From Shadows to Spotlight: The Journey of LGBTQ+ Visibility in India
The abolition of Section 377 in India represents a watershed moment in the
ongoing struggle for LGBTQ+ rights, catalysing a profound shift in the social
and legal landscape. This research paper explores the implications of this legal
reform on the liberation of LGBTQ+ voices, focusing on how the repeal has
facilitated a more open and authentic discourse around LGBTQ+ identities. This
research paper explores the historical evolution of Section 377, its impact on
LGBTQ+ communities in India, and the implications of its decriminalization.
This research paper throws light on the evidence and references to homosexuality from ancient times proving its existence from times unknown. By examining legal, social, and cultural perspectives, it further investigates the ongoing challenges and areas of resistance that persist despite legal progress, emphasizing the need for continued advocacy and support.
By analysing the means to make an inclusive environment for the LGBTQ+ individuals by way of media representation, personal narratives, and public attitudes, the study highlights the ways in which the decriminalization of same-sex relationships has empowered individuals to express their identities more freely and challenge entrenched societal norms. This paper aims to provide a comprehensive understanding of how the removal of Section 377 has reshaped the narrative of LGBTQ+ experiences in India, contributing to a broader dialogue on human rights and social justice.
Introduction
"A person's sexual orientation is intrinsic to their being. A classification which discriminates between persons based on their innate nature would be violative of their fundamental rights." [1]-Justice Indu Malhotra
The intersection of law, human rights, and LGBTQ+ identities has been a prominent issue in global social and legal debates. In India, Section 377 of the Indian Penal Code stands at the heart of this discourse. Instituted in 1861, this colonial-era statute criminalized "carnal intercourse against the order of nature," becoming a powerful symbol of legal and social repression for LGBTQ+ individuals. The ramifications of Section 377 have been profound, influencing personal freedoms and human dignity and triggering extensive legal struggles, social activism, and legislative reforms over time.
Section 377 has faced criticism for its vague language and its potential to criminalize consensual same-sex relationships, which has perpetuated societal prejudices and legal discrimination against LGBTQ+ people. The effects of the law extend beyond legal restrictions, impacting social acceptance, mental health, and the overall well-being of LGBTQ+ individuals.
In recent years, the fight for LGBTQ+ rights in India has reached a critical juncture. Key rulings, notably the 2018 Supreme Court decision in Navtej Singh Johar v. Union of India[2], have questioned the constitutionality of Section 377, resulting in its decriminalization. This ruling marks a major triumph for LGBTQ+ activists and supporters and mirrors a broader global movement towards the acknowledgment and safeguarding of LGBTQ+ rights. Through this analysis, we hope to contribute to the broader discourse on human rights, equality, and the role of legal systems in shaping societal attitudes towards LGBTQ+ individuals.
The struggle for LGBTQ rights in India has been a journey marked by significant challenges and notable progress. The LGBTQ community, encompassing lesbian, gay, bisexual, transgender, and queer individuals, has faced social stigma, discrimination, and legal hurdles throughout history. However, in recent years, there has been a growing recognition of the need for inclusivity, equality, and the protection of fundamental human rights for all individuals, regardless of their sexual orientation or gender identity.
History of Homosexuality in India - Speaking from Literary Evidence
The presence of Hijras and other homosexual individuals in India is not a modern revelation; archaeological findings reveal that such communities have existed since ancient times. There is significant evidence suggesting that homosexuality was widespread in ancient Indian society and that there was a degree of tolerance and support for those involved in homosexual activities. This evidence is derived from various sources, including:
Artworks
Erotic artwork, numerous etchings and stone carvings depicting homosexuality can be found in many temples throughout India, including the Khajuraho temple sculptures built in the 700s and the Sun temple in Konark built in the 1200s.
Literary works
Traditional Hindu literary sources, such as the Vedas, Mahabharata, Ramayana, and Puranas, frequently address themes of homoeroticism, gender transformation, and characters who are intersex or of a third gender. Historians Ruth Vanita and Saleem Kidwai have gathered excerpts from a range of Indian texts, including many Hindu scriptures, translated from 15 different Indian languages, in their work Same-Sex Love in India: Readings from Literature and History[3]. Their essays, which accompany these excerpts, explore and debate same-sex desire in ancient Hindu texts with varying perspectives, from critical to non-judgmental and even celebratory. Manusmriti, Arthasastra, and Kama Sutra, texts depicting ancient India, have referred to attraction between the same sexes and behavior[4].
Medical texts
Ancient Hindu and Buddhist medical texts document a third gender that is equal to other genders.[5]
In September 2018, the Supreme Court of India decriminalised homosexuality. After the judgment, there was an uproar insisting that India is adopting western ideologies and concepts of liberalism.
One has to know India's history to understand why the British made gay sex illegal. "The British brought their own rules to India, including the Section 377 which banned homosexuality and made it a criminal act. This law was enforced by them but it didn't conform with India's attitude toward homosexuality. It was more to do with their Christian belief systems," says the noted historian Harbans Mukhia[6]. Other experts also believe that India had a more open attitude to homosexuality before the British Raj and there is ample evidence of it in medieval history and mythology.
Mythologist Devdutt Patnaik[7] has often explained the presence and acceptance of homosexuality in Hinduism." The term homosexuality and the laws prohibiting 'unnatural' sex were imposed across the world through imperial might. Though they exerted a powerful influence on subsequent attitudes, they were neither universal nor timeless. They were - it must be kept in mind - products of minds that were deeply influenced by the 'sex is sin' stance of the Christian Bible[8]," he writes in an article on his website.
Prof. Harbans Mukhia says books and scriptures from medieval times also suggest that homosexuality was not looked down upon. "There was some disproval for homosexuality but LGBT people were not ostracised. The society was tolerant towards them and nobody was hounded for being a homosexual."
"Alauddin Khalji's son, Mubarak, was known to be in a relationship with one of the noble men in his court," he adds. Babur, who founded the Mughal dynasty which ruled most of what is now India and Pakistan in the 16th and 17th Centuries, also wrote about his love for men. "He wrote, without any sense of embarrassment, that he was in love with a boy named Baburi. There was no disapproval about his writing during his time or even after that," Prof Mukhia adds[9].
Evidences from the Hindu Scriptures
The fluidity of gender, for humans and yakshas, is an acknowledged concept in ancient India. Queerness can be traced back to Indian history, from ancient epics and scriptures to medieval prose, poetry, art and architecture.
In Hinduism, numerous scriptural deities exhibit gender dualities. Here are several examples accentuating the presence of homosexuality and the acceptance of homoeroticism in India.
Puranas[10] - The earliest mention of a transgender figure in Hinduism is Mohini, the female avatar of Vishnu. Using her allure, Mohini intervened to end the conflict between the devas and asuras and to distribute the Amrita to the devas. Mohini reappears in the Vishnu Purana, where she cleverly intervenes to save Shiva from Bhasmasura, who had been granted a boon that would destroy anyone he touched on the head. Ayyappa, a deity with dual gender characteristics, is another example; he is worshipped as the son of Shiva and Mohini, the female incarnation of Vishnu.
Krittivasa Ramayana[11] enunciates the tale of King Bhagiratha, who was born of two women.
The Mahabharata[12] - There are mentions of figures such as Shikhandi and Ardhanarishwar, the latter being a composite form of Lord Shiva and Goddess Parvati. Arjuna, disguised as Birhannala, participated in a battle alongside prince Uttara against the Kauravas. The Mahabharata also has the story of Shikhandini or Shikandi[13] -, who was responsible for the death of Deveratt Bhishma. She was born as a daughter to King Drupad but raised as a man. Later in her life, she took the help of a yaksha to become a man to enter the battlefield of Kurukshetra and defeat Bhishma.
Valmiki's Ramayana[14] states that when Lord Hanuman returned from Lanka after visiting Goddess Sita, he saw rakshasa women kissing and embracing women.
Kamasutra[15] - Chapter nine of Kamasutra - by Vatsyayana discusses oral sexual acts, termed Auparashtika, homosexuality and sexual activities among transgender persons. Chapter Purushayita also mentions svairini, a self-willed and independent woman engaged in sexual activities with other women. The book also references men who are attracted to the same gender. The text refers to these individuals as Tritiya-Prakriti or the third nature. Furthermore, Kamasutra recognises eight types of marriages. For example, the term 'gandharva vivah' acknowledged gay marriage or lesbian marriage. It literally translates into a union or cohabitation without the approval of parents.
Vedas - The Rig Veda references the tale of Varun and Mitra, invariably cited as Mitra-Varun[16]. They are a same-sex couple believed to be the representatives of the two halves of the moon. Shatapatha Brahmana states:"On that new moon night, Mitra implants his seed in Varuna, and when the moon later wanes, that waning is produced from his seed. Varuna is similarly said to implant his seed in Mitra on the full-moon night for the purpose of securing its future waxing[17]."
Evidences from Muslim Literature
The founder of the Mughal Empire was not himself devoid of attraction towards the same sex. In his Memoir, Baburnama[18], Babur enunciates his attraction towards a boy named Baburi in Kabul. Babur mentioned him in his memoir and wrote the poem:
May none be as I, humbled and wretched and love-sick;
No beloved as thou art to me, cruel and careless.
The story of Sarmad Kashani[19] is also famous. He was an Armenian merchant who later became a Sufi Saint. While travelling to India for trade, he fell in love with a Hindu boy named Abhai Chand. He abandoned his business and started living in Thatta with Abhai Chand as his student. Sarmad Kashani was eventually arrested by Aurangzeb and beheaded.
Another Sufi Saint Shah Hussain[20] claims his love for a Hindu boy named Madho Lal in his works. Eventually, Shah Hussain and Madho Lal were buried together in Lahore. Their remains in several texts symbolise divine love that lasted beyond their existence.
Graphic Evidence
Besides literary evidence, Indian history has abundant visual traces of homosexuality in India. These records exist as art, paintings, sculptures throughout the country. One such chronicle is preserved in the temples of Khajuraho. The Khajuraho temple sculptures, built by the Chandela dynasty, showcase images where men expose their genitals to other men and women are erotically embracing each other. Thirteenth-century Sun temple in Konark in eastern Orissa, also called Surya Devalaya, exhibits similar imageries. The Sun temple is devoted to the Hindu Sun god, with the exterior covered in sculptures depicting erotic scenes from the Kamasutra. Temples of Puri and Tanjore also portray explicit images of queer couples. Rajrani temple in Bhubaneswar has a statue depicting two women engaging in oral sex.
A rich history of literature exists on homosexuality and gender fluidity.
Thus, despite popular belief, homosexuality does not go against our cultural values and tradition. Moreover, the above-stated instances hold proof of the presence and recognition of the LGBTQIA+ community in India before the British.
There's enough evidence from history and mythology to suggest that the criminalisation of homosexuality was a foreign concept and its recognition, a part of Indian culture.
Section 377 and the debate:
Section 377 is an anti-sodomy provision derived from the Indian Penal Code of 1860, which reads as follows:
377. Unnatural offences[21]:
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. Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Although Section 377 affected gay, lesbian, queer, and transgender individuals, several other colonial laws specifically targeted transgender and intersex people in India. Despite these legal provisions criminalizing transgender individuals, there was no widespread transgender rights movement in the country that actively challenged or opposed these laws.
The debate over Section 377 encompasses larger issues related to human rights, social justice, and the influence of law on societal norms. This debate intensified with the rise of LGBTQ+ activism and the growing visibility of LGBTQ+ issues in India. Activists and supporters contended that the law infringed upon fundamental rights to privacy, equality, and dignity. They argued that criminalizing consensual same-sex relationships was at odds with modern human rights standards and democratic values.
The effort to challenge and ultimately decriminalize Section 377 represents a crucial moment in the fight for LGBTQ+ rights in India. Enacted during the colonial era, this law criminalized "carnal intercourse against the order of nature" and became a symbol of systemic discrimination and legal oppression against LGBTQ+ individuals.
The movement to contest and overturn Section 377 showcases the determination of activists, the effectiveness of legal advocacy, and the broader pursuit of social justice. This struggle began in 1991 with the publication of a pivotal report by the AIDS Bhedbhav Virodhi Andolan titled Less than Gay: A Citizen's Report[22], which outlined the issues with Section 377 and called for its repeal.
Legal Battles and Activism Leading to Repeal
The origins of the activism against Section 377 can be traced to the late 20th century, when LGBTQ+ rights groups began to emerge in India. Early efforts combined legal challenges, grassroots activism, and international support. Notably, the Naz Foundation, founded in 1994, was instrumental in exposing the legal and social injustices caused by Section 377.
The legal struggle for decriminalization began in 1994 after a significant number of HIV/AIDS cases were reported among inmates at Delhi's Tihar Jail. The police refused to allow doctors to distribute condoms, arguing that it would endorse illegal same-sex activity. Consequently, ABVA (AIDS Bhedbhav Virodhi Andolan), an NGO, initiated social action litigation in the Delhi High Court to demand the repeal of Section 377, though they did not pursue the case effectively.
Throughout the 1990s and early 2000s, activists employed various strategies to raise awareness and garner support. These efforts included public protests, educational initiatives, and partnerships with human rights organizations. The increasing visibility of LGBTQ+ issues and growing international attention played a key role in advancing momentum for legal reform.
Key Milestones in the LGBTQ+ Rights Movement:
The changing stance of the Judiciary
Legislative perspectives on Section 377 have evolved significantly throughout the 21st century. Societal morality is dynamic and shifts over time, influencing legislative attitudes toward various laws, and Section 377 of the Indian Penal Code is a prime example of this change. Originally enacted during the colonial era, Section 377 was imposed as part of the Indian Penal Code. As India moved away from colonial rule, there was a gradual replacement of outdated laws with new ones that aligned with the values of an evolving society.
In India, attitudes towards homosexuality and the LGBTQ+ community began to change notably in metropolitan areas. Since the 1980s, India, along with other liberal democracies, has actively advocated for the basic human rights of queer individuals through various means such as publications, films, and pride parades. This increased visibility led to a rise in non-governmental organizations and activist groups that passionately campaigned for the rights of sexual minorities.
The legal challenge to Section 377 gained momentum with strategic litigation focused on questioning the law's constitutionality. In 1994, the Naz Foundation, in collaboration with the Lawyers' Collective, filed a petition with the Delhi High Court. They contested Section 377 on grounds that it violated several constitutional rights, including the right to equality (Article 14)[26], the right to freedom from discrimination based on sex (Article 15)[27], the right to fundamental liberties (Article 19)[28], and the right to life and privacy (Article 21)[29].
They sought to have Section 377 modified rather than repealed outright. This case, known as Naz Foundation v. Government of NCT of Delhi (2009)[30], became one of the earliest and most significant legal challenges to the statute. The Delhi High Court's landmark judgment in 2009 declared that the application of Section 377 to consensual same-sex acts was unconstitutional, as it violated the rights to privacy, equality, and non-discrimination guaranteed by the Indian Constitution.
This decision was a watershed moment, offering hope to LGBTQ+ individuals and activists across India. However, this victory was short-lived when the Supreme Court of India reversed the ruling in Suresh Kumar Koushal v. Naz Foundation (2013)[31]. The Supreme Court's reinstatement of Section 377 reignited stigma and criminalization, resulting in increased violence and sexual assault against LGBTQ+ individuals, who had no legal recourse. As Arvind Narrain[32] noted, "there's a beautiful description by [writer] Vikram Seth, who said: 'it's a bad day for law and love[33].''
The Supreme Court's decision led to a surge in activism. LGBTQ+ organizations and their allies intensified their efforts to challenge the law, organizing protests, filing petitions, and engaging in public discourse to expose the harm caused by Section 377. A key player in this renewed movement was The Queer Movement, an Indian LGBTQ+ organization that played a crucial role in rallying support and shaping public opinion. The movement gained further traction with endorsements from celebrities, academics, and human rights advocates, amplifying the demand for legal reform.
Despite the dismissal of the review petition against the Supreme Court's ruling, several curative petitions and new writ petitions were filed by queer individuals challenging the validity of Section 377. Between 2013 and 2018, India saw significant changes in constitutional law, including advancements in transgender rights, the recognition of self-determined gender identity, and the affirmation of the right to privacy as a fundamental right.
In 2014, NALSA Judgment (2014)[34]: The Supreme Court's NALSA judgment acknowledged the rights of transgender individuals, setting the stage for increased acceptance of gender and sexual minorities.
Another significant judgment was that of K Puttaswamy v. Union of India (2017)[35] which laid down that the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution.
The Puttaswamy ruling set the tone for the decriminalisation of same-sex relationships.
In 2018 Navtej Singh Johar Case (2018)[36]: The Supreme Court issued a historic ruling that unanimously struck down Section 377. This decision legalized consensual sexual relationships between adults of the same sex and affirmed fundamental rights, including:
The Beginning of the end of Prejudice
"Human sexuality could not be confined to a binary and the state had no business in intruding in these matters"-- Justice Chandrachud
In this landmark decision, the Supreme Court decriminalized consensual sexual relations between same-sex adults, marking a significant victory in the decades-long fight for freedom. This historic judgment not only invalidated Section 377, a contentious legal provision that had been in place for 158 years, but also brought the concepts of diversity and pluralism to the forefront of India's public discourse. By legitimizing same-sex relationships, the ruling represented a decisive step towards ending long-standing prejudice, which the Court argued had plagued India. At a time when the country is deeply divided along ethnic, religious, and caste lines, this decision served as a powerful endorsement of diversity.
The ruling was met with widespread approval, particularly among young people, who hailed it as a triumph for love. Many believe that the decriminalization has allowed the LGBTQ+ community to express their sexual preferences more openly and has contributed to increased self-acceptance and emotional security.
In his ruling, Chief Justice Dipak Misra highlighted, "Social exclusion, identity seclusion, and isolation from the social mainstream continue to be harsh realities for many individuals today. True freedom and a just society can only be realized when everyone is liberated from these constraints and is able to fully develop their personality[38]." This statement emphasizes the crucial role of individual freedom and social inclusion in creating a genuinely equitable and liberated society. "Section 377 is irrational, indefensible and manifestly arbitrary[39]."
"Majoritarian and popular views cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights[40]." said Justice Misra. The LGBTQ+ community possesses rights like all other sections of society and denial of self-expression to them was like death, Justice Misra said. "I am what I am so take me as I am,[41]" he said, quoting German thinker Johann Wolfgang Von Goethe[42].
Justice Indu Malhotra, the only woman on the bench, ushered in the personal rights of the LGBTQ+ community, saying, "LGBT people have the right to live unshackled from the shadow" and that "history owes an apology to the community" for the years of stigma imposed on them[43].
Justice Chandrachud explained how decriminalizing homosexuality was only the first step toward guaranteeing freedom to the LGBTQ community and that the Constitution envisaged much more. Human sexuality could not be confined to a binary and the state had no business in intruding in these matters, said Justice Chandrachud. Treating homosexuality as a disorder or disease had a severe impact on the mental health of homosexuals. Calling LGBTQ+ people "victims of Victorian morality" and setting the ground for change in the future, Justice Chandrachud said: "It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It is about people wanting to live with dignity[44]."
Repeal is Just the Beginning
The judgment signifies the conclusion of the initial phase in the lengthy struggle for social acceptance by the LGBTQ+ community. However, issues such as same-sex marriage, property inheritance, and civil rights still lack legal recognition. Gay rights activist Sharief Rangnekar noted:
"When the court refers to the need of heterogeneity and says that the majority view cannot override the rights of a minority, it could well be setting the base for the next round of battles for civil rights[45]." Despite the historic repeal of Section 377, the fight for LGBTQ+ rights in India continues. While decriminalizing same-sex relationships was a significant milestone, it did not provide complete legal protections or ensure societal acceptance.
Current efforts are concentrated on overcoming remaining legal challenges and advancing in areas like marriage equality and anti-discrimination laws. Looking ahead, the focus is on achieving more equal rights, including for marriage and legal and financial matters. The community is now advocating for further progressive reforms, such as legal recognition of same-sex marriage, inheritance rights, and employment equality.
In 2020, the Supreme Court granted some equal rights to live-in relationships and recognized homosexual live-in couples[46]. However, On October 17, a five-judge Constitution Bench of the Supreme Court, declined to legalise same-sex marriage, leaving it to Parliament to legislate on the subject. The Bench ruled that there is no fundamental right to marry, and the court cannot intervene[47].
It is ironic that many Indians, who are unaware of their rich and diverse mythological and literary heritage, still harbour negative views about homosexuality. Despite the Supreme Court's decision to decriminalize homosexuality four years ago, deep-seated prejudice against same-sex relationships persists in the collective mindset.
A significant portion of the Indian population continues to disapprove of homosexuality and lesbianism. An egregious manifestation of this prejudice is 'Conversion Therapy,' which attempts to 'cure' sexual orientations and gender identities that deviate from heterosexual norms. It required a recent directive from the Madras High Court for the National Medical Commission to issue a firm instruction to all state medical councils, mandating disciplinary action against medical professionals who engage in conversion therapy[48].
"Though challenges remain and there is a long way to go, there has been progress. It is a different landscape today than it was five or six years ago. It's not the end of the story, even within the courts of law, because the community keeps pushing the boundaries at every point," says Arvind Narrain[49].
Emerging jurisprudence on the 'Right to Love' in India
A key outcome of this landmark ruling is the affirmation of 'the Right to Love,' highlighted by Justice Chandrachud's observation that, "the right to love and to find a partner, to find fulfilment in a same-sex relationship is crucial in a society that values freedom within a constitutional framework based on rights[50]." The Court drew on its prior decision in Shafin Jahan v. Ashokan K.M.[51], which upheld the right to choose one's partner, regardless of marriage.
Following the Navtej judgment, there has been a rise in 'queer jurisprudence,' with several landmark rulings safeguarding the rights of queer couples against familial opposition and endorsing their 'right to love' and live together without state interference. These decisions represent a pivotal shift in Indian legal history, as the legitimacy of queer relationships has been officially recognized and affirmed by the constitutional court.
The first of many such judgments affirming this principle came in 2018 with Sreeja S. v. The Commissioner of Police, Thiruvananthapuram[52], where the Kerala High Court affirmed an adult woman's right to cohabit with her same-sex partner without fear of violence from her family or police interference. Citing Navtej, the court declared that "constitutional morality cannot be martyred at the altar of social morality[53]."
In 2020, the Uttarakhand High Court in Madhu Bala v. State of Uttarakhand[54] asserted that consensual same-sex relationships between adults are legal and emphasized that it is the "duty of the court to ensure that these constitutional liberties of individuals are not flouted[55]" by the State or the society.
Similarly, in Shampa Singh v. The State of West Bengal[56], the Calcutta High Court ruled that "consensual cohabitation between two adults of the same sex cannot, in our understanding, be illegal, far less a crime. We are of the view that such self-determination in the matter of sexual preference or consensual intercourse, even if not procreative, is inherent for the enjoyment of life and liberty of every individual and is protected under our scheme of constitutional morality and cannot be whittled down on the concept of morality or religion of others[57]."
The concept of the 'right to love,' highlighted by Justice Chandrachud in the ruling, carries profound implications in a society where cross-caste and cross-religious relationships are often considered as transgressive. Individuals who assert their love across caste, religion, or gender lines frequently face legal consequences. The legal protections offered by constitutional courts in India thus serve as a countermeasure to the criminalization of not only queer love but also relationships that challenge traditional caste or religious boundaries.
In this light, the 'right to love' is not merely a struggle for LGBTQ+ individuals but "a battle for us all," as the Court observed. The evolving jurisprudence and legal perspective on queer love has enabled us to confront social hierarchies, question punitive state actions, to find a language of love within the law[58].
LGBTQ+ Rights 2.0: Moving Forward with the challenges
"Homosexuality is not a mental disorder" -- Justice Nariman
Since 2018, attitudes have continued to evolve across various sectors, including families, media portrayals, films, OTT platforms, educational institutions, and workplaces. Parmesh Shahani, head of the Godrej DEI Lab and author of Queeristan[59], attributes much of this progress to awareness and support groups, as well as to younger generations who view inclusiveness as a fundamental value. For these individuals, inclusion and equality are non-negotiable[60].
Recent years have seen a positive paradigm shift in societal attitudes toward the LGBTQ+ community. However, the ultimate goal remains elusive. While progress has been made, with individual battles being won, the broader struggle for equality and justice continues. Achieving true equality, justice, and freedom for all will require winning this ongoing struggle. To advance toward this goal, several measures are outlined below to help address and overcome the remaining challenges and inculcate a positive and inclusive culture in the society.
Historically, LGBTQ+ individuals have often been depicted in media as simplistic stereotypes, objects of mockery, or reduced to their sexuality without any real depth. This portrayal has erased the rich diversity within the LGBTQ+ community, perpetuating harmful stereotypes and reinforcing discriminatory attitudes.
As LGBTQ+ representation grows, so does the variety of stories being shared. More TV shows, films, and other media are now including authentic LGBTQ+ characters and narratives that explore a wide range of experiences, from joy and love to pain and struggle. This shift not only mirrors the complexities of the world but also offers a more nuanced view of queer life, which can foster greater empathy and acceptance.
Understanding the historical context of an issue is crucial for forming rational arguments. Recognizing and acknowledging the history of homosexuality in India will provide the LGBTQIA+ community with a sense of identity and belonging. This awareness will also help counter the misconception within Indian society that views homosexuality and queerness as Western imports. India has a rich literary tradition that addresses homosexuality and gender fluidity. Thus, contrary to popular belief, homosexuality is not contrary to our cultural values and traditions.
The historical and mythological examples cited demonstrate that the presence and acceptance of the LGBTQIA+ community existed in India long before British colonial rule. Historical and mythological evidence suggests that the criminalization of homosexuality was an external influence, whereas the recognition of LGBTQIA+ identities was an integral part of Indian culture.
The journey towards LGBTQ+ rights and recognition has been marked by significant legal, social, and cultural milestones, reflecting a broader evolution in societal attitudes and jurisprudence. The decriminalization of homosexuality in India, culminating in the historic Navtej Singh Johar v. Union of India decision, represents a profound shift in the legal landscape. This landmark judgment not only struck down Section 377 of the Indian Penal Code but also underscored the fundamental right to love, regardless of gender or sexual orientation.
The legal battles leading up to this decision were shaped by decades of activism, advocacy, and societal change. From the early struggles to challenge the criminalization of same-sex relationships
to the more recent advancements in queer jurisprudence, the narrative has been one of resilience and progress. Landmark cases such as Sreeja S. v. The Commissioner of Police, Thiruvananthapuram, Madhu Bala v. State of Uttarakhand, and Shampa Singh v. The State of West Bengal have further cemented the principle that consensual same-sex relationships are not criminal and that the 'right to love' is integral to personal liberty and constitutional morality.
Despite these advancements, the fight for LGBTQ+ rights is far from over. The decriminalization of same-sex relationships marks a crucial first step, but comprehensive legal protections and societal acceptance remain works in progress. Issues such as same-sex marriage, inheritance rights, and anti-discrimination laws continue to require attention and advocacy.
The ongoing struggle highlights the importance of continued activism and legal reform. Promoting visibility, challenging stereotypes, and fostering inclusive policies are essential to creating a society where LGBTQ+ individuals can live freely and authentically. The emerging jurisprudence on queer love provides a foundation for further progress, offering a framework to resist social hierarchies, challenge punitive measures, and advocate for a more equitable legal system.
In conclusion, the advancement of LGBTQ+ rights in India represents both a triumph and a call to action. It underscores the necessity of ongoing efforts to ensure that the principles of equality, dignity, and personal freedom are upheld for all individuals, irrespective of their sexual orientation or gender identity. The legal and social gains achieved so far serve as a testament to the enduring quest for justice and the transformative power of love and acceptance in shaping a more inclusive society.
Bibliography:
This research paper throws light on the evidence and references to homosexuality from ancient times proving its existence from times unknown. By examining legal, social, and cultural perspectives, it further investigates the ongoing challenges and areas of resistance that persist despite legal progress, emphasizing the need for continued advocacy and support.
By analysing the means to make an inclusive environment for the LGBTQ+ individuals by way of media representation, personal narratives, and public attitudes, the study highlights the ways in which the decriminalization of same-sex relationships has empowered individuals to express their identities more freely and challenge entrenched societal norms. This paper aims to provide a comprehensive understanding of how the removal of Section 377 has reshaped the narrative of LGBTQ+ experiences in India, contributing to a broader dialogue on human rights and social justice.
Introduction
"A person's sexual orientation is intrinsic to their being. A classification which discriminates between persons based on their innate nature would be violative of their fundamental rights." [1]-Justice Indu Malhotra
The intersection of law, human rights, and LGBTQ+ identities has been a prominent issue in global social and legal debates. In India, Section 377 of the Indian Penal Code stands at the heart of this discourse. Instituted in 1861, this colonial-era statute criminalized "carnal intercourse against the order of nature," becoming a powerful symbol of legal and social repression for LGBTQ+ individuals. The ramifications of Section 377 have been profound, influencing personal freedoms and human dignity and triggering extensive legal struggles, social activism, and legislative reforms over time.
Section 377 has faced criticism for its vague language and its potential to criminalize consensual same-sex relationships, which has perpetuated societal prejudices and legal discrimination against LGBTQ+ people. The effects of the law extend beyond legal restrictions, impacting social acceptance, mental health, and the overall well-being of LGBTQ+ individuals.
In recent years, the fight for LGBTQ+ rights in India has reached a critical juncture. Key rulings, notably the 2018 Supreme Court decision in Navtej Singh Johar v. Union of India[2], have questioned the constitutionality of Section 377, resulting in its decriminalization. This ruling marks a major triumph for LGBTQ+ activists and supporters and mirrors a broader global movement towards the acknowledgment and safeguarding of LGBTQ+ rights. Through this analysis, we hope to contribute to the broader discourse on human rights, equality, and the role of legal systems in shaping societal attitudes towards LGBTQ+ individuals.
The struggle for LGBTQ rights in India has been a journey marked by significant challenges and notable progress. The LGBTQ community, encompassing lesbian, gay, bisexual, transgender, and queer individuals, has faced social stigma, discrimination, and legal hurdles throughout history. However, in recent years, there has been a growing recognition of the need for inclusivity, equality, and the protection of fundamental human rights for all individuals, regardless of their sexual orientation or gender identity.
History of Homosexuality in India - Speaking from Literary Evidence
The presence of Hijras and other homosexual individuals in India is not a modern revelation; archaeological findings reveal that such communities have existed since ancient times. There is significant evidence suggesting that homosexuality was widespread in ancient Indian society and that there was a degree of tolerance and support for those involved in homosexual activities. This evidence is derived from various sources, including:
Artworks
Erotic artwork, numerous etchings and stone carvings depicting homosexuality can be found in many temples throughout India, including the Khajuraho temple sculptures built in the 700s and the Sun temple in Konark built in the 1200s.
Literary works
Traditional Hindu literary sources, such as the Vedas, Mahabharata, Ramayana, and Puranas, frequently address themes of homoeroticism, gender transformation, and characters who are intersex or of a third gender. Historians Ruth Vanita and Saleem Kidwai have gathered excerpts from a range of Indian texts, including many Hindu scriptures, translated from 15 different Indian languages, in their work Same-Sex Love in India: Readings from Literature and History[3]. Their essays, which accompany these excerpts, explore and debate same-sex desire in ancient Hindu texts with varying perspectives, from critical to non-judgmental and even celebratory. Manusmriti, Arthasastra, and Kama Sutra, texts depicting ancient India, have referred to attraction between the same sexes and behavior[4].
Medical texts
Ancient Hindu and Buddhist medical texts document a third gender that is equal to other genders.[5]
In September 2018, the Supreme Court of India decriminalised homosexuality. After the judgment, there was an uproar insisting that India is adopting western ideologies and concepts of liberalism.
One has to know India's history to understand why the British made gay sex illegal. "The British brought their own rules to India, including the Section 377 which banned homosexuality and made it a criminal act. This law was enforced by them but it didn't conform with India's attitude toward homosexuality. It was more to do with their Christian belief systems," says the noted historian Harbans Mukhia[6]. Other experts also believe that India had a more open attitude to homosexuality before the British Raj and there is ample evidence of it in medieval history and mythology.
Mythologist Devdutt Patnaik[7] has often explained the presence and acceptance of homosexuality in Hinduism." The term homosexuality and the laws prohibiting 'unnatural' sex were imposed across the world through imperial might. Though they exerted a powerful influence on subsequent attitudes, they were neither universal nor timeless. They were - it must be kept in mind - products of minds that were deeply influenced by the 'sex is sin' stance of the Christian Bible[8]," he writes in an article on his website.
Prof. Harbans Mukhia says books and scriptures from medieval times also suggest that homosexuality was not looked down upon. "There was some disproval for homosexuality but LGBT people were not ostracised. The society was tolerant towards them and nobody was hounded for being a homosexual."
"Alauddin Khalji's son, Mubarak, was known to be in a relationship with one of the noble men in his court," he adds. Babur, who founded the Mughal dynasty which ruled most of what is now India and Pakistan in the 16th and 17th Centuries, also wrote about his love for men. "He wrote, without any sense of embarrassment, that he was in love with a boy named Baburi. There was no disapproval about his writing during his time or even after that," Prof Mukhia adds[9].
Evidences from the Hindu Scriptures
The fluidity of gender, for humans and yakshas, is an acknowledged concept in ancient India. Queerness can be traced back to Indian history, from ancient epics and scriptures to medieval prose, poetry, art and architecture.
In Hinduism, numerous scriptural deities exhibit gender dualities. Here are several examples accentuating the presence of homosexuality and the acceptance of homoeroticism in India.
Puranas[10] - The earliest mention of a transgender figure in Hinduism is Mohini, the female avatar of Vishnu. Using her allure, Mohini intervened to end the conflict between the devas and asuras and to distribute the Amrita to the devas. Mohini reappears in the Vishnu Purana, where she cleverly intervenes to save Shiva from Bhasmasura, who had been granted a boon that would destroy anyone he touched on the head. Ayyappa, a deity with dual gender characteristics, is another example; he is worshipped as the son of Shiva and Mohini, the female incarnation of Vishnu.
Krittivasa Ramayana[11] enunciates the tale of King Bhagiratha, who was born of two women.
The Mahabharata[12] - There are mentions of figures such as Shikhandi and Ardhanarishwar, the latter being a composite form of Lord Shiva and Goddess Parvati. Arjuna, disguised as Birhannala, participated in a battle alongside prince Uttara against the Kauravas. The Mahabharata also has the story of Shikhandini or Shikandi[13] -, who was responsible for the death of Deveratt Bhishma. She was born as a daughter to King Drupad but raised as a man. Later in her life, she took the help of a yaksha to become a man to enter the battlefield of Kurukshetra and defeat Bhishma.
Valmiki's Ramayana[14] states that when Lord Hanuman returned from Lanka after visiting Goddess Sita, he saw rakshasa women kissing and embracing women.
Kamasutra[15] - Chapter nine of Kamasutra - by Vatsyayana discusses oral sexual acts, termed Auparashtika, homosexuality and sexual activities among transgender persons. Chapter Purushayita also mentions svairini, a self-willed and independent woman engaged in sexual activities with other women. The book also references men who are attracted to the same gender. The text refers to these individuals as Tritiya-Prakriti or the third nature. Furthermore, Kamasutra recognises eight types of marriages. For example, the term 'gandharva vivah' acknowledged gay marriage or lesbian marriage. It literally translates into a union or cohabitation without the approval of parents.
Vedas - The Rig Veda references the tale of Varun and Mitra, invariably cited as Mitra-Varun[16]. They are a same-sex couple believed to be the representatives of the two halves of the moon. Shatapatha Brahmana states:"On that new moon night, Mitra implants his seed in Varuna, and when the moon later wanes, that waning is produced from his seed. Varuna is similarly said to implant his seed in Mitra on the full-moon night for the purpose of securing its future waxing[17]."
Evidences from Muslim Literature
The founder of the Mughal Empire was not himself devoid of attraction towards the same sex. In his Memoir, Baburnama[18], Babur enunciates his attraction towards a boy named Baburi in Kabul. Babur mentioned him in his memoir and wrote the poem:
May none be as I, humbled and wretched and love-sick;
No beloved as thou art to me, cruel and careless.
The story of Sarmad Kashani[19] is also famous. He was an Armenian merchant who later became a Sufi Saint. While travelling to India for trade, he fell in love with a Hindu boy named Abhai Chand. He abandoned his business and started living in Thatta with Abhai Chand as his student. Sarmad Kashani was eventually arrested by Aurangzeb and beheaded.
Another Sufi Saint Shah Hussain[20] claims his love for a Hindu boy named Madho Lal in his works. Eventually, Shah Hussain and Madho Lal were buried together in Lahore. Their remains in several texts symbolise divine love that lasted beyond their existence.
Graphic Evidence
Besides literary evidence, Indian history has abundant visual traces of homosexuality in India. These records exist as art, paintings, sculptures throughout the country. One such chronicle is preserved in the temples of Khajuraho. The Khajuraho temple sculptures, built by the Chandela dynasty, showcase images where men expose their genitals to other men and women are erotically embracing each other. Thirteenth-century Sun temple in Konark in eastern Orissa, also called Surya Devalaya, exhibits similar imageries. The Sun temple is devoted to the Hindu Sun god, with the exterior covered in sculptures depicting erotic scenes from the Kamasutra. Temples of Puri and Tanjore also portray explicit images of queer couples. Rajrani temple in Bhubaneswar has a statue depicting two women engaging in oral sex.
A rich history of literature exists on homosexuality and gender fluidity.
Thus, despite popular belief, homosexuality does not go against our cultural values and tradition. Moreover, the above-stated instances hold proof of the presence and recognition of the LGBTQIA+ community in India before the British.
There's enough evidence from history and mythology to suggest that the criminalisation of homosexuality was a foreign concept and its recognition, a part of Indian culture.
Section 377 and the debate:
Section 377 is an anti-sodomy provision derived from the Indian Penal Code of 1860, which reads as follows:
377. Unnatural offences[21]:
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. Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Although Section 377 affected gay, lesbian, queer, and transgender individuals, several other colonial laws specifically targeted transgender and intersex people in India. Despite these legal provisions criminalizing transgender individuals, there was no widespread transgender rights movement in the country that actively challenged or opposed these laws.
The debate over Section 377 encompasses larger issues related to human rights, social justice, and the influence of law on societal norms. This debate intensified with the rise of LGBTQ+ activism and the growing visibility of LGBTQ+ issues in India. Activists and supporters contended that the law infringed upon fundamental rights to privacy, equality, and dignity. They argued that criminalizing consensual same-sex relationships was at odds with modern human rights standards and democratic values.
The effort to challenge and ultimately decriminalize Section 377 represents a crucial moment in the fight for LGBTQ+ rights in India. Enacted during the colonial era, this law criminalized "carnal intercourse against the order of nature" and became a symbol of systemic discrimination and legal oppression against LGBTQ+ individuals.
The movement to contest and overturn Section 377 showcases the determination of activists, the effectiveness of legal advocacy, and the broader pursuit of social justice. This struggle began in 1991 with the publication of a pivotal report by the AIDS Bhedbhav Virodhi Andolan titled Less than Gay: A Citizen's Report[22], which outlined the issues with Section 377 and called for its repeal.
Legal Battles and Activism Leading to Repeal
The origins of the activism against Section 377 can be traced to the late 20th century, when LGBTQ+ rights groups began to emerge in India. Early efforts combined legal challenges, grassroots activism, and international support. Notably, the Naz Foundation, founded in 1994, was instrumental in exposing the legal and social injustices caused by Section 377.
The legal struggle for decriminalization began in 1994 after a significant number of HIV/AIDS cases were reported among inmates at Delhi's Tihar Jail. The police refused to allow doctors to distribute condoms, arguing that it would endorse illegal same-sex activity. Consequently, ABVA (AIDS Bhedbhav Virodhi Andolan), an NGO, initiated social action litigation in the Delhi High Court to demand the repeal of Section 377, though they did not pursue the case effectively.
Throughout the 1990s and early 2000s, activists employed various strategies to raise awareness and garner support. These efforts included public protests, educational initiatives, and partnerships with human rights organizations. The increasing visibility of LGBTQ+ issues and growing international attention played a key role in advancing momentum for legal reform.
Key Milestones in the LGBTQ+ Rights Movement:
- In 1861, after the arrival of Britishers, sexual activities "against the order of nature" including all homosexual activities were criminalized under section 377 of the Indian Penal Code. This was majorly influenced by the Catholic Church's belief that a sexual act not related to procreation was sinful.
- In 1977, Shakuntala Devi published the first study of homosexuality in India, called "The World of Homosexuals." It called for "full and complete acceptance and not tolerance and sympathy".
- Soon after, in 1981, the first All-India Hijra Conference was called in Agra, and 50,000 members from the community all over the country attended it.
- 1992 - AIDS Bhedbhav Virodhi Andolan (ABVA) organizes India's first gay rights protests in Delhi after the arrest of men suspected of homosexuality.
- In 1994, Hijras were legally granted voting rights as a third sex in the NALSA Judgment.
- Formation of advocacy groups like the Humsafar Trust, Nazaria, and others in the 1990s and 2000s, raising awareness and providing support to the LGBTQ+ community.
- The first Pride March in India, held in Kolkata in 1999, followed by annual Pride events in major cities, promoting visibility and solidarity.
The changing stance of the Judiciary
Legislative perspectives on Section 377 have evolved significantly throughout the 21st century. Societal morality is dynamic and shifts over time, influencing legislative attitudes toward various laws, and Section 377 of the Indian Penal Code is a prime example of this change. Originally enacted during the colonial era, Section 377 was imposed as part of the Indian Penal Code. As India moved away from colonial rule, there was a gradual replacement of outdated laws with new ones that aligned with the values of an evolving society.
In India, attitudes towards homosexuality and the LGBTQ+ community began to change notably in metropolitan areas. Since the 1980s, India, along with other liberal democracies, has actively advocated for the basic human rights of queer individuals through various means such as publications, films, and pride parades. This increased visibility led to a rise in non-governmental organizations and activist groups that passionately campaigned for the rights of sexual minorities.
The legal challenge to Section 377 gained momentum with strategic litigation focused on questioning the law's constitutionality. In 1994, the Naz Foundation, in collaboration with the Lawyers' Collective, filed a petition with the Delhi High Court. They contested Section 377 on grounds that it violated several constitutional rights, including the right to equality (Article 14)[26], the right to freedom from discrimination based on sex (Article 15)[27], the right to fundamental liberties (Article 19)[28], and the right to life and privacy (Article 21)[29].
They sought to have Section 377 modified rather than repealed outright. This case, known as Naz Foundation v. Government of NCT of Delhi (2009)[30], became one of the earliest and most significant legal challenges to the statute. The Delhi High Court's landmark judgment in 2009 declared that the application of Section 377 to consensual same-sex acts was unconstitutional, as it violated the rights to privacy, equality, and non-discrimination guaranteed by the Indian Constitution.
This decision was a watershed moment, offering hope to LGBTQ+ individuals and activists across India. However, this victory was short-lived when the Supreme Court of India reversed the ruling in Suresh Kumar Koushal v. Naz Foundation (2013)[31]. The Supreme Court's reinstatement of Section 377 reignited stigma and criminalization, resulting in increased violence and sexual assault against LGBTQ+ individuals, who had no legal recourse. As Arvind Narrain[32] noted, "there's a beautiful description by [writer] Vikram Seth, who said: 'it's a bad day for law and love[33].''
The Supreme Court's decision led to a surge in activism. LGBTQ+ organizations and their allies intensified their efforts to challenge the law, organizing protests, filing petitions, and engaging in public discourse to expose the harm caused by Section 377. A key player in this renewed movement was The Queer Movement, an Indian LGBTQ+ organization that played a crucial role in rallying support and shaping public opinion. The movement gained further traction with endorsements from celebrities, academics, and human rights advocates, amplifying the demand for legal reform.
Despite the dismissal of the review petition against the Supreme Court's ruling, several curative petitions and new writ petitions were filed by queer individuals challenging the validity of Section 377. Between 2013 and 2018, India saw significant changes in constitutional law, including advancements in transgender rights, the recognition of self-determined gender identity, and the affirmation of the right to privacy as a fundamental right.
In 2014, NALSA Judgment (2014)[34]: The Supreme Court's NALSA judgment acknowledged the rights of transgender individuals, setting the stage for increased acceptance of gender and sexual minorities.
Another significant judgment was that of K Puttaswamy v. Union of India (2017)[35] which laid down that the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution.
The Puttaswamy ruling set the tone for the decriminalisation of same-sex relationships.
In 2018 Navtej Singh Johar Case (2018)[36]: The Supreme Court issued a historic ruling that unanimously struck down Section 377. This decision legalized consensual sexual relationships between adults of the same sex and affirmed fundamental rights, including:
- Equality
- Personal dignity
- Privacy
The Beginning of the end of Prejudice
"Human sexuality could not be confined to a binary and the state had no business in intruding in these matters"-- Justice Chandrachud
In this landmark decision, the Supreme Court decriminalized consensual sexual relations between same-sex adults, marking a significant victory in the decades-long fight for freedom. This historic judgment not only invalidated Section 377, a contentious legal provision that had been in place for 158 years, but also brought the concepts of diversity and pluralism to the forefront of India's public discourse. By legitimizing same-sex relationships, the ruling represented a decisive step towards ending long-standing prejudice, which the Court argued had plagued India. At a time when the country is deeply divided along ethnic, religious, and caste lines, this decision served as a powerful endorsement of diversity.
The ruling was met with widespread approval, particularly among young people, who hailed it as a triumph for love. Many believe that the decriminalization has allowed the LGBTQ+ community to express their sexual preferences more openly and has contributed to increased self-acceptance and emotional security.
In his ruling, Chief Justice Dipak Misra highlighted, "Social exclusion, identity seclusion, and isolation from the social mainstream continue to be harsh realities for many individuals today. True freedom and a just society can only be realized when everyone is liberated from these constraints and is able to fully develop their personality[38]." This statement emphasizes the crucial role of individual freedom and social inclusion in creating a genuinely equitable and liberated society. "Section 377 is irrational, indefensible and manifestly arbitrary[39]."
"Majoritarian and popular views cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights[40]." said Justice Misra. The LGBTQ+ community possesses rights like all other sections of society and denial of self-expression to them was like death, Justice Misra said. "I am what I am so take me as I am,[41]" he said, quoting German thinker Johann Wolfgang Von Goethe[42].
Justice Indu Malhotra, the only woman on the bench, ushered in the personal rights of the LGBTQ+ community, saying, "LGBT people have the right to live unshackled from the shadow" and that "history owes an apology to the community" for the years of stigma imposed on them[43].
Justice Chandrachud explained how decriminalizing homosexuality was only the first step toward guaranteeing freedom to the LGBTQ community and that the Constitution envisaged much more. Human sexuality could not be confined to a binary and the state had no business in intruding in these matters, said Justice Chandrachud. Treating homosexuality as a disorder or disease had a severe impact on the mental health of homosexuals. Calling LGBTQ+ people "victims of Victorian morality" and setting the ground for change in the future, Justice Chandrachud said: "It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It is about people wanting to live with dignity[44]."
Repeal is Just the Beginning
The judgment signifies the conclusion of the initial phase in the lengthy struggle for social acceptance by the LGBTQ+ community. However, issues such as same-sex marriage, property inheritance, and civil rights still lack legal recognition. Gay rights activist Sharief Rangnekar noted:
"When the court refers to the need of heterogeneity and says that the majority view cannot override the rights of a minority, it could well be setting the base for the next round of battles for civil rights[45]." Despite the historic repeal of Section 377, the fight for LGBTQ+ rights in India continues. While decriminalizing same-sex relationships was a significant milestone, it did not provide complete legal protections or ensure societal acceptance.
Current efforts are concentrated on overcoming remaining legal challenges and advancing in areas like marriage equality and anti-discrimination laws. Looking ahead, the focus is on achieving more equal rights, including for marriage and legal and financial matters. The community is now advocating for further progressive reforms, such as legal recognition of same-sex marriage, inheritance rights, and employment equality.
In 2020, the Supreme Court granted some equal rights to live-in relationships and recognized homosexual live-in couples[46]. However, On October 17, a five-judge Constitution Bench of the Supreme Court, declined to legalise same-sex marriage, leaving it to Parliament to legislate on the subject. The Bench ruled that there is no fundamental right to marry, and the court cannot intervene[47].
It is ironic that many Indians, who are unaware of their rich and diverse mythological and literary heritage, still harbour negative views about homosexuality. Despite the Supreme Court's decision to decriminalize homosexuality four years ago, deep-seated prejudice against same-sex relationships persists in the collective mindset.
A significant portion of the Indian population continues to disapprove of homosexuality and lesbianism. An egregious manifestation of this prejudice is 'Conversion Therapy,' which attempts to 'cure' sexual orientations and gender identities that deviate from heterosexual norms. It required a recent directive from the Madras High Court for the National Medical Commission to issue a firm instruction to all state medical councils, mandating disciplinary action against medical professionals who engage in conversion therapy[48].
"Though challenges remain and there is a long way to go, there has been progress. It is a different landscape today than it was five or six years ago. It's not the end of the story, even within the courts of law, because the community keeps pushing the boundaries at every point," says Arvind Narrain[49].
Emerging jurisprudence on the 'Right to Love' in India
A key outcome of this landmark ruling is the affirmation of 'the Right to Love,' highlighted by Justice Chandrachud's observation that, "the right to love and to find a partner, to find fulfilment in a same-sex relationship is crucial in a society that values freedom within a constitutional framework based on rights[50]." The Court drew on its prior decision in Shafin Jahan v. Ashokan K.M.[51], which upheld the right to choose one's partner, regardless of marriage.
Following the Navtej judgment, there has been a rise in 'queer jurisprudence,' with several landmark rulings safeguarding the rights of queer couples against familial opposition and endorsing their 'right to love' and live together without state interference. These decisions represent a pivotal shift in Indian legal history, as the legitimacy of queer relationships has been officially recognized and affirmed by the constitutional court.
The first of many such judgments affirming this principle came in 2018 with Sreeja S. v. The Commissioner of Police, Thiruvananthapuram[52], where the Kerala High Court affirmed an adult woman's right to cohabit with her same-sex partner without fear of violence from her family or police interference. Citing Navtej, the court declared that "constitutional morality cannot be martyred at the altar of social morality[53]."
In 2020, the Uttarakhand High Court in Madhu Bala v. State of Uttarakhand[54] asserted that consensual same-sex relationships between adults are legal and emphasized that it is the "duty of the court to ensure that these constitutional liberties of individuals are not flouted[55]" by the State or the society.
Similarly, in Shampa Singh v. The State of West Bengal[56], the Calcutta High Court ruled that "consensual cohabitation between two adults of the same sex cannot, in our understanding, be illegal, far less a crime. We are of the view that such self-determination in the matter of sexual preference or consensual intercourse, even if not procreative, is inherent for the enjoyment of life and liberty of every individual and is protected under our scheme of constitutional morality and cannot be whittled down on the concept of morality or religion of others[57]."
The concept of the 'right to love,' highlighted by Justice Chandrachud in the ruling, carries profound implications in a society where cross-caste and cross-religious relationships are often considered as transgressive. Individuals who assert their love across caste, religion, or gender lines frequently face legal consequences. The legal protections offered by constitutional courts in India thus serve as a countermeasure to the criminalization of not only queer love but also relationships that challenge traditional caste or religious boundaries.
In this light, the 'right to love' is not merely a struggle for LGBTQ+ individuals but "a battle for us all," as the Court observed. The evolving jurisprudence and legal perspective on queer love has enabled us to confront social hierarchies, question punitive state actions, to find a language of love within the law[58].
LGBTQ+ Rights 2.0: Moving Forward with the challenges
"Homosexuality is not a mental disorder" -- Justice Nariman
Since 2018, attitudes have continued to evolve across various sectors, including families, media portrayals, films, OTT platforms, educational institutions, and workplaces. Parmesh Shahani, head of the Godrej DEI Lab and author of Queeristan[59], attributes much of this progress to awareness and support groups, as well as to younger generations who view inclusiveness as a fundamental value. For these individuals, inclusion and equality are non-negotiable[60].
Recent years have seen a positive paradigm shift in societal attitudes toward the LGBTQ+ community. However, the ultimate goal remains elusive. While progress has been made, with individual battles being won, the broader struggle for equality and justice continues. Achieving true equality, justice, and freedom for all will require winning this ongoing struggle. To advance toward this goal, several measures are outlined below to help address and overcome the remaining challenges and inculcate a positive and inclusive culture in the society.
- Legal Protection: Advocate for comprehensive anti-discrimination laws that explicitly protect LGBTQ+ individuals from discrimination in various spheres of life, including employment, education, housing, healthcare, and public services. Push for legislation that recognizes same-sex relationships and grants marriage equality.
- Access to Healthcare: Work towards improving access to LGBTQ+-affirming healthcare services, including gender-affirming care, mental health support, and HIV/AIDS prevention and treatment. Encourage healthcare providers to undergo LGBTQ+ cultural competency training.
- Supportive Mental Health Services: Establish and promote mental health services specifically tailored to address the unique challenges and needs of LGBTQ+ individuals, including counselling, therapy, and support groups.
- Empowerment and Capacity Building: Provide training, resources, and opportunities for leadership development and capacity building for LGBTQ+ individuals and organizations.
- Allies and Collaboration: Encourage allies, including individuals, organizations, and institutions, to actively support LGBTQ+ rights and work collaboratively with LGBTQ+ communities to create a more inclusive and equitable society.
- Media Representation: In recent years, there has been a significant push for LGBTQ+ representation across various media and public spheres, and this is crucial for several reasons. Accurate representation helps to challenge stereotypes, fight discrimination, and foster acceptance. It plays a vital role in shaping our perceptions and understanding of societal norms, values, and expectations, including those related to LGBTQ+ experiences.
Historically, LGBTQ+ individuals have often been depicted in media as simplistic stereotypes, objects of mockery, or reduced to their sexuality without any real depth. This portrayal has erased the rich diversity within the LGBTQ+ community, perpetuating harmful stereotypes and reinforcing discriminatory attitudes.
As LGBTQ+ representation grows, so does the variety of stories being shared. More TV shows, films, and other media are now including authentic LGBTQ+ characters and narratives that explore a wide range of experiences, from joy and love to pain and struggle. This shift not only mirrors the complexities of the world but also offers a more nuanced view of queer life, which can foster greater empathy and acceptance.
- Public Attitudes: Television and movies are likely to be powerful tools in reshaping family roles and societal attitudes, especially in rural areas where social media has yet to make a significant impact. These media forms can tell stories and present programs that educate and present LGBTQIA+ experiences in authentic and diverse ways. Films such as Badhaai Do, Shubh Mangal Zyada Saavdhan, and Aligarh have the potential to play a crucial role in changing negative societal attitudes towards the LGBTQIA+ community.
- Inclusive and Equal Treatment: LGBTQIA+ individuals are not anomalies or illnesses; their sexual orientation is a natural part of who they are. They deserve equal treatment, not preferential treatment. By accepting LGBTQIA+ individuals on an equal footing, they can be fully integrated into the collective growth of society. Gender neutrality involves treating all individuals equally, without favoring one gender over another, and ensuring that legislation, language, and social behaviors avoid traditional gender roles.
- Embracing Parental Support: It is crucial for parents to fully embrace their children, including their identities. By accepting and supporting their child's unique self, parents contribute to a society that values diversity and acknowledges the individuality of each person. This approach not only fosters a more inclusive environment but also helps nurture a culture that appreciates and respects differences.
- Promoting LGBTQIA+ Youth Awareness and Empowerment: Creating open and accessible platforms where LGBTQIA+ youth feel acknowledged and supported is essential. The rise of online platforms like Gaysi and Gaylaxy provides opportunities for LGBTQIA+ individuals to connect, share their experiences, and collaborate. Supporting initiatives like Pride Month and Pride Parades also contributes positively to this effort.
- Queering Public Spaces: Public spaces are often designed around specific notions of "appropriate" behaviour that can exclude those who do not conform to heteronormative standards. In India, making public spaces more inclusive and welcoming for LGBTQ+ individuals is crucial. This includes providing LGBTQ+ friendly public restrooms and creating welcoming environments in places such as parks, cinemas, and malls.
- Personal Narratives: In recent years, LGBTQ+ writers and authors have shared their journeys and experiences, serving as sources of inspiration for others who are struggling to find their voice. Campaigns like #CauseAChatter, Out and Proud, and AllOut have been instrumental in bringing LGBTQ+ voices into the spotlight and helping individuals come out of the shadows. Supporting and encouraging engagement in such campaigns would have a positive impact.
Understanding the historical context of an issue is crucial for forming rational arguments. Recognizing and acknowledging the history of homosexuality in India will provide the LGBTQIA+ community with a sense of identity and belonging. This awareness will also help counter the misconception within Indian society that views homosexuality and queerness as Western imports. India has a rich literary tradition that addresses homosexuality and gender fluidity. Thus, contrary to popular belief, homosexuality is not contrary to our cultural values and traditions.
The historical and mythological examples cited demonstrate that the presence and acceptance of the LGBTQIA+ community existed in India long before British colonial rule. Historical and mythological evidence suggests that the criminalization of homosexuality was an external influence, whereas the recognition of LGBTQIA+ identities was an integral part of Indian culture.
The journey towards LGBTQ+ rights and recognition has been marked by significant legal, social, and cultural milestones, reflecting a broader evolution in societal attitudes and jurisprudence. The decriminalization of homosexuality in India, culminating in the historic Navtej Singh Johar v. Union of India decision, represents a profound shift in the legal landscape. This landmark judgment not only struck down Section 377 of the Indian Penal Code but also underscored the fundamental right to love, regardless of gender or sexual orientation.
The legal battles leading up to this decision were shaped by decades of activism, advocacy, and societal change. From the early struggles to challenge the criminalization of same-sex relationships
to the more recent advancements in queer jurisprudence, the narrative has been one of resilience and progress. Landmark cases such as Sreeja S. v. The Commissioner of Police, Thiruvananthapuram, Madhu Bala v. State of Uttarakhand, and Shampa Singh v. The State of West Bengal have further cemented the principle that consensual same-sex relationships are not criminal and that the 'right to love' is integral to personal liberty and constitutional morality.
Despite these advancements, the fight for LGBTQ+ rights is far from over. The decriminalization of same-sex relationships marks a crucial first step, but comprehensive legal protections and societal acceptance remain works in progress. Issues such as same-sex marriage, inheritance rights, and anti-discrimination laws continue to require attention and advocacy.
The ongoing struggle highlights the importance of continued activism and legal reform. Promoting visibility, challenging stereotypes, and fostering inclusive policies are essential to creating a society where LGBTQ+ individuals can live freely and authentically. The emerging jurisprudence on queer love provides a foundation for further progress, offering a framework to resist social hierarchies, challenge punitive measures, and advocate for a more equitable legal system.
In conclusion, the advancement of LGBTQ+ rights in India represents both a triumph and a call to action. It underscores the necessity of ongoing efforts to ensure that the principles of equality, dignity, and personal freedom are upheld for all individuals, irrespective of their sexual orientation or gender identity. The legal and social gains achieved so far serve as a testament to the enduring quest for justice and the transformative power of love and acceptance in shaping a more inclusive society.
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- http://archive.diarna.org/site/detail/public/1931/
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- Destroying the Binary: Transgenderism in Buddhism RELIG ST 4H03 Carolynn Chennery 12.09.15
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- A quote from the judgement of Navtej Singh Johar & Ors. V. Union of India by Justice Indu Malhotra
- AIR 2018 Supreme Court 4321
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- Das K, Rao TSS. A Chronicle of Sexuality in the Indian Subcontinent. Journal of Psychosexual Health. 2019;1(1):20-25. doi:10.1177/2631831818822017. Last Accessed on 13.08.2024
- Destroying the Binary: Transgenderism in Buddhism RELIG ST 4H03 Carolynn Chennery 12.09.15. Last Accessed on 13.08.2024
- https://www.bbc.com/news/world-asia-india-46620242. Last accessed on 13.08.2024
- Mythologist, Author, Speaker, Illustrator
- https://devdutt.com/did-homosexuality-exist-in-ancient-india/. June 30, 2009 First published June 29, 2009 in Debonair, Annual
- Supra Note 6
- Matsya Purana - by Vinay 2009
- https://archive.org/details/in.ernet.dli.2015.302459/page/n7/mode/2up. Last Accessed on 13.08.2024
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- Shikhandi And Other Tales They Don't Tell You By Devdutt Pattanaik, 2014
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- https://www.thequint.com/opinion/homosexuality-rss-ancient-indian-culture-section-377. Last Accessed on 13.08.2024
- Shatapatha Brahmana, Bhagwata Purana, Rigved, vedic literature. (Shatapatha Brahmana 2.4.4.19)
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- National Legal Services Authority (NALSA) vs. Union of India is AIR 2014 SC 1863; (2014) 5 SCC 438
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- DLT 277, WP(C) No. 7455/2001, High Court of Delhi, July 2, 2009.
- AIR 2014 Supreme Court 563
- Lawyer, founder member of the Alternative Law Forum, and queer rights activist
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- National Legal Services Authority (NALSA) vs. Union of India. AIR 2014 SC 1863; (2014) 5 SCC 438
- AIR 2018 Sc (Supp) 1841
- Navtej Singh Johar vs Union Of India Ministry Of Law And Justice. AIR 2018 SC 4321
- ibid
- ibid
- ibid
- ibid
- ibid
- German polymath and writer
- Supra note 36
- ibid
- https://x.com/QuillFoundation/status/1038326950803034112
- Mandhani, Apoorva (19 June 2020). "Can't marry, but same sex couples have right to live together: Uttarakhand High Court". ThePrint. Accessed on 15.08.2024
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- https://indiankanoon.org/doc/168671544/
- https://www.scobserver.in/cases/shafin-jahan-union-of-india-hadiya-marriage-case-background/
- https://www.casemine.com/judgement/in/5d91997d714d587fe94d8ac5
- Supra note 50
- https://www.barandbench.com/news/litigation/same-sex-couples-have-got-a-right-to-live-together-even-if-not-competent-to-enter-into-wedlock-uttarakhand-hc
- https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=120202345000&Title=MADHU-BALA-Vs.-STATE-OF-UTTARAKHAND-AND-ORS.
- https://indiankanoon.org/doc/193037589/
- ibid
- https://ohrh.law.ox.ac.uk/emerging-jurisprudence-on-queer-love-in-india/
- https://www.parmesh.net/my-books/
- Supra note 49
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