community an apology for the suffering it had had to endure over generations.
The road there had been long and winding. In 2001 an AIDS organisation in Delhi had brought a case because the provision made its prevention work practically impossible. The Delhi High Court ruled in its favour. Four years later the Supreme Court overturned that judgment and declared that reform was a matter for parliament. For many people who had come out in the meantime, it was a blow. Only in 2018 did the court return to its own case law.
The effect reached far beyond India. Section 377 served the Empire as a template. Similar provisions still stand in criminal codes in Asia, Africa and the Caribbean. Incidentally, the provision has not disappeared entirely: non-consensual acts and sexual acts with animals remain punishable. But for around one sixth of humanity, that Thursday ended the criminalisation of their own desire.