After defeat, India's gay rights movement sees new political path

The Supreme Court ruling that re-criminalized homosexuality in India sparked a new receptivity to gay rights from several top Indian leaders.

Rafiq Maqbool/AP
A gay rights activist's shadow is cast on a rainbow-colored flag at a protest against a Supreme Court verdict that upheld section 377 of the Indian Penal Code that criminalizes homosexuality, in Mumbai, India, Sunday, Dec. 15, 2013.

The Indian Supreme Court’s recent ruling that homosexuality is still a crime in the world’s largest democracy has pushed the country’s burgeoning gay rights movement in a new direction – politics.

India’s gay rights movement has existed since at least 1994, when the first public protest to demand gay rights was held outside the New Delhi police headquarters. But it’s never reached the level of a mass movement, and politicians have largely remained silent on the topic, even when the Delhi High Court ruled in 2009 that gay sex was no longer a crime between consenting adults.

The decision of the Supreme Court on Dec. 11 to strike down that 2009 ruling and revert to a colonial-era law that criminalizes homosexuality – and protests in response across India – has changed the political calculus for several of India’s top leaders.  

In a first, Sonia Gandhi, the president of the ruling Congress party and the most powerful politician in India over the past two decades, said parliament should take up gay rights – a shift from 2009 when the Congress Party was relatively silent on the Delhi Court ruling. Last Friday the government asked the Supreme Court to review the decision.

“We are proud that our culture has always been an inclusive and tolerant one,” Ms. Gandhi said in a written statement. “I hope that parliament will address this issue and uphold the constitutional guarantee of life and liberty of all citizens of India.”

Other politicians who have previously been silent on gay rights voiced their support, including the finance minister and the law minister, Kapil Sibal, who told reporters that, “In this 21st century, we must move with the times. We should not jeopardize those relationships and consider those as criminal activities.”

Support is by no means unanimous, especially among politicians in the Hindu-nationalist Bhartiya Janata Party (BJP) – which is expected to do well in national elections this spring – many of whom oppose homosexuality on the grounds that it undercuts moral values and poses health risks.

Gay rights activists are taking the newly vocal support from politicians as a sign that there’s “No Going Back” from the 2009 ruling that they saw as a landmark liberation. Activists using that slogan have protested across India, and organized a “Global Day of Rage” in more than 40 cities in India and abroad shortly after the ruling.

“We always knew we had to politicize our battle. But we never realized it would become a mainstream issue. The rest of society is beginning to see what this is about,” says Mumbai-based activist Ashok Row Kavi, founder of the Humsafar Trust, a support group for gay men. 

Evolving perceptions?

Gay rights activists see the 2009 Delhi ruling that overturned the 1860 law criminalizing homosexuality as a turning point when a “code of silence” was broken. 

"Before 2009 [homosexuality] was not dinner table conversation," says Delhi-based activist Mohnish Kabir Malhotra.

Advocates and opponents of homosexuality both argue that India’s culture embraces their point of view. Gay rights supporters point to bodies of literature that include gay imagery and a centuries old tradition of a so-called “third gender” of transsexuals who were believed to fulfill Hindu myths of fertility power.

Other Hindu leaders and organizations, like the Vishwa Hindu Parishad or World Hindu Council, say homosexuality goes “against the culture and family system in India.” Indian Muslim and Christian leaders have also taken stands against homosexuality.

Since the 2009 court ruling, activists say the level of support for homosexuality has been rising. After the first court ruling, there was a remarkable lack of public anger or protest against the community.

Gay pride parades reached small cities outside Delhi, Mumbai, Kolkata, and Bangalore for the first time in 2009. Travel companies and bookstores targeting the community developed, and Bollywood started tackling the subject directly.

Evidence remains of the discrimination that activists say they are fighting. Last month, 14 gay men in the southern state of Karnataka were arrested under Section 377. In 2010, a gay professor at the Aligarh Muslim University near Delhi was outed using hidden cameras, and was soon found dead in a suspected suicide.

The Supreme Court judgment has given rise to the debate over whether the time is ripe for LGBT groups to give up the legal route and pursue their battle politically.

"We keep stressing that the court has a constitutional responsibility to protect the rights of minorities, but from Day 1 this was not a strictly legal battle. The legal route has been used by the community for pushing forward a sociopolitical battle," says Arvind Narrain, a lawyer for the advocacy group Voices Against 377.

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