What India’s Decriminalization of Gay Intercourse Means for the Future of LGBTQIA+ Rights

In many countries around the world, LGBTQIA+ individuals are jailed and executed for being gay. In Pakistan, Bangladesh, and Uganda, being LGBTIA+ can result in life sentences in prison.[1] In other countries, such as Afghanistan, Nigeria, Tonga, and Malaysia, LGBT individuals can be whipped or executed for their same-sex relations. In Tanzania, HIV services for LGBTQIA+ people were shut down since they were cited as promoting homosexuality. But what do all of these countries have in common?

The answer is Section 377 of the British colonial-era law that prohibits “unnatural acts,” such as homosexual relations.[2] This colonial-era law, which still exists in 41 of the former British colonies, such as the ones listed prior, prevents LGBTQIA+ individuals from being openly homosexual.[3] However, many colonies are now overturning Section 377.[4] To take one particular case, it is notable that until recently, homosexual intercourse was illegal in India. The colonial-era law cited homosexual intercourse as being “against the nature of man.” However, in a unanimous decision by the Indian Supreme Court, Section 377 of the Indian penal code was struck down, which affirmed the right for homosexual couples to have sexual relations.[5] But what does this court decision signify for the future of gay rights in India as well as other formerly British colonies that still have Section 377 in their penal codes?

The Indian Supreme Court decision that invalidates Section 377 of the colonial era law represents a success for the LGBTQIA+ community. It was the most populous country to have a law against gay sex and the judgment reflects a “rapid social change in India, where only five years ago the top court upheld the same law.”[6] In part, this is due to “economic and technological changes” that have resulted in a shift in thought. Access to phones and other technological devices have opened “young Indians to global trends,” such as the opportunity to view television shows with LGBTQIA+ characters that strive to challenge stereotypes associated with the LGBTQIA+ community.[7] While the law that banned same-sex intercourse was upheld 5 years prior, social developments have enabled new trains of thought to influence the Indian populace, where it is now more acceptable to be a part of the LGBTQIA+ community.

Granted, this is just a stepping stone to equality. The ability to have sex without prosecution does not nullify the lack of equal rights, but it does signify that LGBTQIA+ identities are becoming more accepted. “The prominence of gay and lesbian plaintiffs in the litigation and media coverage helped significantly to humanize the issues for the court—to move the conversation from one about an abstract statute to one about the daily harms this colonial-era law inflicted on the lives of gay people throughout India.”[8] Thus, activists in India are pledging to seek “legal protection from violence and abuse and to seek the right to marry and adopt children” upon this notion of humanization and acceptance of their identities.

Interestingly, the change in perception of how to approach cases in colonial-era laws has shifted as well. For example, Arundhati Katju, a Columbia Law School alumna who worked on the legal approach for the Indian Supreme Court case, stated that “What we’ve learned from this case is that while colonial history gives a framing, what moved the Court were contemporary stories of Indians and their aspirations for the future . . . Every country has its own experience of colonialism, but I think that’s a lesson that speaks across the board.”[9] Thus, rather than focusing on the history of the colonial-era law, the stories of the people affected by the law were told. This is a shift from how the case was presented five years prior, where it focused more on the law than the people affected.

How does this case extend past India? In other words, what are the global ramifications? Besides representing a success of the LGBTQIA+ community, the case offers an opportunity for other countries that rely on Section 377 to reflect and potentially change their existing laws. In fact, numerous countries are changing, or in the process of changing, colonial era laws that banned homosexuality and homosexual acts.[10] “The Indian high court ruling will surely be influential, both because of the importance of that court and the ruling’s strong condemnation of the challenged law.”[11]

For example, in Kenya, a former British colony where gay sex is criminalized, the High Court is obtaining submissions in the case that seeks to decriminalize gay sex. The Constitutional Division of Kenya’s High Court is planning to hear submissions on the relevance of India’s decision that decriminalized gay sex, given that both countries shared Section 377. Although Kenyan Courts are bound only by decisions of higher courts in Kenya, foreign court decisions can be persuasive if they pertain to the same subject matter.[12] Thus, the usage of the precedent established by the Indian Supreme Court decision could assist in the nullification the law against homosexuals in Kenya.

Thus, the Indian Supreme Court case represents a change for the global LGBTQIA+ community. It serves as a rallying cry to continue to fight for LGBTQIA+ rights around the world. Members of the LGBTQIA+ community are still persecuted, targeted in state-sponsored homophobia, and raided in anti-gay purges, but there is hope. The legal strategies in this case focused on everyday modern people’s experiences rather than the narrow interpretation of the past. Knowing this, the LGBTQIA+ community can continue to advance equal rights by telling their stories and elucidating the current oppressive systems that exist so later generations do not encounter the oppressive colonial laws that continue to exist in many areas of the world.


[1] Wescott, Ben, “The Homophobic Legacy of the British Empire,” CNN, Cable News Network, 12 Sept. 2018, www.cnn.com/2018/09/11/asia/british-empire-lgbt-rights-section-377-intl/index.html. (Visited October 22nd, 2018)

[2] Indian Legislative Council. Indian Penal Code. 1860. https://www.oecd.org/site/adboecdanti-corruptioninitiative/46814358.pdf (Visited October 22nd, 2018)

[3] Wescott, Ben, “The Homophobic Legacy of the British Empire.”

[4] Ibid.

[5] Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India) . 6 September, 2018. (Visited October 22nd, 2018).

[6] Wescott, Ben, “The Homophobic Legacy of the British Empire.”

[7] Idem.

[8] Idem.

[9] Idem.

[10] Allen, Samantha. “India Just Decriminalized Gay Sex. Other Countries May Follow.” The Daily Beast, The Daily Beast Company, 7 Sept. 2018, www.thedailybeast.com/india-just-decriminalized-gay-sex-other-countries-may-follow. (Visited October 22nd, 2018).

[11] “In Legal Battle over Gay Sex, Kenyan Court to Consider Indian Ruling.” NBCNews.com, NBCUniversal News Group, www.nbcnews.com/feature/nbc-out/legal-battle-over-gay-sex-kenyan-court-consider-indian-ruling-n914011. (Visited October 22nd, 2018).

[12] Allen, Samantha. “India Just Decriminalized Gay Sex. Other Countries May Follow.”