Challenging the Constitutionality of Restrictions on Same-Sex Sexual Relations: Lessons from India

In September 2018, in the Navtej Singh Johar case,1 India’s Supreme Court unanimously ruled that Section 377 of the Indian Penal Code (1860) (IPC) was unconstitutional and had to be read down insofar as it penalized any consensual sexual activity between two adults, be it homosexuals, heterosexuals or lesbians. The judgment marked the end of almost a quarter of a century of complex legal challenges and campaigning by lesbian, gay, bisexual and transgender (LGBT) organisations.2 Most of the Indian subcontinent was under British rule from 1858 to 1947.3 The IPC was the first codification of criminal law in the British Empire. The model was replicated in a number of other British colonies,4 but never in the United Kingdom (UK) itself. A successful war of independence ended colonial rule and led to the creation of India and Pakistan as sovereign States in August 1947.