back

Blog | 31 Jan 2019

Repeal of Section 377: the ongoing battle for LGBT+ rights in India

This opinion piece forms part of our IMPACTxAsia blog series

Repeal of Section 377: the ongoing battle for LGBT+ rights in India

On 6 September 2018, the Supreme Court – the highest court in India - made a significant ruling that has brought fresh hope and optimism for the country’s LGBT+ community estimated at 8% of India’s population. Long the source of controversy and back and forth debate, the repeal of Section 377 of the India Penal Code which criminalises homosexuality, is a positive response to the growing call for the end to discrimination and greater acceptance of sexual minorities in India. For the business community in India this judgement is significant too.  For it brings with it not just renewed opportunity, but also permission, to address a topic that for many has been a stumbling block to fulfilling their full commitment to diversity and inclusion. 

 

What did S377 Mean for Indian LGBT+ Rights 

Under the colonial era law, LGBT+ people themselves were not criminalised, however, homosexual acts were and could result in up to a life in prison. The law, which criminalised “carnal intercourse against the order of nature with any man, woman or animal,” was most commonly used as a tool to harass and threaten the LGBT+ community, although it could in theory be applied to heterosexual couples.  

The 6 September 2018 ruling “reads down” that law, limiting its scope so that it can no longer apply to sexual acts in private between consenting adults.  

 

The Ongoing Legal Debate 

The legal battle around S377 began long before the 2018 ruling, but this most recent update began when the Supreme Court decided to hear curative petitions in 2014. This is significant, as curative petitions have been allowed only a small handful of time in Indian history. Curative petitions are a rare part of Indian Law, a last resort correction which can be used to plead against any judgement from the Supreme Court (in this case, the 2013 ruling which upheld the constitutionality of S377). 

In 2016 the first curative petition was filed under article 32, arguing that S377 violated rights to equality, non discrimination, privacy, and dignity. This matter was listed for hearing by a bench of constitutional judges in 2018; at this point, additional petitions were filed by stakeholders in the community. On 6 September 2018, the reading down of S377 of the Indian Penal Code was official, with the chief justice saying “Section 377 insofar as it criminalises consensual sexual acts between man and man, man and woman or woman and woman is unconstitutional and is struck down.”  

This ruling is not a complete removal, but it is still a landmark victory and allows for new growth, renewed confidence and pride. It cannot change any concluded cases, but as soon as it was passed the ruling down could begin to affect those cases in trial and appeal, as well as prevent new trials involving two consenting adults. 

 

Implications for Employers 

The recriminalisation of homosexuality in 2013 understandably put the brakes on many companies’ approach to LGBT+ inclusion – this in contrast to their steadfast commitment to promoting diversity and inclusion in other areas. However, as Indian society comes to terms with a new era of openness and acceptance towards sexual minorities – a culture change that will not happen overnight, there is an important and critical role that companies can play. In taking proactive steps to create inclusive workplaces for LGBT+ employees, companies can act as catalysts of change – both in their own organisations and beyond.  

In this respect, it is clear that there is some significant work to be done.  Indeed the results of Community Business’ first D&I in India Best Practice Benchmark, conducted with 34 companies just ahead of the 6 September 2018 ruling highlight that: 

  • Just 38% of companies have a clearly stated commitment to LGBT+ inclusion in India 
  • Only just over half (52%) provide LGBT+ inclusion diversity training 
  • Less than half (41%) provide specific benefits and/or support to their LGBT+ employees 
  • Only just over a quarter (28%) have an LGBT+ employee network in India

Those who continue to struggle with the motivation for focusing efforts on LGBT+ inclusion are encouraged to consider the wider business case for diversity and inclusion. Beyond the moral case for treating all with dignity and respect, it is important to recognise the huge uplifts in productivity and performance that occur when employees do not need to conceal their true identity but can be themselves at work. Employers are encouraged to refer to Community Business’ key resource guide for employers: Creating Inclusive Workplaces for LGBT Employees in India first published in 2012. 

With the tide of change and legislation once again in our favour, now is the time to act. As we look forward to continued dialogue and engagement with those concerned about LGBT+ inclusion, Community Business will continue to work with organisations in India to drive momentum and help companies realise their potential for leading and affecting positive change. 

 

About the Authors: Kate Vernon, Executive Director, Community Business & Adrienne Davis, Programme Manager LGBT+ & Disability, Community Business