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India’s Supreme Court unanimously strikes down law criminalizing gay sex

After 157 years, Section 377 will no longer keep millions of Indian people living in fear.

An activist held an anti-Section 377 sign in 2014, protesting an earlier Indian Supreme Court ruling.
An activist held an anti-Section 377 sign in 2014, protesting an earlier Indian Supreme Court ruling. CREDIT: Manjunath Kiran/AFP/Getty Images

Five years after it upheld the constitutionality of the colonial-era law that criminalized consensual private adult gay sex acts, five judges on India’s Supreme Court unanimously struck down Section 377 on Thursday. With India’s population of more than 1.3 billion people — roughly one sixth of the world’s population — the ruling will affect millions of gay, lesbian, bisexual, and other sexual minority people.

The law dated back to 1861, when India was under British rule, and prohibited “carnal intercourse against the order of nature with any man, woman, or animal.” While not always enforced, it was often used to harass and blackmail gay people, who then could report the blackmail, fearing legal prosecution.

The Court left in place provisions prohibiting sex with animals and children, but wiped out its provisions governing consenting adults.

In announcing the verdict, chief justice Dipak Misra said Section 377 was “irrational, indefensible and manifestly arbitrary.” Justice Indu Malhotra added that “history owes an apology to members of the community for the delay in ensuring their rights.”

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Across India, people celebrated the historic ruling with confetti and cakes.
And the United Nations cheered the ruling, saying, “Sexual orientation and gender expression form an integral part of an individual’s identity the world over, and violence, stigma and discrimination based on these attributes constitute an egregious violation of human rights.”

The ruling comes just 15 years after the United States Supreme Court struck down similar laws as unconstitutional in the Lawrence v. Texas case. In that case, then-Justice Anthony Kennedy authored the majority opinion as a divided court overturned its 1986 Bowers v. Hardwick and found that anti-sodomy laws were unconstitutional. Justice Clarence Thomas, who is still on the high court, dissented, writing, “I ‘can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,’ ibid., or as the Court terms it today, the ‘liberty of the person both in its spatial and more transcendent dimensions,’ ante, at 1.”

President Trump’s nominee to replace Kennedy, conservative Brett Kavanaugh, has refused to answer Senate Judiciary Committee questions about whether he believes similar privacy cases were properly decided.