Court ruling will inspire similar legal challenges worldwide
By Peter Tatchell
Decriminalisation of homosexuality in India is the world’s biggest and most impactful gay law reform
London, UK – Metro – 6 September 2018
https://bit.ly/2oMOzyF
Today’s Indian Supreme Court ruling decriminalising homosexuality is historic. It sets free from criminalisation almost one fifth of the world’s gay people. That’s tens of millions of LGBTs who will no longer live in fear of arrest and life imprisonment. Yes, unbelievably, jail for life was the maximum penalty for same-sex relations until today’s legal judgement.
Given the huge size of the Indian population – over 1.3 billion people – this reform is arguably the biggest, most impactful gay law reform in human history. It is unprecedented and puts in the shade recent similar decriminalisations in Belize, Seychelles, Mozambique and Trinidad and Tobago.
Ending the Indian ban on homosexuality is, of course, just a start. There are still huge challenges to end the stigma, discrimination and hate crime that LGBT people suffer in India. Although more liberal attitudes are growing in the major cities, in rural and small-town India, where most of the population live, there still much ignorance and prejudice. LGBT Muslims are at particular risk of so-called ‘honour killing’ by their families.
Sadly, Hindu nationalists, as well as many Indian religious leaders – Hindu, Muslim and Christian – are mostly very hostile to this reform and some have vowed to fight it.
Following the Supreme Court’s decision, Indian LGBT citizens now revert to the legal status of non-criminalisation that existed prior to the British colonisers imposing the homophobic section 377 of the criminal code in the nineteenth century.
Prior to British colonisation there were no laws against same-sex relations. Indeed, some Hindu traditions positively celebrated homosexuality alongside heterosexuality, as part of the spectrum of human sexuality and erotic desire. The British occupiers were shocked by these ‘perversions’ and smashed many of the ancient Hindu sculptures depicting same-sex love.
The homophobic law that was struck down today was therefore never an authentic, indigenous Indian law. Surprisingly, it was not repealed when India decolonised and won its independence in 1947.
Similar sections 377 exist in the laws of neighbouring Pakistan, Sri Lanka and Bangladesh. They were also imposed by Britain nearly 200 years ago. It is hoped that the Indian court judgement will inspire and empower legal challenges in those countries too. Already, a legal case is being prepared in Bangladesh.
It is also expected that this legal ruling will have a much wider impact, beyond the Asian region. There are still 70 countries worldwide that outlaw same-sex relations. Thirty-five of these are member states of the Commonwealth, which is an association of nations that is supposedly committed to equal human rights for all Commonwealth citizens.
While LGBT law reform by western nations like the UK and US can set a positive example, because India is a developing country this reform will have an even greater impact. Too often LGBT rights are dismissed by homophobic states in Asia, the Caribbean, Africa and the Middle East as a western issue.
India’s legal ruling that the ban on gay sexuality is unconstitutional and a violation of human rights shows that it is not just a matter of concern to westerners. In their unanimous decision India’s most senior judges declared that LGBT rights are human rights.
I am overjoyed for the LGBT communities in India and salute the campaigners there who fought so long and hard for this reform. It is a great tribute to their tenacity and courage; given that they suffered many setbacks and risked arrest to lobby for this change.
Their victory further reinforces my belief that LGBT law reform is an unstoppable global trend and that one day homophobia, biphobia and transphobia will be history.