The Big Story: LGBT rights

India’s fight to uphold the basic rights of the LGBT community took a new turn on Monday when the Supreme Court’s decided to reconsider the constitutionality of Section 377 of the Indian Penal Code, which criminalises what it describes as “unnatural sex”.

The fact that Section 377 still stands is a telling commentary on the inefficiency of India’s Parliament in expanding the rights of its citizens. Since 1950, there have been at least 30 amendments to the Indian Penal Code, a largely colonial code that the British used to maintain law and order in India. But somehow, the inhuman provision of Section 377, which makes alternate sexual orientation a crime, has missed Parliament’s eye.

This cannot be dismissed merely as an oversight. In 2000, the Law Commission of India categorically recommended that the section be deleted from the statues. Subsequent governments, led by both Congress and Bharatiya Janata Party, sat on this recommendation and failed to move on it.

However, the recommendation bolstered the confidence of groups fighting for LGBT rights and led to the Delhi High Court reading down the section in 2009 by declaring some parts of it as unconstitutional. Unfortunately, the Supreme Court did not share the liberal view of the Delhi court. In 2013, it reversed the High Court ruling using some unconvincing arguments, including the fact that Section 377 affected only a minuscule number of people. In essence, the apex court sided with a majoritarian view that viewed alternate sexual orientation as immoral.

The issue of LGBT rights is more political than legal. Underpinning the hesitation of the political establishment to scrap Section 377 is the reluctance to take on conservative elements of all faiths and to risk alientating the constituencies they are believed to represent.

This stands in contrast to the Centre’s decisive action against triple talaq, the Islamic practice of instant divorce in Islam that was outlawed by the Supreme Court last year. Even though the apex court had already declared it illegal, the Centre has rushed to Parliament with a Bill seeking to make pronouncement of triple talaq a criminal offence. Why is the Centre not showing the same alacrity in dealing with Section 377?

A Constitution bench of the Supreme Court will now reconsider the validity of its 2013 judgement on Section 377 in light of its right to privacy ruling last year. But Parliament still has time to redeem itself and reassert its position as the true champion of the rights of citizens. Deleting Section 377 through legislative action rather than a judicial writ will carry more authority and will uphold the true spirit of the Constitution, which is humane and liberal and guarantees equality to all India’s citizens.

The Big Scroll

  • Supreme Court’s Right to Privacy judgment opens door to gay sex being decriminalised in India.  
  • How India’s battle to decriminalise gay sex could end up mirroring US struggle for abortion rights.  


  1. Accounts of Dalit protests in Maharashtra are incomplete and need to be leavened by context and history, says Christophe Jaffrelot in the Indian Express. 
  2.   From east to west, India must brace itself for more disorder across the continent in 2018, writes MK Narayanan in The Hindu.
  3.   If we do not recognise the problem on hand, we will not have any reason to try and find solutions, Mahesh Vyas in Mint on the jobless growth India is witnessing.   


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