Would gay marriage be legalized in India?

Homosexuality is no longer a criminal offense in India - a milestone for sexual minorities in the country

The Supreme Court overturns a 157-year-old law that criminalizes same-sex sex. The judiciary thus disregards the reservations of religious and conservative circles.

Part of Section 377 of the Indian Penal Code reads like a relic from colonial times, and it is too: According to this, "carnal intercourse against the order of nature" is punishable by up to ten years in prison. On Thursday the Supreme Court of India decided to repeal part of the antiquated paragraph, which was primarily directed against gays and lesbians. On the other hand, the sections that refer to “unnatural intercourse” with children and animals should remain.

The law was used as a weapon against the LGBT community (lesbians, gays, bisexuals and transsexuals), said Chief Justice Dipak Misra at the verdict. He characterized the so-called Section 377, introduced by the British colonial rulers in 1861, as irrational, arbitrary and obviously unconstitutional. The five magistrates passed the final judgment unanimously. In front of the courthouse in Delhi, activists who had fought for liberalization burst into jubilation and tears.

Years of tug-of-war

In the past few years, the controversial article of the law was applied relatively rarely in the gigantic South Asian empire. In 2016, 2187 reports of “unnatural offenses” were received. Only 7 cases were convicted. Nonetheless, the paragraph served as a pretext to harass, harass or blackmail gays, lesbians, bisexuals and transgender people; for example by police officers in conservative areas. Indu Malhotra, also a member of the Supreme Court, said the story owes gays, lesbians and other sexual minorities an excuse.

While ancient Indian culture actually maintained a relaxed approach to homosexuality, the British brought their puritanical sexual morality to India. The criminalization of same-sex sex remained in the law even after independence in 1947. Homosexuality has long been considered a taboo, especially in rural provinces.

A first foray was launched in the 1990s. After a long tug-of-war between the government and the judiciary, a court ruled the law unconstitutional in 2009. Hindu, Christian and other religious groups appealed against this. Not least for formal reasons, the Supreme Court whistled the lower instance back in 2013 and upheld the ban. Parliament should decide on the abolition of the law, it said in the justification. But the legislature did not touch the hot potato. LGBT activists then went to the Supreme Court and requested a reassessment.

India's judiciary had indicated on several occasions that politics had to deal with the controversial issue. The nationalist-conservative government of Narendra Modi, meanwhile, resisted changing the status quo. One bowed to the "wisdom" of the Supreme Court, according to Modis around him. Nevertheless, parliamentarians from the ruling Bharatiya Janata Party (BJP) criticized the legalization on Thursday. There is a threat of an increase in the number of people infected with HIV. As expected, the opposition Congress Party welcomed the verdict.

Warning from the ruling party

The verdict of the Supreme Court represents a milestone for the Indian LGBT community. However, there is still a long way to go to achieve comprehensive legal equality, for example in inheritance or marriage law. At the same time, however, the emancipation of sexual minorities has made progress. In official documents, citizens can now enter “other” as their gender in addition to “male” and “female”. In the state of West Bengal even a transsexual judge speaks right.

Before the verdict, the ruling BJP had unequivocally warned the judiciary not to go too far. Further steps, such as a legal basis for gay marriage, would not be tolerated, so the tenor.