LGBT history in India

LGBT in India has been documented for different times, in recent times due to the unbanning of homosexuality and promotion of LGBT rights has made caused large amount of researches and opinions regarding the LGBT in India.

Pre-colonial India

There are a numbers of ancient Indian texts which are relevant to modern LGBT causes.

The Arthasastra, an ancient Indian treatise on statecraft, mentions a wide variety of non-vaginal sexual practices which, whether performed with a man or a woman, were sought to be punished with the lowest grade of fine. While homosexual intercourse was not sanctioned, it was treated as a very minor offence, and several kinds of heterosexual intercourse were punished more severely.

Sex between non-virgin women incurred a very small fine, while homosexual intercourse between men was sought to be censured by a prescription of a bath with one's clothes on, and a penance of "eating the five products of the cow and keeping a one-night fast"- the penance being a replacement of the traditional concept of homosexual intercourse resulting in a loss of caste. The discrepancy in treatment may have been due to the text's non-equal views on males and females, 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.

The classic Indian text Kama Sutra deals without ambiguity or hypocrisy with all aspects of sexual life—including marriage, adultery, prostitution, group sex, sadomasochism, male and female homosexuality, and transvestism.

Colonial era

The British Raj banned homosexual relations under Section 377 of the Indian Penal Code, which entered into force in 1861. It was similarly instituted throughout most of the British Empire due to the Christian religious beliefs of the British colonial governments.

Modern India

In 1977 Shakuntala Devi published the first study of homosexuality in India. Whilst convictions under Section 377 were rare, with no convictions at all for homosexual intercourse in the twenty years to 2009, Human Rights Watch have said that the law was used to harass HIV/AIDS prevention activists, as well as sex workers, men who have sex with men, and other LGBT groups. The group documents arrests in Lucknow of four men in 2006 and another four in 2001. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities and, in particular, transsexuals (hijras and kothis) in India.

Homosexual intercourse was a criminal offence until 2009 under Section 377 of the Indian Penal Code, 1860. This made it an offence for a person to voluntarily have "carnal intercourse against the order of nature."

2009-2013

This law was struck down by the 2009 Delhi High Court decision Naz Foundation v. Govt. of NCT of Delhi, which found Section 377 and other legal prohibitions against same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.

Decisions of a High Court on the constitutionality of a law (i.e. judicial review)apply throughout India, and not just to the territory of the state over which the High Court in question has jurisdiction. However, even after the pronouncement of verdict, there have been (rare) incidents of harassment of homosexual groups.

On 16 February 2012, the Supreme Court, during a hearing of a bunch of appeals filed against decriminalisation of gay sex, observed that homosexuality should be seen in the context of changing society as many things which were earlier unacceptable have become acceptable with passage of time.

The two-judge bench, composed of Justices G S Singhvi and S J Mukhopadhaya, opined that homosexuality should be seen in the light of changing times where phenomena of live-in relationship, single parents and artificial fertilisation have become normal. They had also pointed out that many things, which were considered immoral 20 years ago, have become acceptable to society now. The bench said that gay sex was not an offence prior to 1860 and referred to paintings and sculptures of Khajuraho. Senior Advocate Amrendra Sharan, who opposed the Delhi High Court order of decriminalising gay sex on behalf of the Delhi Commission for Protection of Child Rights, had then submitted that social issues cannot be decided on the basis of sculptures. The apex court bench, however, observed that it is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse. Earlier, the Supreme Court bench had asked the anti-gay rights groups, challenging legalisation of gay sex to explain how such acts are against the order of nature as submitted by them.

The apex court was hearing petitions filed by anti-gay rights activists and also by political, social and religious organisations which have opposed the Delhi High Court verdict decriminalising homosexual behaviour.

However, on 23 February 2012, the Union Home Ministry of the UPA government replying to a Supreme Court observation, told the Supreme Court that it was opposed to the decriminalisation of gay sex. "This is highly immoral and against the social order," the Home Ministry told the apex court. It said that India's moral and social values were different from other countries, and therefore, the nation should not be guided by them. The Central Government reversed its stand on 28 February 2012, asserting that there was no error in decriminalising gay sex. This resulted in the SC pulling up the Centre for frequently changing its stand on the issue. Don't make a mockery of the system and don't waste the court's time, an apex court judge told the government.

Also in 2012, a guide titled 'Creating Inclusive Workplaces for LGBT Employees in India' was developed by IBM, Goldman Sachs, Google together with Community Business, a non-profit organization.

In December 2013, however, India's top court upheld the introduction of a law that criminalises gay sex, in a ruling that reverses a landmark 2009 Delhi High Court order which had decriminalised homosexual acts. The court said it was up to parliament to legislate on the issue.

Indians have traditionally interpreted Section 377, a 153-year-old colonial-era law, as condemning a same-sex relationship as an "unnatural offence", and also considering it punishable by a 10-year jail term. Political, social and religious groups petitioned the Supreme Court to have the law reinstated in the wake of the 2009 court ruling.

2013-present

The protests against the reinstitution of Section 377 took place across India, and resulted in political activism across political parties to declare their support for the law's repeal. By April 2014, the month of the upcoming election, at least three major political parties - the Aam Aadmi Party, the Congress and the Communist Party of India (Marxist) - had included support for decriminalization of homosexual relations in their election manifestos, while the BJP's leadership supported the law.