Statement – Burying the “colonial ghost”: India decriminalises homosexuality

Burying the “colonial ghost”: India decriminalises homosexuality 

PAI reflects on the groundbreaking victory for the global LGBTI community.

 

On Thursday the 6th of September, India’s Supreme Court ruled to protect the rights of the world’s second most populous nation and declared the legal ban on homosexuality unconstitutional. The Delhi high court ruled that criminalising homosexuality was a violation of India’s constitution and the fundamental rights protected therein. The victory is the culmination of decades of work by Indian LGBTI human rights groups and activists.

The law in question, Section 377, a 158-year-old section of the Indian Penal Code, criminalised same sex acts as “carnal intercourse against the order of nature.” The court ruled that “it was obligated to protect the dignity of every individual of the society, including people from the LGBT community.” Justice Chandrachud, one of the five judges who deliberated the case, called the law a “colonial ghost.” Anjali Gopalan, the Executive Director of the Naz Foundation (India) Trust, who first filed the petition in 2001, stated that the ruling signals that India has “finally entered the 21st  Century.”

This victory signals the beginning of the end of the discrimination against and marginalisation of the gay community as sanctioned by Section 377. The decriminalisation of consensual same sex acts between adults will also have a far-reaching effect in the battle against HIV and Aids in a country where around 2.5 million people are affected.

“The beauty of this judgement is that the Chief Justice of India stated a very important obiter dictum when he said, ‘…LGBT community possess rights like others. Majoritarian views and popular morality cannot dictate constitutional rights…’ The India Supreme Court finally came through as an institution that understands the sanctity of rights,” Juliet Nnedinma Ulanmo – PAI Board Co-chair.

Given the size of the Indian LGBTI community and the conservative nature of Indian society, the ruling arguably represents the biggest win in LGBTI history, and international human rights and LGBTI organisations have flooded social media with celebrations and messages of hope that countries that are as, or more, conservative as India will follow suit and denounce colonial-era laws
and decriminalise laws that violate the human rights of LGBTI people. It is also a huge win in the continuing battle for decolonisation.

“This ruling attests to the power of co-operation between allies and LGBTI persons all over the world. We hope that this will inspire governments and activists in Africa to review discriminatory laws and accord citizens their basic human rights,” Nate Brown – PAI Acting Executive Director.

As an African movement, we at Pan Africa ILGA are particularly excited and hopeful that the impact of the Indian victory will resonate in Africa, a continent similarly hamstrung by outdated colonial laws and attitudes, and religious and societal conservatism. We congratulate our Indian colleagues who have fought so long and so hard for this moment, and we take our inspiration from them in continuing our work and in supporting the work of other LGBTI organisations on the African the continent.

 

The PAI Team