Indian Supreme Court

India Realizes Victorian Era Is Over, Decriminalizes Homosexuality

A ban on gay sex dated back to 1861, when India was ruled by the British.

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David Talukdar / Pacific Press/Newscom

Consensual gay sex is no longer a criminal offense in India after the nation's supreme court struck down a Victorian-era ban on the act.

"Any consensual sexual relationship between two consenting adults—homosexuals, heterosexuals or lesbians—cannot be said to be unconstitutional," Chief Justice Dipak Misra of the Supreme Court of India said in court today as he announced the ruling.

Hinduism—India's dominant religion—actually has a history of accepting the LGBT comunity. As The New York Times notes, illustrations in ancient Hindu temples show people engaging in same-sex acts. Some Hindu myths even honor transgender people.

That all changed under British rule in the colonial era. In 1861, the British imposed a law criminalizing voluntary "carnal intercourse" that goes "against the order of nature." The law, officially known as Section 377 of the Indian Penal Code, meant gay sex was punishable by up to 10 years in prison.

In recent years, the law was rarely enforced. But activists say it encouraged a culture of fear. The Washington Post reports:

While the statute was rarely used as a basis for prosecution, its presence meant that gay people faced threats, harassment and blackmail. It also served as a constant reminder to the gay community that the state considered their sexuality illegal.

According to Misra, the law clearly discriminated against gay people. "Constitutional morality cannot be martyred at the altar of social morality," Misra said in court. "Social morality cannot be used to violate the fundamental rights of even a single individual."

The high court's ruling represents the culmination of a years-long battle to achieve equal rights for gays and lesbians. A 2009 ruling from the Delhi High Court decriminalized homosexuality, but the supreme court reversed that ruling in 2013, saying it was "legally unsustainable" to repeal Section 377 since only a "minuscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders." Then last August, the supreme court said privacy is a fundamental right. That ruling may have served as a precursor to today's decision.

Activists celebrated the five-judge panel's ruling on homosexuality, but India still has work to do. Gay people can't get married, and many people in the conservative nation don't quite accept them. "This is the end of the beginning," gay activist Harish Iyer tells The Guardian. "It's the beginning of many more battles we have to fight."

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  1. And that’s how you stick it to colonial Britain.

    1. If one is going to stick it in anywhere in colonial Britain, please keep such activity between boarding school chums as God intended.

  2. Too bad that right to privacy couldn’t have been suddenly discovered when the West paid India to engage in eugenics.

    http://www.bbc.com/news/world-asia-india-30040790

    1. “The drive to sterilise began in the 1970s when, encouraged by loans amounting to tens of millions of dollars from the World Bank, the Swedish International Development Authority and the UN Population Fund, India embarked on an ambitious population control programme.

      During the 1975 Emergency – when civil liberties were suspended – Sanjay Gandhi, son of the former Prime Minister Indira Gandhi, began what was described by many as a “gruesome campaign” to sterilise poor men. There were reports of police cordoning off villages and virtually dragging the men to surgery.”

      1. It was all for the socialist common good to sterilize undesirables.

      2. Margaret Sanger approves

  3. “India Realizes Victorian Era Is Over, Decriminalizes Homosexuality”

    Joe Setyon lets us know the ${CURRENT_YEAR}

  4. A ban on gay sex dated back to 1861
    India as a complete entity maybe, but in the collection of earlier constituent states, it went back a lot further. It wasn’t just the Muslim states either.
    Fashionable Westerners have always liked to imagine the collection of sects we call Hinduism was sexually laissez-faire. That it was all Kamasutra and Hijra. But that’s a historical myth, created by, ironically enough, Victorians who felt that English society was too repressed, or supremacists who were slagging the natives.
    Yes there were fringe religious groups in India who were sexually permissive (Christianity has had it’s fair share of peripheral sex groups too), but the majority of what constitutes what we call Hinduism was incredibly conservative, placing a high value on sexual purity. They were also just as hostile to homosexuality as Buddhism, Islam and Christianity.

    Even up until recently kissing was unheard of in most of Bollywood, and Hindu groups would break up Valentines displays in stores for promoting licentious behavior. If anyone says this is because of the British Raj, then they’re ahistorical revisionists looking to promote a narrative.

    1. Well said. A sterling example of why LGBT history itself should be left out of primary school curricula.

    2. Yes. The myth that the current sexual taboos of the various former British colonies have existed as an indespensible part of local culture since time immemorial has been “debunked” so many times in favor of a narrative that life in these places was just one big giant Folsom Street Festival before the eeeevil puritanical Brits came along and brainwashed everyone into their current unwokeness, that everyone seems to love repeating it and no one questions whether it is even more simpleminded. I’m getting pretty fucking sick of it.

      Demonstrating your enthusiasm and comfort with the cultural values of the global West is an irresistible social signal for (some) members of the booming Third World middle classes to make to demonstrate their sophistication and superiority to their countrymen. (As here, that’s of course often not a bad thing at all for human rights.) The woke mythology that comes along with those values nowadays makes it far, far easier than before for a third world bougie to do this without bougie guilt. Now the West is telling you, oh, of course, nothing could be more historically Indian than having the very same social values that the Google board of directors happens to have; it was the evil West that pushed everything reactionary on you. You are quite the cultural nationalist, good bougie sir; no one could be more authentically salt-of-the-earth traditional Indian than you.

    3. Well, sure, but then Joe Seyton wouldn’t get to write something smug about it, now would he?

  5. Well, that is good news. Greater liberty for all parties concerned.

    1. Well, yes.
      But some see this as ‘judicial tyranny’. And we can’t have that, even if it means less freedom.

    2. Yes indeed. Maybe Russia can be next?

  6. >>>cannot be said to be unconstitutional

    stupid to have believed such an abstract as a relationship to be “constitutional” in the first place

  7. As if the British have ever truly been against gay sex. Nttawwt.

  8. A 2009 ruling from the Delhi High Court decriminalized homosexuality, but the supreme court reversed that ruling in 2013, saying it was “legally unsustainable” to repeal Section 377 since only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders.”

    Am I reading something wrong here? If it impacts a miniscule fraction of people, shouldn’t it be easy to sustain?

    Or is this a curried version of FYTW?

    1. Am I reading something wrong here? If it impacts a miniscule fraction of people, shouldn’t it be easy to sustain?

      Marriage law will have to be rewritten to say ‘couple’ rather than ‘him and her’, people will be able to get straight married but not gay married (and vice versa), censuses and tax forms will have to have extra checkboxes, when someone on the relationship says they were raped we won’t know who to blame by default, if the law can’t “ban” gay marriage then we can’t ban polygamy or beastiality… unsustainable.

      1. … okay, I’m gonna call Poe’s Law here.

        I’m pretty sure this is sarcasm, but that’s the exact sort of thing I’ve been reading from sincere social conservatives for the past two decades.

    2. “Legally unsustainable,” not socially unsustainable. They were saying the argument wasn’t there for using the Constitution to invalidate sodomy laws. They were probably right, as far as I remember seeing the last time I looked at it. Everyone was being quite sloppy on all sides–sloppier than a big puddle of curry-flavored santorum. This latest decision is probably sloppy too.

  9. Jesus is not going to be happy about this.

    1. If he wanted a say in any of this, he should have returned on time, as promised.

      1. Traffic in heaven is a bitch. You think LA is bad. Jesus is this close to driving his porsche down the median.

        1. Jesus is this close to driving his porsche down the median.

          Do you think he’s loyal to the car brand founded by a Nazi or just owns it for show?

  10. What is interesting in countries like this, where they have sodomy bans in place that are being challenged in the very recent past, is that they are being challenged by gay rights activists who are openly saying from square one, “This battle is just the beginning in transforming our society to accept homosexuality. Even if we win this, gay people will still not have antidiscrimination protections, and they will still be oppressed by not having the right to marry. This is only a first step.” They openly say this, say their plans and what they intend for the consequences of their judicial win to be. They do not say, oh, this is a matter of privacy and government intrusion; this law is an embarrassment to our country; plenty of very traditional countries do not have one; this law makes much of everyone’s sex illegal; changing this law will not mean a public endorsement of homosexuality in any way, don’t worry; etc. And I think they’re wise to do it, because many conservatives have indeed become rather sheepish and embarrassed about the whole thing to mount much of a defense, so the gay rights folks might as well go the route of hyping radical consequences for the step, because there is little risk of it torpedoing it all…

    1. …Conservatives in these countries probably regret that they did not legalize sodomy long ago. Conservatives in countries where it was already legal, like Turkey (since the 19th century!) and Russia, may actually benefit from not having any such laws to form the seed of a legal movement.

  11. Some Hindu myths even honor transgender people.

    No, they don’t. The “transgender” concept as popularly promoted today did not exist until the 1990s, so it is not possible that ancient Hindus thought of anyone as “transgender”. There are Hindu myths about gods who can manifest in male, female, or androgynous forms, and myths about people who were transformed to the opposite sex by supernatural means, but “transgender” is a contemporary idea.

    1. Many ancient cultures incorporate a nonbinary conception of gender because in every culture, ancient or modern, there were what we now call gays, lesbians, and transgender people. Only the tyranny of Abrahamic religion across the globe has made us adopt the unnatural binary notion.

      1. what we now call…transgender people.

        Yes, there were WHAT WE WOULD NOW CALL “transgender” people. At the time, though, no one thought of anyone in those terms. The concept is new. The concept of “gender” itself, as opposed to sex, is a very recent invention, so, no, ancient cultures did not “incorporate a nonbinary conception of gender” because they did not “incorporate” a “conception of gender” at all.

        Most of the people calling themselves “transgender” today are no different from the people considered “gay” just a few years ago.

        1. I insist on a strict distinction between gay and trans, thank you. I’ll allow that it might be a part of a spectrum, but I’ve known very effeminate gays who have no interest in transitioning and quite butch men who to everyone’s surprised started being women.

          The point is the binary of male-female is not the absolute norm of human culture, and “third genders” and homosexuals have not always been treated poorly by society.

          1. You’re so full of the Kool-Aid that you can’t acknowledge that the terms and concepts we use to discuss and define these things are contemporary intellectual fads that have no relevance not only to ancient cultures, but not even to the 1980s.

            There are several different conditions that have been lumped together as “trans”, and the popular ideas about what “trans” is are fluid and contradictory, so any “strict distinction” you make is yours only and has no objective reality. I stand by my assertion that the majority of those calling themselves “trans” today would have considered themselves Gay men very recently.

            The male and female sexes are not “norms”; they are biological realities. There have been role expectations for males and females based on their sex, especially for women, that are more or less officially enforced, in all cultures. And, there have been niches created, either through societal institutions or more informally, for those, especially men, who do not neatly fit into the expectations for their sex, in all societies, including ours. Completely “binary” sex role expectations have never been the “absolute norm” anywhere, anytime. That does not mean that previous cultures held to any concept of “genders” as popularized today.

            1. No, sexually non-conforming people, especially men, have not always been treated as poorly as they have been in Western civilization for the last few centuries. That does not mean that previous cultures held to any concept of “genders” as popularized today.

  12. Any consensual sexual relationship between two consenting adults?homosexuals, heterosexuals or lesbians?cannot be said to be unconstitutional

    That seems overly restrictive.

  13. Greater liberty for all parties concerned.

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