India’s Supreme Court Overturns Colonial-Era Ban on Same-Sex Relationships

In September 2018, India’s Supreme Court overturned the country’s colonial-era ban on same-sex relationships. The landmark ruling gave rise to celebrations across India and throughout Southeast Asia. Activists hope the ruling sparks similar reform in other nations. The Supreme Court rule noted that consensual same-sex relationships are not criminal in nature. Also, the Supreme Court noted that people in same-sex relationships in India are to receive all the protections offered in the Constitution of India.

History Behind India’s Supreme Court Ruling on Section 377

British Rule Over India

The law prohibiting same-sex relationships is known as Section 377. As part of the Indian Penal Code (IPC), Section 377 became law in 1861 when India was under British rule. Violations of Section 377 could have resulted in severe punishments. These punishments included the possibility of imprisonment for life, or a term up to 10 years, as well as a monetary fine.

First Challenge to Section 377

The challenge to Section 377 began in July 2009. This is when the Delhi High Court first decriminalized same-sex relationships among consenting adults. The Delhi High Court was hearing Public Interest Litigations (PILs) filed by non-government organizations. One such organization was The NAZ Foundation (India) Trust. NAZ Foundation has been working on sexual health matters in India since 1994.

Setback at the Delhi High Court

However, the Delhi High Court restored Section 377 in 2013 after appeals from several religious and conservative groups. In that decision, the court noted that Parliament, and not the courts, should take up the issue.

New Approach at India’s Supreme Court

Activists regrouped and took a different approach on the issue in 2016. Their new challenge focused on Section 377 as violating their rights to equality and liberty guaranteed under the India Constitution. July 2018’s hearings at India’s Supreme Court on the challenge included arguments that the law was legally inconsistent with other recent court rulings. One such ruling in 2017 guaranteed the constitutional right to privacy.

What does this mean?

With this ruling from India’s Supreme Court, the government in India will no longer be able to use Section 377 to prosecute consenting adults in same-sex relationships. India nationals in same-sex relationships will be accorded all of the India Constitution’s protections. While the ruling did not strike Section 377 from the IPC, the government can no longer use it to prosecute people in consensual same-sex relationships. It is important to note that India’s Supreme Court ruling on Section 377 applies to India nationals. The ruling may not apply to foreigners in India.

What should employers expect?

Employers in India should expect that additional legal challenges and rulings will follow. These challenges may be focused on issues such as marriage and parenting rights. Rulings that alter the current landscape of same-sex relationships may result in future employer obligations. Such obligations might include extension of health care benefits or similar programs. Many companies in India are eager to adopt inclusive policies and have been waiting for India’s Supreme Court to make its ruling on Section 377. As a result of this ruling, companies can now proceed to extend benefits to same-sex partners.

What should employers do?

Employers in India should review India’s Supreme Court rulings to determine how they might proceed with their employment plans. Employers should also be aware that future rulings will likely emerge over the next several years. As a result, these rulings may impact the employer’s ability to accommodate employees in same-sex relationships. Companies that are eager to provide benefits for their employees in same-sex relationships should work to ensure equal and fair treatment for all employees.


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