Homosexuality in India

Homosexuality in India is considered a taboo subject, by both Indian civil society and the government of India. This can also be explained by the fact that mainstream sexuality is not discussed openly, although attitudes are changing rapidly due to increased positive representation in media and Bollywood in recent years. Homosexuality is also criminalised, due to provisions against "unnatural sex" and sodomy, under Section 377 of the Indian Penal Code (IPC), which is a remnant of Victorian era and was first introduced in the late 1800's during the British Raj. Some interpretations of Hinduism and Islam, the largest religions in India, condemn homosexuality. However recent scholarship has shown support and acceptance in the Hindu religion for homosexual practises. In recent years, both due to increasingly liberal attitudes and the need to control HIV/AIDS, several non-government organisations, National Aids Control Organization, the union ministry of women and child development, the Law Commission of India and the planning commission of India have all demanded legalisation or at least de-criminalisation of homosexuality and acceptance, tolerance and equality for lesbian, gay, bisexual, and transgendered people.

History

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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, do include 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, if a mature woman was found having sexual relations with a young woman (virgin), her "head should be shaved immediately or two of her fingers should be cut off, and she should be made to ride on a donkey." However, if two young women (virgins) have sex, each "must be fined two hundred (panas), pay the double of her (nuptial) fee, and receive ten (lashes with a) rod." 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 unmarriageable. The very next verse of the Manusmriti states that a man who manually penetrates a virgin should have two fingers cut off and pay her dowry. There is also no penalty prescribed for two non-virgin women who have sex together.

The punishment for male offenders was less severe: "Causing an injury to a priest, smelling wine or things that are not to be smelled, crookedness, and sexual union with a man are traditionally said to cause loss of caste" "A twice-born man who commits an unnatural offence with a male, or has intercourse with a female in a cart drawn by oxen, in water, or in the day-time, shall bathe, dressed in his clothes." Taking a bath while clothed is no penalty at all as this is how most villagers traditionally take baths in water bodies, and taking a bath after sex is common practice.

Many heterosexual crimes were punished much more severely, for instance, many types of adultery and rape were punished with torture and death.

possessions.

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Cover of Same-Sex Love in India : Readings from Literature and History

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. The Kama Sutra devotes an entire chapter to the "third nature", defined as men (both masculine and feminine appearing ) who desire other men. It describes oral sex between men in detail and mentions oral sex between women. It also notes that men who do not belong to the third nature may also embrace and have intercourse with (or in some translations "marry") a close male friend whom they trust. The recent book "Same-Sex Love in India : Readings from Literature and History" by Ruth Vanita and Saleem Kidwai analyses the history of homosexual behaviour in India, drawing from Hindu, Buddhist, Muslim, and modern fictional traditions. In the preface to the book, Ruth Vanita says that the book '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 an impressive collection of stories from the Mahabharata, Panchatantra, Kamasutra, Shiv Purana, Krittivasa Ramayana, Skanda Purana, Amir Khusro, Baburnama, and a variety of modern Indian material.

Legal status

Homosexual relations are technically 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.' Since this is deliberately vague in the past it has been used against oral sex (heterosexual and homosexual), sodomy, bestiality, etc. 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.

Enforcement of the law and 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. 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 minorities and, in particular, transsexuals (hijras and kothis) in India.

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. 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 group supporting gay rights, women's rights and child rights, called 'Voices Against 377'. Voices has supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview.

Recent government and police spokespersons have said that there is a movement to read down consensual homosexual intercourse from coming under the purview of this act. A police spokesperson has said that this section is now only applied in cases involving rape, child sexual abuse and bestiality. Further, if applied for homosexual intercourse in theory it cannot be applied against the passive, penetrated partner but only against the active, penetrating partner. However, the government has not made any official statements in this regard and continues to insist that homosexuality is illegal in India and against 'Indian culture'.

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 decriminalise 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. The book documents current struggles at the 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. The open letter demands that 'In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down.' You can add your name to the letter here.

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, 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 her recent book, Love's Rite: Same-Sex Marriage in India and the West (New York: Palgrave; New Delhi: Penguin, 2005), Ruth Vanita documents dozens of these 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.

There have also been a couple of high profile celebrity same-sex marriages, such as the civil union of designer Wendell Rodericks with his French partner, conducted under French law in Goa, India. Several LGBT rights organizations have demanded the right to same-sex marriage, and, recently, several Indian television talk shows, inspired both by news from the West, such as Elton John's civil partnership, and by reports about Indian female couples eloping and facing persecution by families and by police, have discussed the issue.

Gay life in the country

There is a vibrant, if largely underground gay nightlife in cities such as Mumbai, Delhi, Hyderabad, and Bangalore, including discos and nightclubs. The police used to harass homosexuals in the past but things have changed dramatically in the last six years. Time Out (Delhi) has a dedicated column covering gay events in Delhi every week.

The situation in smaller cities is more complicated. While there are no gay discos or parties, there are cruising areas in all major cities. These cruising places are still occasionally monitored by the police, especially in North India but the biggest threat seems to come from blackmailers and hustlers.

The Internet has created a prolific gay cyber culture of sorts, with chatrooms and Gay dating sites such as GayDia.com and in.guys4men.com providing an alternative way for meeting people. Websites like GayBombay offer a safe and convenient environment for meeting gays all around India, organizes various events - parties, treks, film festivals, cooking meetings etc.There is a lot of social tolerance of gays in cities while in rural areas relationships among men are accepted but kept under wraps.

Political parties

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.

See also

• Homosexuality and Hinduism
• Human rights in India
• Ashok Row Kavi
• Parvez Sharma
• Sridhar Rangayan

External links

• Gay Socializing Group of Mumbai
• Voices Against 377
• Gay and Lesbian Vaishnava Association
• Fear and loathing in gay India
• Demonising Homosexuals In India
• Gay Rights Group Challenges India's Sodomy Law
• A perspective from India: Homosexuality stands criminalized because of a mid 19th century colonial law
• Queering Bollywood
• Why should homosexuality be a crime?
• Trikone: Support group for LGBT South Asians in San Francisco Bay area