History of Gay Rights in India

Gender and sexuality have always been a pivotal point of discussion in our country but sadly there has not been much scope of acceptance in these discussions. We have always tended to be rigid in our thoughts and refused to accept any ideas which we are not feeling comfortable with. Especially, with the rise of the Hindu right-wing, the links between nationality and gender or sexuality have entered a new phase. People have ever since tried to back their non-progressive ideas with examples from Hindu culture. There are numerous articles found on the internet which tells the story of the legal battle India has fought over three decades to decriminalise section 377 of the Indian Penal Code. But this article depicts the story before these years. It shows that gay rights and their acceptance is not a contemporary issue but rather has been denied and fought over since ages. It talks about the history of India and its view of homosexual relations.

History

Sexuality and gender of people in ancient India were often determined through their caste, gender and community. Ruth Vanita’s analysed many legal and religious texts and medical treaties in ancient India and this strongly supports our earlier presumption about ancient India.

In Vanita’s notes, non-penetrative and non-heterosexual sex has been categorized lower than penetrative and heterosexual sex, but at the same time, there doesn’t seem to be a huge or uniform punishment for this. Rather, various crimes observe much severe penalty than non-heterosexual relations. Also, these punishments seem to be dependent on many more factors, for example, defiling a virgin was considered to be much more dangerous than defiling a non-virgin and also acts of adultery invited much more serious punishment than non-heterosexual acts.

If we observe the Arthashastra we see that it has the same tolerance for sexual acts between two men as it has for robbery, which is not very high. But a woman imposing sex on another is considered much more heinous than either of the earlier acts.

In the Manu Smriti we see that a man having sex with another attracts a minor penalty, and the same is taken from a man having sex with a non-human female or a menstruating one. A woman defiling a virgin girl is punished much severely. Thus, the punishments of such acts not only kept changing with society but also with the intricate rulings of the patriarchal caste-based society. And according to such guidelines, it is often observed that defiling a “marriageable” virgin by a woman is much more heinous than any other crime that could be reported.

Condition in India

Since aeons, transgenders of India have been organizing themselves into communities, which are ordinarily called Jamaat. The system was such that usually an older Hijra was considered to be the ‘guru’ with several of their ‘chelas’ or ‘acolytes’. These acolytes were considered to be novice aravanis. This process was considered a rite and had several rituals which were to be performed in order to be accepted as a chela and to enter in a jamaat. 

Stereotyping is so common in India that it has become a tradition. It has been believed by a large number of people for a very long period that being homosexual is a consequence of being sexually abused in their childhood. A gay relationship is often believed to have a hyper-masculine man who adopts the role of the “man” in the relationship and a feminine male who is the “woman” of the relationship. As much as we would like to believe that such discriminations are in the past, people are still seen asking questions about how a certain gay couple doesn’t seem to have an effeminate male and therefore how do they decide who is the man of the partnership?

The Indian culture has always given itself very few chances to accept other traditions and views especially western and progressive ones. They have always considered their beliefs to be the ‘purest’ which would be contaminated when allowed to be mixed with other cultures. Social and family norms have since ages held a very valuable position in the process of developing Indian laws, even more than state laws. The tools used to keep the deviants in place were not the usual law and order practices like police and courts but rather self-restraint and shyness. And till the current date, such practices are still very much in use.  Also, culturally the homosexuals were considered to be deviants.[1]

In India, section 377 of the IPC[2] deals with unnatural offences which includes sexual acts between the same gender. Lord Thomas Macaulay or the one who drafted the IPC was also the one who detested and prohibited any discussion regarding this Section and the ‘heinous offence’ it penalizes.

The first reported case about this section was against a hijra. In Queen v Khairati, 1884, Justice Straight, sat down to decide on a case where a person who occasionally crosses dressed was diagnosed with syphilis and showed signs of the habitual sodomite, had been involved in sodomy. Though Justice Straight, quite ironically one might say, appreciated the police for keeping in check such disgusting practices, he could not convict the person as neither the other person nor the time and place of commitment could be determined.[3]

On the eve of 2nd July 2009 when the High court of Delhi, finally gave a verdict for Naz Foundation v NCT, Delhi & Ors., decriminalising consensual sex between adults it was considered to be the christening of what has considered the process of queers becoming subjects of rights.[4] The court had declared this section to violate of rights to equality, privacy, and dignity of queer people. It stated that the state wasn’t in a position to determine or choose their partners.[5]

Finally, on 6th November 2018, in the historical judgement Navtej Singh Johar v UOI[6], the Supreme Court decriminalised Section 377 in so far that it no longer criminalised consensual sexual conduct between adults of the same sex.

Protests

AIDS Bedhbav Virodhi Andolan (ABVA) was the first to organise a protest or rather a public demonstration in 1992 against the public harassment of gay people by the police. This was the first collective, major, documented and impactful protest against discrimination of gay people in India.[7] ABVA created a controversial yet rousing report on gay rights as well as queer desire named “Less Than Gay”. This report gave people a sight into queer people’s desires, experiences and fears. This report led the stonework which was eventually adopted by almost every queer activism organisation.[8] That was the start of a trend that led to many such protests that started getting national as well as international recognition.

After 10 years, another case was filed under this section, here against the staff of an office which dealt with HIV positive patients. They were arrested on the grounds of conspiracy to promote gay rights and two subsequent organisations which spoke for the rights of HIV patients were sealed.[9] That campaign ended with the 4 protesters finally being released after being held up in jail for a month. This campaign also saw major support from all the major cities of India and a renewed activist zeal.

A new representation called Rights of Indian Sexual Minorities (PRISM) was formed, which was the primary political organisation fighting for gay rights in India. This organisation also played a pivotal role in another activist group called Voices against 377.  ABVA, though formed in 1992, had its first protest in 1988 when two policewomen bravely came out to fight for social recognition and advanced to perform marital ceremonies. Both of these women were subsequently thrown of their jobs, under the term “long leave of absence”, but they had already ignited courage in the hearts of countless citizens of India and inspired more directional queer activism.[10]

This act of Leela and Urmila also led to a fact-finding article wrote by ABVA in 1999 broadcasting the suicide of two women, Mamta and Monalisa. This report pointed out how gay and lesbians are often trapped in a loveless life and their own homes become prisons for them as they are not allowed to live their identity, but rather what the society considers normal. ‘Fire’ was a film which was based on lesbian love and as soon as it was released it received wide criticism. This led to the formation of CALERI (Campaign for Lesbian Rights), which bought the debate of lesbian rights to the table.

Customs and Gay Communities

Customs is fluid, ever-changing and very difficult to define. Every particular community has its own sets of customs and India recognises and legalises customs which are mainly followed by upper and recognised classes. Courts accept certain practices as customs if they have been performed throughout history and are mentioned in multiple cases. When a ritual is performed repeatedly over some time, the courts are sometimes bound to accept it as customs. Since in most of the debates on gay rights, the defendants of section 377 continue to use customary practices as a defence, it is very contradictory to the fact that custom is never strict and imposing, but rather fluid and changing with times.

Reporter Rajiv Malik was asked about same-sex marriage in 2004 at the Kumbh Mela by Hinduism Today and he replied that whenever we hide something that we do, it usually means that we in our hearts believe that the deed is wrong. But when we come out and announce to the world about our beliefs maybe they would be agitated for some time and even refuse to accept a different point of view, but eventually, the world is bound to accept it. So, people should be given full liberty to live any way they want to as they would not listen to society ultimately.

Conclusion

When a state recognises differences and accepts the viewpoints of its citizens it rarely shows weakness on its part, but rather strength and agility which should be valued present in a state.[11] But, our state refuses to believe this to be true. For ages, our country has been proud of its traditions and unreasonable beliefs run deep in this country. From the Dharmashastras to the Indian Penal Code, every code of conduct in this country has repeatedly ostracised gays and lesbians and has turned a blind eye to their struggles.

But this has done nothing to break the spirit of the people of this country. Rather, with each passing day, they are going stronger and participating in more protests and marches across the country to shout out to the world what they believe in and why they think we should believe in it too. Their struggles have been truly awe-inspiring and it not nearly done. Though we might have finally decriminalised Section 377, we still have a huge road ahead of us and the citizens of this country have time and again shown that they are ready to walk the path with dignity and their heads held high.  


[1] Gurumurthy, S. 2009, ‘Shy society. Shameless debate’, Organiser, 12-19 July 2009. ͚Organiser is the official publication of the Rashtriya Swayamsevak Sangh͛ (RSS).

[2] Indian Penal Code, 1890, § 377.

[3] Queen-Empress V. Khairati I.L.R. 6 All 205.

[4] Naz Foundation v. Government of National Capital Territory of Delhi and Others, Delhi Law Times Vol. 160 (2009) 277.

[5] ibid.

[6] Navtej Singh Johar v UOI, W. P. (Crl.) No. 76 of 2016, Nov 6, 2018.

[7] ABVA Memorandum to the Commissioner of Police, New Delhi, 11.08.92 on file with the Alternative Law Forum.

[8] AIDS Bedhbhav Virodhi Andolan (ABVA). 1991, Less Than Gay: A Citizen’s Report on the Status of Homosexuality in India, Nov-Dec 1991. New Delhi: ABVA.

[9] Aditya Bandopadhyay, 2002, ‘Where saving lives is a crime: The Lucknow story’, in Fernandez Bina (ed.), Humjinsi: A Resource Book on Lesbian, Gay and Bisexual Rights in India. Mumbai: India Centre for Human Rights and Law.

[10] Jaisingh, Indira. 1999, ‘Gay Rights’, in Bina Fernandez (ed.), Humjinsi. Mumbai: Combat Law Publications, p. 92.

[11] National Coalition For Gay and Lesbian Equality v. Minister of Justice, [1998] {121 PCLR 1517 at para 81.

Aishani Chakraborty from Damodaram Sanjivayya National Law University, Visakhapatnam

Aishani is a first year law student and aspiring lawyer. She loves writing about prevalent socio-legal issues and other legal topics.” 

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