A legacy of colonialism: The criminalization of homosexuality in India

In 2018, the Supreme Court of India decided to decriminalize “homosexuality” in India by repealing Section 377, a colonial-era anti-sodomy maintained within the Indian Penal Code. This was a remarkable decision, however, in 2013 the same court upheld Section 377 as integral to Indian law and society. What changed between 2013 and 2018 that led to the reconsideration of the Supreme Court decision? In this paper, I seek to explain this process of decriminalization by analyzing the judicial interpretation of the anti-sodomy law in three key Court cases: Naz Foundation v. Government of NCT of Delhi & Others, 2009; Suresh Kumar Koushal v. Naz Foundation and others, 2013; and Navtej Singh Johar and others v. Union of India, Thr. I use an inductive approach and qualitative coding methods to analyze the validity of Section 377 in those legal documents. I argue that a shift in the Court’s language when addressing the rights of sexual minorities contributed to a new rights discourse that changed the way Section 377 applied to the Indian Constitution. While Section 377 in its application was held to be unconstitutional, the reasons for doing so appear reflective of both a traditional and secular notion of gender and sexual orientation. This new discourse involved a move towards secularized notions of gender, as well as a nod to traditional Indian culture surrounding gender variance. We can view this discursive shift as essentially authorizing a break with colonial understandings of sex and gender and validating in law a more fluid conception of sexual identity.