Arko Datta / Reuters A pride rally in Mumbai, July 2, 2009.

Rainbow India

New Delhi's Evolution on Gay Rights

On February 2, a raucous, rainbow-colored crowd gathered outside the gates of India’s Supreme Court in New Delhi. Inside, a group of lawyers petitioned to strike down a colonial-era law criminalizing homosexuality. According to the law, known as Section 377, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”

The fight for gay rights in India has been turbulent. As recently as 2009, the Delhi High Court declared Section 377 unconstitutional, a milestone for the movement. Yet in December 2013, in a surprise judgment, India’s Supreme Court chose to reverse that verdict. The Supreme Court, led by the octogenarian Justice G. S. Singhvi, who retired immediately after the decision, passed the baton to the parliament, giving the legislature the right to change the law by vote.

On February 2, a three-judge bench of India’s Supreme Court decided to reopen the debate on the anti-sodomy statute, ordering a five-judge bench to reexamine the 2013 verdict. Menaka Guruswamy, a lawyer representing the petitioners, welcomed the news. “The whole issue will be heard afresh,” she said. Anjali Gopalan of the Naz Foundation, the organization that filed the Supreme Court petition, said she’s relieved the court will reexamine the verdict, but also wary. “I’m scared to be positive, because I never expected the last judgment to be so negative,” she said.

Meanwhile, outside of the court, politicians, responding to a shift in public opinion, have begun to embrace gay rights. India’s Congress Party has taken the lead on legalizing homosexuality, with senior party member Kapil Sibal fighting the case at the Supreme Court, parliamentarian Shashi Tharoor advocating for the repeal of Section 377 in Congress, and Rahul Gandhi, the vice president of the party, speaking openly in favor of the Delhi court’s 2009 decision. Arvind Kejriwal, leader of the upstart Aam Aadmi Party, has also publicly pledged his support for gay rights.

Even India’s ruling right-wing party, the Bharatiya Janata Party (BJP), has changed its tune. Although many of its members strongly supported the Supreme Court’s 2013 decision at the time, important members of the party are now publicly supporting legalizing homosexuality. For example, Arun Jaitley, a senior member of the BJP and India’s finance minister, said in November, “When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound a view that they should be jailed. The Delhi high court’s view appears more acceptable.” This represents definite progress for a party whose most conservative members have found a way to oppose Valentine’s Day as being against Indian culture.

Yet there remain factions within the BJP that continue to support 377, including India’s home minister, Rajnath Singh, who has reportedly said, “Homosexuality is an unnatural act and cannot be supported.” Indian Prime Minister Narendra Modi has also been noticeably silent on the subject. He may be unwilling to voice support for gay rights for fear of alienating members of the far-right Rashtriya Swayamsevak Sangh, which asks many of its members to remain celibate and which provided a substantial portion of Modi’s electoral support.

Gay rights activists celebrate as they watch a news channel covering the Supreme Court's decision to revisit Section 377, Mumbai, February 2016.

Gay rights activists celebrate as they watch a news channel covering the Supreme Court's decision to revisit Section 377, Mumbai, February 2016.

A NEW INDIA

India is the youngest nation in the world, with 28 percent of its population between the ages of 10 and 24. It is this young, forward-thinking population that is leading India’s sexual revolution. The Supreme Court took a step toward recognizing India’s changing mores in April 2015, when it officially declared transgender Indians to be a “third sex,” granting them equal rights under the law, including those of marriage, adoption, divorce, succession, and inheritance.

Given shifting public sentiment, it is inevitable that Section 377 will ultimately be reversed, whether by India’s Supreme Court or its parliament. But such proceedings could take years. Indeed, the battle against Section 377 has already been under way for nearly two decades. 

A victory in the battle against Section 377 may be India’s first step toward sexual freedom, but it certainly will not be the last.

On February 6, at the annual LGBT parade in Mumbai, more than 8,000 people took to the streets. Many young gay people marched with their families and friends. Two years ago, at the same parade, the parade had just 1,000 people, and most wore masks and scarves to shroud their identity. This time, a number of Bollywood stars, journalists, and other public figures delivered speeches supporting gay rights.

A gay rights activist pins a badge onto another during a gathering in Mumbai, February 2016.

A gay rights activist pins a badge onto another during a gathering in Mumbai, February 2016.

One of the marchers, a young college student named Kapil, has a rainbow flag draped across his body. “I am gay, and I am proud of it, and I will do whatever it takes to protect our rights,” he said. A young straight couple held a poster that read “Pyar” (Love). They said they had shown up to support their gay friends. “It’s ridiculous to try and curb love in any way,” the young man, Amol Singh, said. “We are the biggest democracy in the world and this law is against the fabric of our nation.” 

Even if Section 377 is defeated, life for gay Indians will remain a struggle. According to the 2015 Gay Happiness Index, an online survey of 115,000 men in 127 countries, India ranks at a lowly 81. For millions of gay men and women in India’s small towns and villages, homosexuality is still considered a crime—one that is often met with violence in the form of beatings, castrations, and murder.

A victory in the battle against Section 377 may be India’s first step toward sexual freedom, but it certainly will not be the last.

Related Articles

This site uses cookies to improve your user experience. Click here to learn more.

Continue

Close We are offering free and open access for a short period of time. Read more about why we are doing this.

Days
Hrs
Min
Sec