Across a wide swath of the former British empire, three digits have become synonymous with homophobia: 377. That’s the section of the 19th century British penal code that remains in several countries’ statutes—and which was finally deemed unconstitutional in India by a ruling from the country’s Supreme Court on Thursday morning.
Consensual same-sex relations are now legal in India, thanks to the unanimous ruling in which the justices said, as the Times of India reported, that Section 377 was “irrational, arbitrary, and incomprehensible” and had “made the LGBT a closeted community.”
Although rarely used to prosecute, Section 377 stubbornly persisted in the face of a decades-long advocacy campaign, forcing LGBT people in India to live in fear of blackmail.
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Now, going forward, human rights advocates hope that India’s ruling will have a ripple effect on other countries where such anti-gay laws remain on the books.
“The ruling by the Indian Supreme Court should resonate across these countries where similar laws remain in force,” Meenakshi Ganguly, South Asia director for the advocacy group Human Rights Watch, told The Daily Beast.
As HRW noted shortly after the historic ruling, language similar to Section 377 can be found in “dozens of statutes” around the world. In Singapore, for example, Section 377A states that “any male person” who commits “any act of gross indecency with another male person” can face a prison term of up to two years.
Across India’s Western border in Pakistan, Article 377 prohibits “carnal intercourse against the order of nature.” And to the east in Bangladesh, a similar Section 377 has survived multiple repeal attempts.
From a global LGBT rights perspective, the repeal of Section 377 in the world’s second most populous country could have enormous consequences.
India’s ruling, Ganguly told The Daily Beast, “should serve as a precedent in other courts, just as the court in India referred to previous standards set in other parts of the world.”
But LGBT advocates in other countries would do well to imitate India’s broad-based challenge to Section 377, says Arundhati Katju, a Columbia Law School alumna who helped formulate the legal approach used in this latest court case after a 2013 setback in which the Supreme Court had deferred the question of same-sex relations to Parliament.
Katju told The Daily Beast that it was “important to shift the narrative from being focused largely on the law’s colonial history” in order to shine a spotlight on how 377 affected LGBT people in India today.
“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,” she told The Daily Beast the morning after the ruling. “Every country has its own experience of colonialism, but I think that’s a lesson that speaks across the board.”
Indeed, behind the historic ruling, as the Press Trust of India noted, there was a “motley group of celebrity gay rights activists” who had agreed to be petitioners in the case: dancer Navetej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, writer Aman Nath, and hospitality executive Keshav Suri. All are LGBT themselves.
Due to taboos and stigmas surrounding homosexuality in India—aided in no small part by Section 377 itself—some of these petitioners had to be persuaded to join the case: Mehra, the Press Trust of India reported, was approached by lawyer Menaka Guruswamy—another Columbia alumna who made oral arguments in the Supreme Court case—in order to “give a human face to the 20-year-old-legal battle.”
Jauhar said in an interview that he decided to join because “putting a face to the cause helps.”
“There had never been LGBT petitioners before in this case,” Katju told The Daily Beast. “They came forward with their stories—of love and life under Section 377–and that’s what moved the court, in my opinion.”
Suzanne B. Goldberg, Director of the Center for Gender and Sexuality Law at Columbia, told The Daily Beast that this choice to highlight the lived experiences of LGBT people in India can be as “a powerful model for advocates” in places where same-sex relations remain illegal.
“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,” Goldberg said.
But of course, being openly LGBT in such countries often carries with it the risk of harassment and potentially fatal abuse, as Ganguly told The Daily Beast, pointing toward anti-gay violence in Bangladesh, Pakistan, and Sri Lanka.
“LGBT people in the region have long suffered abuse and ridicule,” she said.”Numerous have endured beatings and other forms of violence. Several have even committed suicide in desperation for the abuse they endured, or the inability to live as they choose. And so, as many around the world celebrate today, it is important to remember those lost lives.”
From a strictly legal viewpoint, however, one couldn’t dream up a more comprehensive boost to the cause of LGBT equality than India’s ruling this week.
As human rights lawyer Yuvraj Joshi wrote for Slate, India’s Supreme Court ruling was “broader in scope than the privacy-based arguments” made in countries like the U.S. to repeal anti-sodomy legislation.
Indeed, when compared against the text of the 2003 Lawrence v. Texas decision, which affirmed a right to privacy for consensual sexual activity in the U.S., India’s Supreme Court ruling is far more sweeping and passionate.
“Social exclusion, identity seclusion, and isolation from the social mainstream are still the stark realities faced by individuals today,” the ruling read, “and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards the full development of his/her personality that we can call ourselves a truly free society.”
Arguably the only comparable LGBT-related Supreme Court text in the U.S. would be Justice Anthony Kennedy’s 2015 majority opinion in Obergefell v. Hodges, which went beyond the mere legal facts at stake to talk about the human issues at the core of same-sex marriage. (As The Daily Beast’s Jay Michaelson wrote at the time, Obergefell had “an unusual proportion of humanity to legalese.”)
It is both the breadth and the rigor of India’s ruling that gives advocates hope it will echo powerfully in other countries where Section 377 and other anti-gay laws are still on the books. As Goldberg points out, we may not have to wait long to witness its power.
“There are several countries with active, ongoing challenges to their sodomy laws,” she told The Daily Beast. “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.”
