This article has been written by Diya Banerjee, from Symbiosis Law School, NOIDA. This article discusses the entire journey of the LGBTQIA community in India before and after the decriminalization of Section 377 and the prevailing problems they face.

Introduction

We have read in history books how eunuchs were a part of the Emperor’s court to guard the Begums and have been a part of the society since then. They have been present in the history of the world and India alike and were guards of harems and prized companions of Kings and Emperors. Even in Tehmina Durrani’s autobiography My Feudal Lord eunuch or hijras were said to be an important part of the high-end social circles though they were more or less treated as entertainers of sorts. But unlike the legally declared third gender, we do not see much to any mention of homosexuals or ‘queer’ as they were pejoratively called since the 19th century. However, there have been stories which we find on the internet and sites that tell us about the existence of same-sex relationships existing even during the ancient Indian era. If so, why does modern society reject and refuse to accept a community which is said to be ‘recognised’ in the Vedic Period? Why has society cultivated so much hate and intolerance toward them? 

General global perspective and background

Do you know why the Pride month is June? It is because of the famous Stonewall riots which sparked the onset of the gay liberation movement and the fight for equal LGBT rights, specifically in the United States. The uprising was caused due to blatant discrimination the gays and queer faced from the society and the government. The only place they were free to speak of their sexual orientation was in the bars and gay bars were frequently raided by the police because of their ‘questionable’ audience which consisted of drag queens, male prostitutes, etc. This growing tension led to the uprising after which organised groups were formed to work for the cause of creating a society where the community members would not have to feel fear of arrest because of their open attitude towards their sexual orientation and sexual preferences. However, we still hear cases of violence and hate on a person just because of how they dress, talk, walk and live. Statements like ‘He is so gay’ or ‘Is she a lesbian?’ just because of the manner in which a person presents himself/herself have become derogatory and insulting. The kind of tone the society takes when addressing the issues of the LGBT community is condescending and satirical. The privileged class has somehow been exempted from such resentment but the commons have not been spared even after worldwide improvements in the legal sphere. 

History of LGBT+ Community in India

Have you ever taken a look at the Indian temples, historical Hindu structures and the carvings on the outer walls? If not, do look it up. You will see that the outer walls have carvings of women dancing, worshipping the Gods and elaborate rituals, these are obvious. But look closer and you will see some erotic carvings of men and women indulging in erotic sexual activities with the same sex which ranged from women erotically embracing each other to men having sexual intercourse with each other. Now, this raises a question which historians have either refused to answer or are still looking for justifications of these structural carvings. Does this mean that gay men and women were accepted as a part of the society or are these structures a result of perverse thinking? I do not have an answer to this question but the possibility that these structures indeed depict the society of the ancient times is significant to the pride movement in contemporary times. 

Coming back to the topic, the history behind the movement started after the colonial rule in India criminalised same-sex relationships and intercourse on the grounds of being unnatural because of the Bible’s stance on ‘sex is sin’ because sexual intercourse between a man and a woman was essentially meant for procreation. Homosexual intercourse can of course not lead to procreation and also, casual sex between a man and a woman was also unnatural and thus, both were criminalised. 

However, there have been instances in India’s history where stance against homosexual behaviour has been recorded to be neutral to minor punishment. In the Rig Veda, there is a phrase “Vikriti Evam Prakriti” which literally translates into ‘even what seems to be unnatural is natural’, giving interpretations that homosexual behaviour/relationships were believed to be a part of the ancient society and so recognised. The Kamasutra has an entire chapter dedicated to homosexual relations and Kautilya’s Arthasashtra has a mention that such behaviour was punished with the lowest degree of fine while illicit heterosexual intercourse had more severity in punishment. Such fine was a replacement to the belief that indulging in such ‘unholy’ relationships would cost one his caste and status.

Homosexuality during the periods of Delhi Sultanate and the Mughal Empire was quite common although, in theory, it was not approved. In Baburnama, it is recorded that Babur had a ‘crush’ on a young boy. There was no strict punishment for homosexual relations between men, but no records on queer women have been successfully disclosed. The only condition for the men was that the pious duties as a husband, son and brother had to be followed. However, Al-Biruni had noted that Hindus greatly found these unnatural liaisons revolting. 

In contemporary times, there were many instances and events which sparked the fight against Section 377-

• The movement started to get organised from 1981 when the Trans Community was the first to come together and by 2004, LGBT+ activism was in full swing.
• In 1987, two policewomen from Madhya Pradesh, Urmila and Leela got married but were later discharged from duty.
• In 1990, journalist Ashok Row Kavi founded India’s first gay magazine, BombayDost, which is still in circulation. 
• In 1991, AIDS Bhedbhav Virodhi Andolan, a group fighting the discrimination against HIV/AIDS positive persons, published the first citizen’s report on the status of at-risk homosexual men and exposed silly myths on homosexuality.
• In 1997, two separate helplines and support networks for the Community members in distress were set up- Sangini and Humraz.
• India’s first Pride movement was held in Calcutta in 1999 and was called the Calcutta Rainbow Pride. The motto was “We’re here, we’re queer and we’re proud of it!” It has stuck since then.

These accounts provide quite a heavy description that there were people who belonged to the present day LGBTQ+ community.  

Impact of Section 377 and its decriminalization

India will celebrate its 74th Independence Day on 15th August 2020 but it was only after 72 years of independence that India legally decriminalised Section 377, the law which had, till very recently, criminalised same-sex sexual and romantic relationships. Yes, one man could get imprisoned for being romantically involved with another man and the same for women. Transgenders faced bouts of violence and disgust from those around them, not like they do not feel that anymore. It is just the decriminalization can no longer allow a ‘straight’ man or woman to drag a gay/lesbian/transgender to get imprisoned for ‘going against nature’.

In all honesty, life before and after decriminalization of the Section has not become much different. Some minor changes were noticed but nothing which has somehow miraculously improved the situation surrounding the LGBT Community.

Section 377 of the Indian Penal Code was more than a hundred years old with the wisdom of someone living in the dark ages and yet the modern Indian society continued to follow it through and through. It was in the landmark case of Naz Foundation vs. Government of NCT of Delhi in the year 2009 where the Delhi High Court had held that criminalising consensual homosexual relations and behaviour violated the fundamental right to equality as is given in Article 14 of the Indian Constitution. 

In 2013, the two-judge Supreme Court bench comprising Justice Singhvi and Justice Mukhopadhyay while hearing the appeals against the 2009 judgement in the case of Suresh Kumar Koushal vs. Naz Foundation said that homosexuality is acceptable because of the changing times, what was unacceptable a few decades ago is now acceptable and also, the bench cited that the erotic carvings on ancient temples and structures proved that homosexuality was recognised and accepted prior to the 1860 British rule of decriminalising homosexuality, solely based on their Christian beliefs. 

The years between 2012 to 2018 were particularly harder for the community because the judgement and support movements were gaining political and religious attention which were actually negative to the entire motto of the movement. There were harassment cases which came to be known, speculated to be State-sponsored. A lot of criticism from religious groups which termed homosexuality as a ‘mental illness’ that needed to be cured. 

Finally, in 2018 the landmark judgement of Navtej Singh Johar vs. The Union of India decriminalised homosexuality with one of the judges saying it was for a better future. 

The current Indian scenario

It is kind of ironic that India has been able to make a separate mark for itself when it comes to advancement in education, science, technology, etc. but if it is about hate crimes against the Pride Community and movement, even then India is high on the list. The hate crimes that I am talking about is not like the mass shooting which occurred in the United States (still considered the most hateful crime against the Community) but the daily ordeals of having to go through public humiliation and violence at the hands of their family members. From a conversation I had overheard, the elderly and educated people of our society believe that just like equality in the literal sense can never truly be achieved, in the same manner, the members of the community will never be equal to the heterosexual and ‘normal’ people. And, even if they have the right to equality in every sense, it cannot be done because some government decisions are taken for the comfort of the larger section of the society and here, the larger section includes the religious, orthodox and anti-gay groups. 

Decriminalization has had no real effect on the social sphere of our lives. I personally have heard a lot of ‘broadminded’ and educated teenagers calling a guy gay just because he wears clothes which have a ‘feminine’ vibe to them. If a woman is being too friendly with another woman, the next moment a gossip would arise questioning the former woman’s sexuality and preferences. 

It is important for society to accept LGBT rights so that-

• Lives of many can be saved because a significant number of deaths by suicide include the deaths of men or women who have been compelled to hide their sexual orientation leading to chronic depression and suicidal tendencies or thoughts.
• Every person has the right to love the person they love and be loved in the same capacity. By not recognising their right to have equal treatment, we are denying them some of their most basic fundamental rights.
• Social acceptance of LGBT+ rights and lives will also bring us closer to breaking the shackles of gender stereotypes and predetermined gender structures, making it possible for the society to open up new opportunities even for those who were previously neglected and outcasts. 
• Recognising the LGBT community will protect the members from economic seclusion and employing them will also boost the overall GDP of the country, helping them bring many others out of poverty and providing education through social drives and programs. 

Conclusion

Indian society has still failed to really create an atmosphere where the LGBT+ Community can openly talk and live through their same-sex relationships. The hypocrisy is out in the open, people talk about how gays/lesbians/transgenders should be given a right to live their life as they want but the moment they realize someone in their own family comes out as a homosexual or transgender, all hell breaks loose. Till the time the negative mentality and the stigma attached to those who are in and support the community is not broken, no significant change can be brought irrespective of the number of the landmark judgements being delivered. Justice is of no use if the people who are themselves responsible for its delivery hold prejudice against the needy. A major hurdle of the ‘illegality’ of same-sex relationships has been overcome but the next step should now be taken up the people who support the cause to raise awareness on the need to accept the Community so that the end goal of the Supreme Court’s verdict can be achieved.

References

1. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3354843/
2. https://www.youthkiawaaz.com/2017/07/lgbtq-movement-in-india-91-facts/
3. https://www.researchgate.net/publication/293147796_Section_377_Indian_penal_code_and_its_present_scenario

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