On Thursday 5th September, 2018, the Supreme Court of India issued a historical ruling
reversing over 150 years of criminalization of the country’s LGBT community. The
judgment handed down by a five judge bench led by the country’s Chief Justice ruled
that Section 377 of India’s penal code, that made consensual same sex acts between
adults a crime, was unconstitutional.
A similar case, challenging sections of Kenya’s Penal Code that criminalize same sex
intimacy is currently before the High Court in Nairobi with a ruling expected in the near
future. The case which is before a three judge bench is backed by rights organisation,
the National Gay and Lesbian Human Rights Commission (NGLHRC).
Reacting to the Indian Supreme Court ruling, Ms. Njeri Gateru, Executive Director of
the NGLHRC said:
“The news out of India is truly something to celebrate and we congratulate our LGBT
family in India on this victory. Changing the law is a monumental step in beginning to
address the systemic violence targeting LGBT persons across the globe.
The Supreme Court’s insistence that colonial laws, cannot be used to continue to justify
oppression of one group is also very important. We must begin to reclaim our own
notions of fairness and equality as envisioned in the progressive Constitutions we have
passed since that dark colonial era.”
Laws such as those in India and Kenya are relics of British colonial history that saw
anti-sodomy laws introduced in many of its colonies. Currently, there are
approximately 71 countries across the world that criminalize same-sex relationships.
Recently, UK Prime Minister, Theresa May, apologized for her country’s role in the
criminalization of LGBT people across the Commonwealth.
In its ruling, the Supreme Court of India noted, among other things:
“... this case involves much more than merely decriminalising certain conduct
which has been proscribed by a colonial law. The case is about an aspiration to
realise constitutional rights. It is about a right which every human being has, to live
with dignity. It is about enabling these citizens to realise the worth of equal
NGLHRC, which provides free legal assistance to LGBT individuals in Kenya, has
found that Sections 162, 163 and 165 of the Penal Code of Kenya are used to justify
continued violence and discrimination against the LGBT community and has long
advocated for decriminalization.
The next scheduled court date for its decriminalization challenge is September 20th in Nairobi.