India's journey toward decriminalizing homosexuality through the repeal of Section 377 of the Indian Penal Code (IPC) in 2018 marked a monumental shift in the nation's legal, social, and cultural landscape. This colonial-era law, rooted in British Victorian morality, had long criminalized consensual same-sex relationships, casting a shadow over the lives of India's LGBTQ+ community. The Supreme Court's landmark decision on September 6, 2018, in the case of Navtej Singh Johar v. Union of India, struck down the portions of Section 377 that criminalized consensual homosexual acts, affirming the constitutional rights to equality, dignity, and privacy. This article delves deeply into the historical origins of Section 377, the prolonged legal battle for its repeal, the cultural and historical attitudes toward sexuality in India, the role of music and art in shaping queer narratives, and the broader implications of the 2018 verdict for Indian society and beyond.

Historical Origins of Section 377

Colonial Roots and the Indian Penal Code

Section 377 of the Indian Penal Code was introduced in 1861 during British colonial rule, a period when India was under the direct administration of the British Crown following the 1857 rebellion. Modeled on the Buggery Act of 1533, enacted under King Henry VIII in England, Section 377 was a product of Victorian-era moral conservatism. The law criminalized "carnal intercourse against the order of nature," a vague phrase interpreted to include homosexual acts, bestiality, and certain non-procreative heterosexual acts. Violators faced severe penalties, including imprisonment for up to ten years or, in some cases, life imprisonment.

The introduction of Section 377 was part of a broader effort by the British to impose their legal and moral frameworks on colonized societies. Drafted by Lord Thomas Babington Macaulay, the architect of the Indian Penal Code, the law reflected the Judeo-Christian values prevalent in 19th-century Britain, which viewed non-heteronormative sexualities as sinful and unnatural. This stood in stark contrast to the more fluid and accepting attitudes toward sexuality and gender in pre-colonial India, where diverse expressions of love and identity were often celebrated in literature, art, and religious traditions.

Pre-Colonial India: A Tapestry of Sexual Diversity

Before British colonization, India's cultural landscape was remarkably inclusive of diverse sexual and gender identities. Ancient Indian texts, such as the Kama Sutra, written by Vatsyayana around the 3rd century CE, dedicated entire sections to same-sex relationships and non-binary gender expressions. The Kama Sutra describes practices like auparishtaka (oral sex) between men and acknowledges the existence of napumsaka (a term for individuals outside the male-female binary). Similarly, texts like the Mahabharata and Ramayana feature characters who transcend rigid gender norms, such as Shikhandi, a transgender warrior, and Arjuna, who temporarily lives as a woman during exile.

Hindu temple art, particularly from the 10th to 12th centuries, further illustrates this openness. Sculptures at sites like Khajuraho and Konark depict same-sex intimacy alongside heterosexual imagery, suggesting that such relationships were not stigmatized. Sufi poetry, a significant cultural force in medieval India, often used homoerotic imagery to express divine love, as seen in the works of poets like Rumi and Amir Khusrau. These traditions indicate that pre-colonial India embraced a spectrum of sexualities, viewing them as part of the natural human experience.

The imposition of Section 377 disrupted this cultural acceptance, aligning India's legal system with British moral standards. The law not only criminalized same-sex acts but also fostered a culture of shame and secrecy, forcing many to conceal their identities. This colonial legacy persisted long after India's independence in 1947, shaping societal attitudes and institutional practices for decades.

The Legal Battle for Repeal

Early Activism: The Seeds of Change

The movement to repeal Section 377 began in the early 1990s, driven by grassroots activism and the growing visibility of India's LGBTQ+ community. In 1991, the AIDS Bhedbhav Virodhi Andolan (ABVA), India's first AIDS activist organization, published a groundbreaking report titled Less than Gay: A Citizen’s Report. The report highlighted the discriminatory impact of Section 377, particularly its use to harass and marginalize homosexual men under the guise of public health concerns. ABVA filed a petition in the Delhi High Court in 1994, challenging the law's constitutionality, but the case was dismissed due to the organization's lack of legal standing.

The torch was picked up by the Naz Foundation, an NGO focused on HIV/AIDS prevention, which filed a public interest litigation (PIL) in the Delhi High Court in 2001. The Naz Foundation argued that Section 377 impeded HIV prevention efforts by driving same-sex sexual activity underground, making it difficult to reach vulnerable populations. The petition contended that the law violated fundamental rights under Articles 14 (equality before the law), 15 (non-discrimination), and 21 (right to life and personal liberty) of the Indian Constitution. Although initially dismissed in 2004, the Supreme Court directed the Delhi High Court to reconsider the case in 2006, setting the stage for a historic ruling.

The Delhi High Court’s 2009 Verdict

On July 2, 2009, the Delhi High Court delivered a landmark judgment in Naz Foundation v. Government of NCT of Delhi. Chief Justice A.P. Shah and Justice S. Muralidhar ruled that Section 377 was unconstitutional to the extent that it criminalized consensual sexual acts between adults in private. The court held that the law violated the rights to privacy, dignity, and equality, emphasizing that sexual orientation is an integral part of personal identity. The judgment was celebrated as a triumph for LGBTQ+ rights, with activists and community members taking to the streets in jubilation.

However, the victory was short-lived. In 2013, the Supreme Court, in Suresh Kumar Koushal v. Naz Foundation, overturned the Delhi High Court’s ruling. The two-judge bench, comprising Justices G.S. Singhvi and S.J. Mukhopadhaya, argued that amending Section 377 was the prerogative of Parliament, not the judiciary. The court dismissed the LGBTQ+ community as a “minuscule fraction” of the population, downplaying the law’s discriminatory impact. The 2013 verdict was widely criticized for its regressive stance and for ignoring the constitutional principles of equality and liberty.

The Road to 2018: Puttaswamy and Navtej Johar

The fight against Section 377 gained renewed momentum with two pivotal Supreme Court judgments. In 2014, the National Legal Services Authority (NALSA) v. Union of India case recognized transgender individuals as a “third gender,” affirming their fundamental rights to self-identification and non-discrimination. This ruling laid the groundwork for broader protections for gender and sexual minorities.

In 2017, the Supreme Court’s nine-judge bench in Justice K.S. Puttaswamy v. Union of India declared the right to privacy a fundamental right under Article 21. The judgment explicitly linked privacy to sexual orientation, stating that it is an essential attribute of personal identity. This decision undermined the reasoning in the 2013 Suresh Koushal verdict, prompting activists to file fresh petitions challenging Section 377.

In January 2018, a five-judge Constitution Bench, led by Chief Justice Dipak Misra and including Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra, began hearing a new writ petition filed by prominent LGBTQ+ individuals, including dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath, and business executive Ayesha Kapur. The petitioners argued that Section 377 violated their rights to sexuality, autonomy, and equality. The government, under Prime Minister Narendra Modi, took a neutral stance, leaving the decision to the “wisdom of the court.”

On September 6, 2018, the Supreme Court delivered a unanimous verdict, striking down the portions of Section 377 that criminalized consensual same-sex acts. The 495-page judgment, comprising four concurring opinions, was a powerful affirmation of constitutional morality over societal prejudice. Chief Justice Misra, writing for himself and Justice Khanwilkar, declared that criminalizing same-sex intercourse was “irrational, indefensible, and manifestly arbitrary.” Justice Indu Malhotra’s poignant statement, “History owes LGBT people an apology,” resonated deeply, acknowledging the centuries of injustice faced by the community.

Cultural Context: Sexuality and Society in India

Colonial Disruption and Postcolonial Challenges

The imposition of Section 377 during British rule marked a significant departure from India’s historical acceptance of sexual diversity. Colonial administrators viewed indigenous practices through a lens of Victorian morality, labeling them as “immoral” or “unnatural.” This attitude extended beyond sexuality to other cultural practices, reshaping social norms through education, law, and religion. The introduction of Christian missionary schools and the codification of Hindu personal laws further entrenched heteronormative ideals, marginalizing non-binary and homosexual identities.

Post-independence, India inherited these colonial frameworks, and Section 377 remained largely unchallenged until the 1990s. Societal attitudes toward homosexuality were shaped by a complex interplay of religion, tradition, and modernity. Many religious groups, including Hindu, Muslim, and Christian organizations, opposed the repeal of Section 377, citing moral and cultural objections. For instance, leaders from the Bharatiya Janata Party (BJP) and other conservative factions argued that homosexuality was “against Indian culture,” ignoring the rich pre-colonial traditions that celebrated diverse sexualities.

Despite legal progress, social acceptance lagged. The 2018 verdict, while a legal triumph, did not immediately dismantle deeply ingrained prejudices. Many LGBTQ+ individuals continued to face familial rejection, workplace discrimination, and societal hostility. The media’s portrayal of queer characters, often as stereotypes or comic relief, further perpetuated negative perceptions, particularly among younger generations.

The Role of Art and Literature

Art and literature have played a crucial role in challenging these stereotypes and amplifying queer voices. Indian cinema, historically dominated by heteronormative narratives, began to shift in the late 20th and early 21st centuries. Films like Fire (1996) by Deepa Mehta, which depicted a lesbian relationship, sparked controversy but also opened conversations about same-sex love. More recent films, such as Aligarh (2015) and Margarita with a Straw (2014), portrayed queer characters with nuance and empathy, contributing to greater visibility and understanding.

Literature also served as a powerful medium for queer expression. Writers like Mahesh Dattani, whose plays like On a Muggy Night in Mumbai explored gay relationships, challenged societal norms. The 2018 Supreme Court judgment itself drew on literary references, quoting poets like Johann Wolfgang von Goethe, Lord Alfred Douglas, and Leonard Cohen to underscore the universal nature of love and identity. Justice Nariman’s invocation of Douglas’s phrase, “The love that dare not speak its name,” highlighted the historical silencing of queer voices and the need for their liberation.

Musical Context: Soundtracking the Queer Movement

Music as Resistance and Expression

Music has long been a medium of resistance and identity for marginalized communities, and India’s LGBTQ+ movement is no exception. From folk traditions to contemporary pop, music has provided a space for queer individuals to express their identities and challenge societal norms. In pre-colonial India, devotional music, such as the bhakti and Sufi traditions, often used homoerotic imagery to convey spiritual longing. For example, the poetry of Bulleh Shah and Amir Khusrau, set to music, celebrated love in ways that transcended gender boundaries.

In the modern era, queer artists and allies have used music to advocate for acceptance. The rise of independent music scenes in urban India, particularly in cities like Mumbai and Bangalore, has given queer musicians a platform to share their stories. Artists like Sushant Divgikar, a drag performer and singer, have used their music to challenge gender norms and celebrate queer identity. Songs like “Tere Liye” by Yo Yo Honey Singh, while not explicitly queer, have been adopted by the community for their themes of love and freedom, resonating at pride marches and queer events.

Bollywood music, a dominant force in Indian culture, has also begun to reflect changing attitudes. While earlier Bollywood songs often mocked or stereotyped queer characters, post-2018 films like Ek Ladki Ko Dekha Toh Aisa Laga (2019) featured songs like “Ek Ladki Ko Dekha” that subtly addressed same-sex love, marking a shift toward inclusivity. Music festivals, such as the Delhi QueerFest, have further amplified queer voices, blending traditional Indian music with contemporary genres to create spaces of celebration and resistance.

Pride Marches and Musical Solidarity

Pride marches across India, from Delhi to Kolkata, have become vibrant spaces where music and activism intersect. These events often feature performances by queer artists and allies, with songs that range from traditional folk to electronic dance music. The 16th Kolkata Rainbow Pride Walk in 2017, held just months before the 2018 verdict, featured musical performances that energized participants and fostered a sense of community. Songs like “Born This Way” by Lady Gaga, while Western in origin, have become anthems at Indian pride events, symbolizing universal acceptance.

Local artists have also contributed to the movement. For instance, the band Indian Ocean’s fusion of folk and rock has been featured at queer events, with lyrics that speak to themes of freedom and identity. These musical expressions not only provide emotional support but also challenge the cultural narrative that homosexuality is “foreign” to India, reinforcing the historical acceptance of diverse sexualities.

Implications of the 2018 Verdict

Legal and Social Impact

The 2018 Supreme Court verdict was a watershed moment for India’s LGBTQ+ community, affirming their right to love and live without fear of prosecution. The judgment emphasized “constitutional morality” over “social morality,” a concept that prioritizes constitutional rights over societal prejudices. This principle has far-reaching implications, setting a precedent for future cases involving minority rights.

Legally, the verdict removed the threat of criminalization for consensual same-sex acts, but Section 377 remained in force for non-consensual acts, bestiality, and sexual offenses against minors. The Protection of Children from Sexual Offences (POCSO) Act of 2012 further addressed concerns about child abuse, ensuring that the partial repeal of Section 377 did not weaken protections for vulnerable populations.

Socially, the verdict emboldened many to come out to their families and communities, as seen in the increased visibility at pride marches post-2018. However, challenges persist. Transgender individuals and lesbians continue to face disproportionate harassment, often under other legal provisions. Workplace discrimination, familial rejection, and lack of legal recognition for same-sex unions remain significant hurdles. Activists like Anjali Gopalan of the Naz Foundation have called for broader civil rights, including marriage equality and inheritance rights, to ensure full equality.

Global Context and Comparative Perspectives

The repeal of Section 377 placed India among a small group of former British colonies that have decriminalized homosexuality, including Australia, Fiji, Hong Kong, and New Zealand. However, over 40 countries, many with colonial-era laws similar to Section 377, continue to criminalize same-sex relationships. Singapore’s Section 377A, for instance, remained in place until 2022, despite similar legal challenges. The Indian verdict has inspired activists in these countries, demonstrating the power of judicial activism in advancing human rights.

The judgment also highlighted India’s unique approach to constitutional law. Unlike Singapore, where courts have historically deferred to parliamentary authority, India’s Supreme Court has embraced judicial activism, particularly in cases involving fundamental rights. The concept of “constitutional morality,” articulated in the 2018 verdict, has become a cornerstone of Indian jurisprudence, influencing debates on issues like women’s rights and religious freedom.

Challenges and the Path Forward

Ongoing Social Stigma

Despite the legal victory, social acceptance remains elusive for many in India’s LGBTQ+ community. Families often pressure queer individuals into heterosexual marriages, and workplace discrimination is rampant. Medical professionals, too, lack adequate training on LGBTQ+ health issues, leading to reluctance among community members to seek care. Educational initiatives, as advocated by activists like Jayna Kothari, are essential to address these gaps and foster acceptance.

Policy and Legal Reforms

The 2018 verdict was a significant step, but it did not address broader civil rights, such as marriage, adoption, or inheritance. The government’s neutral stance during the hearings reflected a reluctance to proactively support LGBTQ+ rights, leaving the burden on the judiciary. Activists are now pushing for comprehensive anti-discrimination laws and amendments to personal laws to recognize same-sex unions. The Transgender Persons (Protection of Rights) Act, 2019, while a step forward, has been criticized for its inadequate protections and bureaucratic hurdles.

Cultural Transformation

Changing societal attitudes requires a cultural shift, and media plays a critical role. Mainstream cinema and television must move beyond stereotypes to portray queer individuals as multifaceted characters. Educational campaigns, community dialogues, and inclusive policies in schools and workplaces can further normalize diverse identities. The growing visibility of queer role models, from athletes to artists, is a promising sign, but sustained efforts are needed to dismantle centuries of prejudice.

Conclusion

The repeal of Section 377 in 2018 was a triumph of justice, courage, and resilience, marking a turning point in India’s journey toward equality. By striking down a colonial relic, the Supreme Court not only restored dignity to millions but also reaffirmed the transformative power of the Indian Constitution. The verdict’s emphasis on constitutional morality, supported by literary and philosophical references, underscored the universal nature of love and identity.

Yet, the journey is far from over. The legal victory must be accompanied by cultural and social transformation to ensure that India’s LGBTQ+ community can live freely and fully. Music, art, and literature will continue to play a vital role in this process, amplifying queer voices and challenging outdated norms. As India moves forward, it must reclaim its pre-colonial legacy of inclusivity, weaving a future where all can love and live without fear.

History owes LGBT people an apology.