India’s Supreme Court: It’s Still Illegal To Be Gay

Indian activists protest the Court’s decision Wednesday. CREDIT: RAFIQ MAQBOOL/AP IMAGES
Indian activists protest the Court’s decision Wednesday. CREDIT: RAFIQ MAQBOOL/AP IMAGES

The highest court in the planet’s second-most populous country has ruled that gay people can still be punished under the law for having consensual sexual relationships. India’s Supreme Court reversed a 2009 ruling of the Delhi High Court that struck down the country’s sodomy law — Section 377 — declaring that only the Parliament can undo it.

Section 377 was introduced in 1860 when Britain ruled India as a colony, and reads as follows:

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

The law has been used to justify harassment against HIV-prevention workers and has forced the gay community to remain largely closeted in the socially conservative country. Other countries that were part of the British empire have the same provision.


Advocates against the law could ask for a two-judge panel to review the decision, which could produce a better result because one of the judges who heard the case is retiring. According to Reuters, it seems unlikely the government would act before the next election in May, when a backlash is expected from socially conservative Hindu nationalists. It was faith-based groups, not the Indian government, that appealed the 2009 ruling.

Many groups have responded quite negatively to the ruling, with protests expected Wednesday afternoon condemning the reversal.

It was only ten years ago that the U.S. Supreme Court ruled that state sodomy laws were unconstitutional (Lawrence v. Texas), and three of those laws nevertheless remain on the books — in Oklahoma, Kansas, and Texas.