Nearly seventy-one years after adopting one of the world’s most liberal constitutions, India can finally celebrate the expunging of a nasty colonial-era provision in its penal code, Section 377, which criminalised ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal.’

Glory Glory

Section 377 made any sex apart from penile-vaginal intercourse between a man and a woman—any sex the authorities in power decide is ‘against the order of nature’—to be illegal. The Supreme Court has made it clear that the personal sexual preferences of adults is indeed as nature made them, and that it is lawful for them to be themselves.

Obviously this is great news for the LGBTQ+ community, whose idea of what is ‘natural’ reflects their sexual orientation. But it also impacts married heterosexual couples since theoretically, an act of oral sex between a husband and a wife is also illegal. And if you’re not married to each other, of course, it’s worse. If Bill Clinton had been an Indian, he might have survived impeachment after the Monica Lewinsky affair, but he’d have ended up in jail under Section 377.

Though not widely used—fewer than a thousand arrests a year under Section 377— the law was a tool for the harassment, persecution, and blackmail of sexual minorities within India. Beyond forcing millions of gay men and women to live in fear and secrecy, Section 377 undermined HIV-prevention efforts and contributed to depression and suicides. A 2014 study by the World Bank revealed that India suffers a loss of between 0.1 per cent and 1.7 percent of GDP because of such homophobia.

Our Tryst With Section 377

The Supreme Court’s decision recognises that by giving the state the authority to control what Indian adults do, consensually, in their bedrooms, Section 377 violates the constitutional rights to dignity, privacy, and equality enshrined in Articles 14, 15, and 21, respectively. Its decision means that all consensual sex between consenting adults, irrespective of gender and sex, is now legal. This does not imply, as ill-informed critics on social media are alleging, that in the process it legitimises forced sex (or rape), sex with animals, paedophilia or pederasty.

In 2013, the Supreme Court had overturned a liberal Delhi High Court ruling which struck down Section 377 in 2009. The heavens did not fall after the High Court ruling; Indian society did not collapse. Yet bigots petitioned to reverse that decision, ultimately succeeding in turning back the clock for gay rights in India in 2013, when the Supreme Court overturned the High Court’s decision.

Like many Indians, I found the Supreme Court’s 2013 ruling antithetical to India’s commitment to pluralism and democracy, which provides for the embrace of a multitude of identities, including those based on sexual orientation. So,

Source: https://www.thequint.com/voices/opinion/section-377-verdict-shashi-tharoor-on-lgbtq-ruling-supreme-c