India: Celebrating 5 years since decriminalization of same-sex sexual conduct
The judgment marked a historic victory for LGBTIQ individuals in India and across the region.
On September 6, 2018, exactly five years ago, the Supreme Court of India in Navtej Singh Johar vs Union of India, decriminalized adult consensual same-sex conduct by reading down Section 377 of the Indian Penal Code. The judgment, in effect, decriminalized homosexuality in India, by reading down provisions of an archaic law introduced in 1860, and upheld the constitutional rights of all citizens, irrespective of their gender identity or sexual orientation.
The Court reasoned that discrimination on the basis of sexual orientation was violative of an individual’s right to equality and privacy and that living under the constant fear of persecution deprived one of their right to life as it hampered their ability to lead fulfilling lives. Evidence has shown how LGBTIQ persons in India were subjected to fines, arbitrary arrests, and imprisonment owing to the existence of Section 377. The Indian Supreme Court has therefore been instrumental in recognizing the historical and pervasive stigma experienced by LGBTIQ individuals.
“LGBTIQ individuals have been subjected to criminalization, harassment, systemic discrimination and violence for far too long. Decriminalisation, therefore, was a necessary first step in the fight for equality as the existence of Section 377 was contrary to the guarantee of equal rights enshrined in the Indian Constitution,” said Ajita Banerjie, Senior Research and Policy Officer at ILGA Asia. “However, decriminalization alone will not guarantee a violence-free environment for LGBTIQ persons. There are still a range of vaguely defined indirect laws such as those that regulate sex work, begging and public obscenity that are routinely used by the police to harass and arrest LGBTIQ persons. Therefore, we must call for the repeal of all discriminatory legal provisions to ensure access to justice for LGBTIQ individuals, especially those belonging to marginalized socio-economic groups.”
The judgment had rightly noted how Section 377 singled out queer persons, based on their identity and private choices and marked them as ‘less than citizens – or less than human’ and perpetuated discriminatory attitudes towards LGBTI individuals. Since the sexual acts classified and criminalized under Section 377 were associated more closely with non-normative gender identity and sexual orientation, the law perpetuated stigma, prejudice, discrimination, and violence against LGBTIQ individuals. The Court had rightly noted that “when everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity.” Further, the judgment noted that the perception of deviance and criminality fostered through Section 377 “alters the prism through which LGBT persons are viewed” thereby legitimizing discrimination against LGBTIQ persons.
The Navtej judgment has established a binding precedent on all courts across India and holds immense persuasive value in other jurisdictions too. For instance, the judgment was cited by the Singapore High Court in Ong Ming Johnson v. Attorney General which held Section 377A of the Singapore Penal Code to be unconstitutional. The progressive realization of LGBTIQ rights in India can therefore serve as an important roadmap to other jurisdictions in Asia.
“Today marks a historic turning point in our region's journey towards LGBTIQ rights and inclusivity. This landmark judgment has not only liberated countless individuals from the shadows of discrimination but has also sent ripples of hope across South Asian nations. It has set a powerful precedent for progressive legal reforms, igniting conversations about LGBTIQ rights from Kathmandu to Colombo,” said Tashi Tsheten, the Executive Board South Asia representative at ILGA Asia “To continue this positive momentum, we must foster cross-border dialogues, sharing experiences, and strategies, to ensure that the region as a whole progresses towards full acceptance and equality. The past five years have shown that change is possible, and by working together, we can ensure that the spirit of inclusivity continues to flourish throughout the Asia region.”