Legalizing Homosexuality in India: What It Means

The activist, author, and lawyer Arvind Narrain weighs in on his country’s recent de-criminalization of homosexuality.The news made headlines around the world on July 3, 2009, as the Delhi High Court in India stated that consensual sex between two adults is a legal act, overturning a 148-year-old colonial-era law that criminalized homosexuality. The judges, much to the surprise of the country, said that this law violated sections of the Constitution and had to be repealed. But the journey doesn’t end here. A petition challenging the judgment has been filed in the Supreme Court of India, which on Monday, July 20, 2009, declined to stay the High Court verdict, saying it would wait for the government to come out with a definite stand on the issue.Last week, GOOD spoke to Arvind Narrain, a human rights activist and a lawyer with the Alternative Law Forum, Bangalore, of which he is a founder member. He is also the author of Queer: Despised Sexuality, Law and Social Change (2004) and co-editor of Because I have a Voice: Queer Politics in India (2005). He offered his take on the implications of the ruling, the nation’s changing cultural landscape, and whether there’s yet a place in India for the religious gay man.GOOD: As I understand, the High Court judgment applies to all of India. For those not familiar with the Indian legal system, can you explain how this works?ARVIND NARRAIN: Both the High Court and the Supreme Court can decide the constitutionality of legislation. So there is no ambiguity and no doubt about the fact that the Delhi High Court decision applies across the length and breadth of the country. To think of it very logically, India, unlike the United States, doesn’t have a system of state constitutions, there’s only one constitution.G: There have been very few prosecutions under this law; the discrimination against the LGBT community has been mostly social. Do you think that will change because of this ruling?AN: One way to look at it is once the criminal law is off your back, you’re fighting with your hands untied. So then it becomes a debate like all other things, all other persecuted and marginalized segments of society. It just gives you a little more space to fight that particular battle.Marriage is an institution, very important and central to the oppression of a certain section of the LGBT community, particularly if you take the phenomenon of lesbian suicides wherein they’re forced to get married, separately, to men and so decide they’d rather kill themselves. There, the law has very little to do with it. It’s not the law, but the social institution called family, the social institution called marriage. And changing that is a Herculean task, it’s something which takes a different level of work in imagination altogether.G: How does the ruling affect gay Indians in their daily lives?AN: First, the imaginative possibilities it has opened up. Some people have been quoted in the media as saying they wanted to celebrate, so they got married. The judgment doesn’t affect the law on marriage, but it opened up a realm of possibility, which people seem to take forward.In fact, people have been open about their sexuality for the first time in families and in workspaces. So it’s really liberated people in a way in which law is very seldom a part of. It’s not often that you get such a sense of relief from a change in the law. That’s the larger level. But the more technical point is what it does is ensure that your intimate relationships are not criminalized within the sphere of your own life. Tomorrow, if a gay man is dismissed from employment or denied housing, he can take it forward in court.G: Is there a place in India for the religious gay man?AN: I think it is important to acknowledge that there were sections of the Muslim clergy, as well as Hindu and Christian groups, which clearly said that they might have problems with homosexuality, but didn’t believe it should be criminalized. They said they have many opinions-don’t eat beef, for instance-but it doesn’t become the law of the land. Similarly, many didn’t see why their opinion on homosexuality should become the law of the land.Then, there are sections of the religious opinion that are also supportive of the human rights of gay, lesbian, bisexual, and transgender people and that section exists in all religions as well. I think the public perception is to some extent affected by a lot of media attention on just four or five people who express strong opinions against homosexuality. The majority is happily going about its own business. So it’s a mixed picture. It’s not fair to say that religion uniformly opposes homosexuality. We refuse to be pitted against the religious leaders; we’re religious as well and it is part of who we are. And our religion doesn’t condemn it.G: Personally, what does this judgment mean for you?AN: I have been working on these issues since 1997 in the National Law School, and it’s 2009. It’s quite a significant step, which kind of soothes you-the way things have changed in this country in the last 12 years. It shows you that there’s a younger generation, which is very open to different ways of living and thinking. It tells you that the country you lived in, in 1997, is not the country you live in, in 2009.