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Homosexuality in India is generally considered a taboo subject by both Indian civil society and the government. There are 2.5 million male homosexuals in India according to National Aids Control Organization (NACO) estimation.¹ Public discussion of homosexuality in India has been inhibited by the fact that sexuality in any form is rarely discussed openly. In recent years, however, attitudes towards homosexuality have shifted slightly. In particular, there have been more depictions and discussions of homosexuality in the Indian news media²³⁴ and by Bollywood.⁵

Religion has played a significant role in shaping Indian customs and traditions. While homosexuality has not been explicitly mentioned in the religious texts central to Hinduism, the largest religion in India, some interpretations have been viewed as condemning homosexuality.⁶ Scholars differ in their views of the position of homosexuality within India's main religious traditions. There have been arguments that homosexuality was both prevalent and accepted in ancient Hindu society.⁷

Sexual acts "against the order of nature" remain illegal in India, though the government no longer seeks to prosecute adults engaging in private consensual homosexual acts.^{citation needed} In recent years, the campaign to decriminalize homosexuality has strengthened. Campaigners emphasize both human rights and health issues, particularly the need to disseminate information about HIV/AIDS.^{citation needed}

Several organizations like the Naz Foundation (India), National AIDS Control Organisation,⁸ Law Commission of India⁹, Union Health Ministry,^{citation needed} National Human Rights Commission ¹⁰ and The Planning Commission of India¹¹ have either implicitly, or expressly come out in support of decriminalizing homosexuality in India, and pushed for tolerance and social equality for lesbian, gay, bisexual, and transgendered people.

History and religion

A monk caresses a layman, from the Temple of Visvanatha, Khajuraho, Central India, 10th century CE.

The Manusmriti, which lists the oldest codes of conduct that were proposed to be followed by a Hindu, does include mention of homosexual practices, but only as something to be regulated. Though homosexuality was considered a part of sexual practices, it was not always well accepted. There were punishments prescribed for homosexual behaviour. For instance, the verse referring to sexual relations between an older woman and a virgin (woman) reads"...a woman who pollutes a damsel (virgin) shall instantly have (her head) shaved or two fingers cut off, and be made to ride (through the town) on a donkey",¹² suggesting a severe punishment. However, the verse referring to sexual relations between two virgins suggests a relatively milder punishment – "...a damsel who pollutes (another) damsel must be fined two hundred (panas), pay the double of her (nuptial) fee, and receive ten (lashes with a) rod".¹³ These provisions, quoted out of context, seem homophobic, but in fact they are concerned not with the gender of the partners but with the loss of virginity that rendered a young woman unworthy of marriage. For instance, the punishment for a forced sex act between a man and a woman states "...if any man through insolence forcibly contaminates a maiden, two of his fingers shall be instantly cut off, and he shall pay a fine of six hundred (panas)",¹⁴ which seems more severe in comparison to the punishment prescribed for the same act between two virgins. There is also no penalty prescribed for two non-virgins who have sex together.

The punishment for male offenders was less severe: "...an unnatural offence with a man, are declared to cause the loss of caste (Gatibhramsa)".¹⁵ "...man who commits an unnatural offence with a male...shall bathe, dressed in his clothes".¹⁶ The punishment seems extremely mild, as this is supposedly how most villagers traditionally took their baths.

Many heterosexual crimes were punished much more severely. For instance, acts of adultery and rape were punished with extreme torture, and even death.^{citation needed}

The skewed treatment may have been due to gender bias, considering that the Manusmriti is the same scripture that has stated that the status of woman in the society is the same (or even lower than) that of a man’s land, his cattle and other possessions.¹⁷ The Rig Veda, sculptures and vestiges depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and fertility.^{citation needed}

The unabridged modern translation of the classic Indian text Kama Sutra¹⁸ deals without ambiguity or hypocrisy with all aspects of sexual life—including marriage, adultery, prostitution, group sex, sadomasochism, male and female homosexuality, and transvestism. The text paints a fascinating portrait of an India whose openness to sexuality gave rise to a highly developed expression of the erotic.¹⁹

In "Same-Sex Love in India : Readings from Literature and History", authors Ruth Vanita and Saleem Kidwai analyze the history of homosexual behaviour in India, drawing from Hindu, Buddhist, Muslim, and modern fictional traditions. The preface to the book states that it 'traces the history of ideas in Indian writing traditions about love between women and love between men who are not biologically related.' The book has a collection of stories from ancient texts like Mahabharata, Panchatantra, Kamasutra, Shiva Purana, Krittivasa Ramayana, The Skanda Purana, Amir Khusro, and Baburnama; along with contemporary Indian literature that support the idea.^{citation needed}

LGBT culture in India

There is a vibrant gay nightlife in cities such as Mumbai, Hyderabad, and Bangalore, including discos and nightclubs. The reports of harassment of homosexual individuals and gatherings by the police has seen a gradual decline since 2004. The majority of Indians, according to various polls and surveys, still look down upon the LGBT community. However, many social and human rights activists have been working towards a queer positive society.²⁰²¹ Time Out (Delhi) has a dedicated column covering gay events in Delhi every week. Now with the emergence of several LGBT support groups across the nation, the much hidden queer community has increased access to health services and social events³

In 2005, Prince Manavendra Singh Gohil from a conservative principality in the Gujarat state publicly came out as gay. He was quickly anointed by the Indian and the world media as the first openly gay royal. He was disinherited as an immediate reaction by the royal family, but they eventually reconciled. He has even appeared at an Oprah Winfrey show.²²

In 2008, Zoltan Parag, a competitor at the Mr. Gay International contest said that he was "scared" to return to India fearing discrimination. He said, "Indian media has exposed me so much that now when I call my friends back home, their parents do not let them talk to me".²³

On June 29, 2008, four Indian cities (Delhi, Bangalore, Kolkata and Puducherry) celebrated gay pride parades. These were the first pride parades in Delhi, Bangalore and Puducherry. About 2000 people turned out in these nationwide parades. Mumbai held its pride march on August 16, 2008, with Bollywood actress Celina Jaitley also coming out to join in the festivities.^{24 25}

The Internet has created a prolific gay cyber culture for the South Asian community. Gay dating websites provide an alternative way for meeting people; online communities also offer a safe and convenient environment for meeting gays all around India.²⁶ The blogsphere has also not been immune to the modern emergence of a queer desi identity. Web logs highlight stories and issues specific to this marginalized community.^{citation needed}

Advocacy for legalizing homosexuality

The Naz Foundation (India), a New Delhi based NGO is at the forefront of the campaign to decriminalize homosexuality. It operates as a registered charitable trust and has been working on HIV/AIDS and sexual health related issues since 1994. Anjali Gopalan is the Founder of the organization, dedicated to the fight against the HIV/AIDS epidemic and advocacy to legalize homosexuality in India. Anjali began working on issues related to HIV/AIDS and marginalized communities in the United States. On returning to India in the early 90’s, she was frustrated at the lack of government and social response to the burgeoning HIV epidemic. She founded Naz India to focus on communities stigmatized by the society.

Through the years, Naz India has evolved and implemented a holistic approach to combat HIV, focusing on prevention as well as treatment. The organization also aims to sensitize the community to the prevalence of HIV, as well as highlight issues related to sexuality and sexual health. The organization has strong linkages with human rights groups and agencies such as Lawyers Collective, Human Right Law Network, Amnesty International, International Gay and Lesbian Human Rights Commission. Naz India has collaborated with these agencies to address cases of sexual rights abuse. It works with the police services in New Delhi, conducting weekly training workshops for police personnel. The training aims to build awareness of HIV / AIDS and tackles issues of discrimination, physical harassment, corruption and human rights.

Naz India’s efforts in sensitizing the government to different issues related to the epidemic include the amendment of Section 377 of the Indian Penal Code commonly known as the ‘Anti-sodomy Law’. This act criminalizes same sex sexual behavior irrespective of the age and consent of the people involved, posing one of the most significant challenges in effective HIV/AIDS interventions with sexual minorities.²⁷

In December 2002 Naz India filed a Public Interest Litigation (PIL) to challenge IPC section 377 in the Delhi High Court.²⁸

International pressure

The United Nations urged India to decriminalise homosexuality by saying it would help the fight against HIV/AIDS by allowing intervention programmes, much like the successful ones in China and Brazil. Jeffrey O'Malley, director of the United Nations Development Programme on HIV/AIDS, said countries protecting homosexuals from discrimination had better records of protecting them from getting infected by the diseases. [But] unfortunately in India, the rates of new infections among men who have sex with men continue to go up. Until we acknowledge these behaviours and work with people involved with these behaviours, we are not going to halt and reverse the HIV epidemic. Countries which protect men who have sex with men... have double the rate of coverage of HIV prevention services -- as much as 60 percent."²⁹ In talking to the The Hindu, he added that "The United Progressive Alliance government here is in a difficult position as far as amending Section 377 of the Constitution is concerned because of the coming elections as any changes could be misrepresented. We need to change the laws, sensitise the police and judiciary....But when discriminatory laws have been removed, marginalised people have got access to treatment and prevention facilities like condoms." Warning of the urgency he said, "India has achieved success in checking the spread of this dreaded disease through commercial sex workers but transmission through gay sex, and injectable-drug users is still an area of concern. Injectable-drug use can also be controlled through targeted interventions but is difficult to control or change people’s sexual habits."³⁰

Legal status

Homosexual relations are legally still a crime in India under an old British era statute dating from 1860 called Section 377 of the Indian Penal Code which criminalises 'carnal intercourse against the order of nature.' The vague nature of the legislation has resulted in it being used against a wide range sexual behaviour like oral sex (heterosexual and homosexual), sodomy, bestiality, etc.^{citation needed} The punishment ranges from ten years to lifelong imprisonment.

The relevant section reads:

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 ten years, and shall also be liable to fine.³¹

None of the major Indian political parties have endorsed gay rights concerns into their official party manifesto or platform. However, one of the Politburo members of the Communist Party of India (Marxist), Brinda Karat, did write an open letter in 2003 to the then Minister of Law and Justice, Arun Jaitley, demanding a repeal of section 377, IPC.³²

Enforcement of the law and alleged human rights violations

Convictions are extremely rare, and in the last twenty years there have been no convictions for homosexual relations in India. However, Human Rights Watch argue that the law has been used to harass HIV/AIDS prevention efforts, as well as sex workers, men who have sex with men, and other groups at risk of the disease.³³ The group documents arrests in Lucknow of 4 men in 2006 and another 4 in 2001. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities³⁴ and, in particular, transsexuals (hijras and kothis) in India.³⁵

Demands for law reform

In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners, a sexual health NGO called the Naz Foundation had no locus standi in the matter. Since nobody has been prosecuted in the recent past under this section it would perhaps seem unlikely that the section will be struck down as illegal by the Delhi High Court in the absence of a petitioner with standing. However, this does not rule out the possibility of some other High Court ruling on this section or even the Supreme Court in a "Public Interest Litigation" (PIL). Naz Foundation won its appeal in the Supreme Court against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider on its merits.³⁶ The Delhi High Court has been reconsidering the petition since October 2006. There has been a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against 377'. Voices has supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview.³⁷

In May 2008, the case came up for hearing in the Delhi High Court, but the Government was undecided on its position, with The Ministry of Home Affairs maintaining a contradictory position to that of The Ministry of Health on the issue of enforcement of Section 377 with respect to homosexuality.³⁸

The law continues to be on the books. It is used by some to threaten and blackmail homosexuals. It has been used in the past to harass people involved in condom distribution amongst homosexuals. It is also used by the police when registering complaints lodged by the parents of the parties involved. For instance, a lesbian couple that ran away together in Uttar Pradesh, India were arrested and handed back to their parents, in spite of both parties being of legal age by applying this section as the legal basis for their arrest.

There is increasing demand from activists to decriminalize homosexual relationships. An impressive collection of academic articles and personal stories celebrating diverse sexuality is Because I have a Voice: Queer Politics in India, edited by Arvind Narrain and Gautam Bhan.³⁹ The book documents current struggles at personal and political levels.

In September 2006, Nobel Laureate Amartya Sen and acclaimed writer Vikram Seth came together with scores of other prominent Indians in public life to publicly demand this change in the legal regime.⁴⁰ The open letter demands that 'In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down.'

On June 29th, 2008, Delhi held its first ever gay pride march, along with similar gatherings in Bangalore and Calcutta.⁴¹

On June 30, 2008, Indian labour minister Oscar Fernandes backed calls for decriminalization of consensual gay sex, and the Prime Minister Manmohan Singh called for greater tolerance towards homosexuals.⁴²

On July 4, 2008, gay activists fighting for decriminalization of consensual homosexuality at the Delhi High Court got a shot in the arm when the court opined that there is nothing unusual in holding a gay rally, something which is common outside India.⁴³

On July 23, 2008, Bombay High Court Judge Bilal Nazki said that India's unnatural sex law should be reviewed.⁴⁴

On November 7, 200, the seven-year-old petition to disallow the law that makes “unnatural” sex a criminal offence finished hearings. The Indian Health Ministry supported this petition, while the Indian Home Ministry opposed such a move.⁴⁵

Legal aspect

In 2008 Additional Solicitor General P P Malhotra said: "Homosexuality is a social vice and the state has the power to contain it. [Decrimilazing homosexuality] may create [a] breach of peace. If it is allowed then [the] evil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society." A view similarly shared by the Home Ministry. He argued before the bench of the Delhi High Court that it was crucial to hold such unnatural behaviour as a criminal offence and its deletion would lead to moral degradation. Citing an Orissa court judgement, he also added that such behaviour resulted from a perverse mind that needed to be controlled.⁴⁶

Anbumani Ramadoss

Indian health minister Anbumani Ramadoss advocated legalising homosexuality in India. On 9 August 2008, he campaigned for changing "Section 377" of the Indian penal code, which makes homosexuality and unnatural act and thus illegal. At the International AIDS Conference in Mexico city, he said, "Section 377 of IPC, which criminalizes men who have sex with men, must go."¹ His ministerial portfolio has put him at odds with the Indian Home ministry in seeking to scrap Section 377.⁴⁷

In late 2008, he changed his arguement saying he doesn not want the "scrapping" of Section 377 but a mere "modification" of the law treating homosexuality as a criminal offence punishable up to life imprisonment. He said he wants PM Manmohan Singh to resolve the matter, while he wanted to avoid discord with the home ministry, who said the altered law would then result in an increase in criminal incidences of sodomy or offences involving sexual abuse of children, particularly boys. In doing so he alleged that the law even penalises health workers for "abetting," while making this a cognizable and non-bailable offence. "The entire objective of getting homosexuality decriminalised is primarily to reach out to an estimated 4.5 million MSMs across the country as about 86 per cent HIV/AIDS-affected persons in India are ‘Men Having Sex with Men’ (MSM). My concern is purely on health grounds because Section 377 in its present form interferes with health ministry’s efforts to tackle HIV/AIDS epidemic, as even the doctors treating gay patients could be punished. Hence unless we take appropriate steps it would be difficult to contain the spread of the virus." He added the last comment saying the disease through blood transfusion and parentage declined while the other methods were hindering tackling the epidemic.⁴⁸

Recognition of same-sex couples

There is no legal recognition of same-sex couples under Indian law. During a recent visit to India by the Canadian Prime Minister Paul Martin, the Indian Prime Minister Manmohan Singh was asked by a journalist what he thought of the new law allowing gay marriage in Canada. His reply was that "there would not be much appreciation for a law like that in India," and he went on to talk about how they were culturally very different societies.

The supreme Sikh religious body, the Akal Takht, has issued an edict condemning gay marriage and has told Sikhs living in Canada not to support or allow gay marriages in gurudwaras. In 2005, two unnamed women in Hyderabad asked the Darul Qaza, an Islamic court, for a fatwa allowing them to marry, but permission was denied with a rebuke from the chief qazi. None of the principal Christian denominations in India allow same-sex marriage.

However, since 1987, when the national press carried the story of two policewomen who married each other by Hindu rites in central India,⁴⁹ the press has reported many same-sex marriages, all over the country, mostly between lower middle class young women in small towns and rural areas, who have no contact with any gay movement. Family reactions range from support to disapproval to violent persecution. While police generally harass such couples, Indian courts have uniformly upheld their right, as adults, to live with whomever they wish. In recent years, some of these couples have appeared on television as well. There have also been numerous joint suicides by same-sex couples, mostly female (male-female couples also resort to suicide or to elopement and religious marriage when their families oppose their unions). In "Same-Sex Love in India : Readings from Literature and History", author Ruth Vanita analyzes dozens of such marriages and suicides that have taken place over the last three decades, and explores their legal, religious, and historical aspects. She argues that many of the marriages can arguably be considered legally valid, as under the Hindu Marriage Act, 1955, any marriage between two Hindus performed according to the customs prevalent in the community of one of the two partners is legally valid. No license is required to marry, and most heterosexual Hindu marriages in India today are performed by religious rites alone, without a marriage license and are never registered with the state. State recognition is not sought by most couples because it confers few benefits. Most couples seek the validation of family and community, and several female couples in rural areas and small towns have received this validation.⁵⁰

There have also been a couple of high profile celebrity same-sex marriages, such as the civil union of designer Wendell Rodricks with his French partner, conducted under French law in Goa, India. LGBT rights organizations have demanded the right to same-sex marriage, and, inspired both by news from the West, have discussed the issue.⁵¹

Queer Media Collective

The Queer Media Collective (QMC) is a group of professional journalists who aim to recognize and reward balanced treatment of gay, lesbian and other queer issues in the Indian media and entertainment industry. This group held their first ever meeting in Mumbai in late 2007. The group now has members in Delhi and Bangalore.⁵²

The first event hosted by the group was the Queer Media Collective Awards 2008.⁵³

See also

• Ashok Row Kavi
• Homosexuality and Hinduism
• Human rights in India
• Non-westernized concepts of male sexuality
• Parvez Sharma
• Sridhar Rangayan

Notes

References

• Vanita, Ruth; Saleem Kidwai (2001). Same-Sex Love in India: Readings from Literature and History. New York: Palgrave Macmillan. ISBN 0-312-22169-X. (First edition)
• Daniélou, Alain (1994). The Complete Kama Sutra. Park Street Press. ISBN 0-89281-492-6. 
• Narrain, Arvind; Gautam Bhan (2006). Because I Have a Voice: Queer Politics in India. New Delhi: Yoda Press. ISBN 819022722X. 

Further reading

• Merchant, Hoshang (1999). Yaraana: Gay Writing from India. New Delhi: Penguin. ISBN 0140278397.  (First edition)
• Thadani, Giti (1996). Sakhiyani: Lesbian Desire in Ancient and Modern India. London: Cassell. ISBN 0304334510. 
• Vanita, Ruth (2005). Love's Rite: Same-Sex Marriage in India and the West. New York: Palgrave Macmillan. ISBN 1403970386. 
• Joseph, Sherry (2005). Social Work Practice and Men Who Have Sex With Men. Thousand Oaks: SAGE Publications. ISBN 0761933522. 
• Nanda, Serena (1998). Neither Man Nor Woman: The Hijras of India. USA: Wadsworth Publishing. ISBN 0534509037.  (Second edition)

External links

• An open letter to the Government of India, Members of the Judiciary, and All Citizens from Vikram Seth

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