Asia
5:48 pm
Thu December 12, 2013

Indian Supreme Court Reinstates 150-Year-Old Gay Sex Ban

Originally published on Thu December 12, 2013 6:44 pm

Transcript

AUDIE CORNISH, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.

MELISSA BLOCK, HOST:

And I'm Melissa Block.

Protests have erupted in New Delhi after India's supreme court reinstated a law that criminalizes homosexual acts. The decision brings back a colonial era law introduced under the British. A lower court had previously ruled that statute unconstitutional. But yesterday, the supreme court declared that only parliament can change the law.

Joining us to discuss the ruling is Manu Bhagavan, who teachers South Asian history and human rights at Hunter College and the Graduate Center of the City University of New York. Professor Bhagavan, welcome to the program.

MANU BHAGAVAN: Thank you for having me.

CORNISH: So the law that criminalized gay sex was tossed out in 2009 by Delhi's high court. Now, the supreme court has reversed that. What happened that led up to this?

BHAGAVAN: I think that there was a moment of great celebration after the Delhi High Court ruling. This angered a number of people, perhaps a small minority of religious leaders and politicians who wanted to take advantage of this, who felt that there perhaps might be some traction to gain in appealing to conservative sentiments. And so their case was taken to the supreme court. I think many people thought, though, that the supreme court was going to rubber stamp the Delhi High Court opinion. And so it was really a shock when that didn't happen.

BLOCK: And as you looked through the supreme court ruling, how did the judges explain what they've decided here?

BHAGAVAN: They use a number of arguments which are basically outlandish and pseudoscientific. Things like the claim that there are only a limited number of LGBTQ people in India. And that, therefore, they don't warrant constitutional protections. And then, secondly, that homosexual acts are against "nature," quote/unquote. And so, using logic of this sort, they just simply say that it stands.

BLOCK: In the recent past when this law was on the books, have people in India been prosecuted for consensual homosexual acts? I mean, is this law enforced?

BHAGAVAN: The opinion claims that very few people have been prosecuted under Section 377. That is quite likely true. Nonetheless, it's not so much a matter of prosecution as what it allows the police and the state to do. And essentially, it empowers them to harass, to intervene, to demand bribes, to indulge in corruption. All those things certainly have happened.

BLOCK: You know, India is a deeply religious society, also conservative in many attitudes. Do you really think that the supreme court ruling is out of step with the majority of the Indian people?

BHAGAVAN: I believe so. I also think that it is the essence of the Indian Constitution. The Indian Constitution is a progressive constitution, which is particularly focused on protections of rights of minorities. So, whether or not the majority necessarily holds this opinion, it is constitutionally mandated that the country follow this.

That said, trends are moving in this direction anyhow. This is perhaps best illustrated by the fact that a number of very prominent, high profile Bollywood movies have addressed the issue and have talked about the possibility of gay families as being part of the Indian ethic and norm. And I think there's a commitment now on the part of activists to continue to fight, and I think there is also a move to push the parliament to act politically to remove Section 377.

BLOCK: What do you think the likelihood is that the Indian parliament would again decriminalize homosexual acts in India?

BHAGAVAN: I think that there's hope and political space for that generated by some new political forces that are emerging thanks to recent elections. So I think - I'm hopefully, but it's a political question and it's a question of movement, so people have to force the issue.

BLOCK: Professor Manu Bhagavan teaches South Asian history and human rights at Hunter College and the Graduate Center of the City University of New York. Professor Bhagavan, thanks so much.

BHAGAVAN: Thank you for having me. Transcript provided by NPR, Copyright NPR.