The Delhi High Court has ruled that Section 377 of the Indian Penal Code, which criminalizes "carnal intercourse against the order of nature with any man, woman or animal," should not apply to consensual relations between adults.
The decision that "penile, non-vaginal sex" should not in itself be considered a crime is good news. While few were prosecuted under Section 377, a People's Union for Civil Liberties (PUCL) report noted that it has been commonly used "by the police mostly to victimize gay and bisexual men whom they catch in public areas to extort money and blackmail, despite the fact that blackmail and extortion are criminal offences. Section 377 has also been used to intimidate lesbian women, particularly in the cases of women who have run away together, or if they make their relationship known." The law is a direct legacy of British rule, having been introduced in 1861 by the colonial state.
However, the social effects of this formal extension of democratic rights should not be overestimated. It is not suddenly "OK to be gay in India," as many headlines have suggested. No more than the article in the Indian constitution prohibiting "discrimination on the grounds of religion, race, caste, sex, or place of birth," on which the court's ruling was based in part, has in fact removed such discrimination. Like the liberation of women and those oppressed by caste, real sexual freedom will require a profound reorganization of the material basis of society. It will take nothing less than the replacement of the family as an economic institution within a collectivized, socialist economy.
Section 377 has not been repealed. It remains on the books and the court, as part of the same ruling, affirmed its application to cases involving people under eighteen. In a country where forced child marriage remains commonplace, young people are "presumed not to be able to consent to a sexual act."
It's unclear whether the ruling applies outside of the city of New Delhi. While the Delhi High Court is not a federal court and has no direct jurisdiction in other parts of India, there is a precedent for high court decisions to apply on a national basis. The decision may also have a broader influence on other courts and on the central government.
See also anti-caste: CONGRESS-LED GOVT DEFENDS REACTIONARY, COLONIAL-ERA LAWS (September 27, 2008)