India Gay-Sex Ruling: What to Expect

NEW DELHI — It is one of the world’s oldest laws criminalizing consensual gay sex, and after weeks of deliberation, India’s top court is set to decide whether it should go the way of colonial rule.

The five Supreme Court judges who heard the case have been asked to strike down the law; a ruling is expected on Thursday.

India has been much slower than some other countries to allow gay people to live full and open lives, and in arguments before the court in July, lawyers for the petitioners challenging the law tried to make clear the broader issue.

“My lords, this is love that must be constitutionally recognized, and not just sexual acts,” one lawyer, Menaka Guruswamy, told the judges.

The law is known as Section 377, and was introduced by British colonizers in the 1860s, who made it part the Indian Penal Code.

“Whoever voluntarily has carnal intercourse against the order of nature,” the law decrees, can be sentenced to prison for life.

Officially, the law extends to anybody caught having anal or oral sex, though the law has usually been enforced against men. Prosecution has been somewhat rare, but it has contributed to a climate of fear for many gay people in India.

Over two dozen Indian petitioners asked the court to scrap the law. In hundreds of pages of court filings, they related the emotional cost of living closeted lives. They included a dancer and his partner, a journalist; a celebrity chef; a businesswoman; and a hotelier.

The petitioners pointed to Section 377’s long history as a cover for blackmail, harassment and sexual assault against gay and transgender Indians. Over the years, many Indians have feared that if they reported crimes such as rape, they, too, would be arrested.

During the hearings in July, the judges seemed to express sympathy. Justice Indu Malhotra called homosexuality a “variation, not an aberration.” And when a lawyer appearing for India’s government tried to cut off one of the petitioners’ lawyers, Chief Justice Dipak Misra declared, “Let her speak!”

There were a few tense moments.

Rajesh Aggarwal, a lawyer arguing in favor of Section 377, argued that homosexuality “exists only in lower classes of animals with a vegetative reproductive system.”

Early in the hearings, India’s central government, led by the governing Bharatiya Janata Party, declined to take a stand on Section 377, saying the decision should be left to the court.

Lawyers representing the petitioners before the Supreme Court argued that Section 377 was not in keeping with a ruling last year that guaranteed the constitutional right to privacy, including for gay people,

They also pointed to similar laws that have been struck down across the world.

The legal battle to strike down Section 377 has gone on for years.

In 2009, the Delhi High Court ruled that the law could not be applied to consensual sex. But soon after, Hindu, Muslim and Christian groups appealed to the Supreme Court, and in 2013, the court restored the law, saying parliament, and not the Delhi High Court, should take up the issue.

In its ruling, the Supreme Court said only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders.”

In fact, Hinduism, India’s predominant religion, was historically quite permissive of same-sex love and gender fluidity. Hindu temples depict erotic encounters between members of the same sex. In religious mythology, men become pregnant. It was only after the British colonized India that an inflexible, Victorian morality seeped into the country’s laws, lawyers said.

After the early Supreme Court setback activists regrouped, and in 2016 they again challenged Section 377, saying it violated their rights to equality and liberty under India’s Constitution.

The court has not been asked to consider the question in this case — but with countries around the world legalizing such unions, the issue has made its presence felt.

The question of just how far India should go in establishing rights for gay, lesbian, bisexual and transgender Indians emerged at hearings in July. But the judges did not let the conversation drift.

When one lawyer for the petitioners veered into a broader discussion, saying that “what happens in a bedroom is not the end-all, be-all,” Misra swiftly steered him back to the constitutionality of Section 377.

“I think you are questioning whether they can marry,” the judge said. “We’re plunging into the sea.”