Homosexuality in India
Aspect of history and society in India
From Wikipedia, the free encyclopedia
Homosexuality in India has been documented throughout the history of the Indian subcontinent, and legal rights for homosexual individuals continue to be advanced in contemporary mainstream and regional politics. While homosexuality is legal and cohabitation is legally permitted with certain protections, same-sex marriage is not officially recognised at the national level.
Various ancient literary works and architectural depictions attest to the presence of homosexuality in early Indian societies.[1] Historically, there were no known strict legal restrictions against homosexuality on the subcontinent until the advent of Islamic rule and subsequent European colonialism. Scholars note that the severe criminalisation of homosexuality was introduced through Islamic codes during the Mughal Empire, culminating in the 17th-century Fatawa-e-Alamgiri, and was later institutionalised nationwide by the British Raj through the 19th-century Indian Penal Code (IPC).[1][2][3]
The modern criminalisation of homosexuality was established by Section 377 of the Indian Penal Code, imposing Victorian morality on Indian subjects in 1860.[4] Following decades of legal challenges and social activism, the Supreme Court of India unanimously struck down the portions of Section 377 that criminalised consensual homosexual acts between adults in the landmark Navtej Singh Johar v. Union of India ruling on 7 September 2018.[5] When the IPC was replaced by the Bharatiya Nyaya Sanhita in December 2023, language equivalent to Section 377 was omitted entirely.[6]
Despite legal advancements, homophobia remains prevalent in parts of Indian society.[7] Public discussion of homosexuality has historically been inhibited by cultural taboos surrounding sexuality. However, attitudes have shifted significantly in the 21st century. The Indian media, particularly cinema, has seen a rise in positive depictions of the LGBTQ community, and pride parades are regularly held in major cities across the country.[8] Nevertheless, economic and social discrimination against LGBTQ people persists, and many face pressure from familial and religious institutions.[9]
Demographics
Estimates of the LGBTQ population in India vary widely due to the historical criminalisation and social stigma that discouraged self-reporting. In 2012, the Government of India submitted a conservative figure to the Supreme Court of "at least 2.5 million" based on self-declaration. In contrast, advocacy groups and global demographic models have estimated the population could be approximately 10% of the total population, or over 135 million people.[10][11]
In 2021, multinational research firm Ipsos released a report based on a global survey that included a sample of nearly 50,000 individuals in India. The report indicated that 17% of the surveyed Indian population identified as non-heterosexual: 3% as gay or lesbian, 9% as bisexual, 1% as pansexual, 2% as asexual, and 2% as "other". Furthermore, 69% identified as heterosexual, with the remainder declining to answer.[12]
History
Ancient and classical period
There were no general legal restrictions on homosexuality or trans-sexuality for the general population of India prior to the early modern period. Several ancient texts, including the Arthashastra, mention a wide variety of sexual practices. While non-procreative sex was occasionally frowned upon in religious texts, it was treated as a minor offense compared to heterosexual adultery. Homosexual intercourse between men could generally be absolved by minor penances, such as bathing with one's clothes on.[13][1]
The ninth chapter of the Kama Sutra, composed by Vātsyāyana around the 4th century CE, openly discusses oral sexual acts (auparistaka), homosexuality, and the sexual lives of transgender people (tritiya prakriti or third nature), presenting them as a natural variation of human sexuality rather than a moral failing.[1][2][3] Similarly, Hindu mythology features various deities changing gender or engaging in same-sex unions, reflecting a fluid understanding of gender and sexuality in ancient Indian culture.
Islamic empires
During the medieval period, the establishment of Islamic empires in the Indian subcontinent brought new religious codes that explicitly condemned homosexual practices. The persecution of homosexuality peaked under the Mughal Empire. The Fatawa-e-Alamgiri, a compilation of Islamic law mandated by Emperor Aurangzeb, instituted severe punishments for homosexuality, which could include 50 lashes for a slave, 100 for a free non-Muslim, or death by stoning for a Muslim.[14] However, historical accounts also note that Sufi poetry and literature from the era, such as the works of Amir Khusro and Bulleh Shah, frequently featured homoerotic themes and same-sex references.[15]
Colonial era
European colonisation introduced Christian-European morality to the subcontinent, leading to the institutionalised criminalisation of homosexual acts. In 1860, the British Raj drafted the Indian Penal Code, which included Section 377. This law made sexual activities "against the order of nature" a criminal offense punishable by up to life imprisonment.[16] Prior to this, the Goa Inquisition in Portuguese India also prosecuted the capital crime of sodomy.[17]
Legal status
Decriminalisation of Section 377
The fight to decriminalise homosexuality in India was a decades-long legal and political struggle. In 2001, the Naz Foundation (India) Trust filed a Public Interest Litigation (PIL) in the Delhi High Court challenging the constitutionality of Section 377.[18] During the 2000s, support for repeal grew among intellectual circles, health ministries, and human rights organizations. In September 2006, prominent figures like Amartya Sen and Vikram Seth issued an open letter demanding the law's repeal, and the United Nations urged India to decriminalise homosexuality to aid the fight against HIV/AIDS.[19]
On 2 July 2009, the Delhi High Court struck down the portion of Section 377 that criminalised consensual adult homosexual acts, ruling it a violation of fundamental rights to equality and liberty.[20] However, on 11 December 2013, the Supreme Court of India overturned the High Court's decision, deferring the matter to the Parliament of India.[21] Legislative attempts to repeal the law, including private member's bills introduced by MP Shashi Tharoor in 2015 and 2016, were defeated in the Lok Sabha.[22]
The legal tide turned on 24 August 2017, when the Supreme Court ruled that the right to individual privacy is a fundamental right under the Constitution of India, explicitly noting that "sexual orientation is an essential attribute of privacy."[23] Finally, on 6 September 2018, in a landmark unanimous verdict, a five-judge constitutional bench of the Supreme Court formally struck down the colonial-era law, effectively decriminalising consensual homosexual sex. The court noted that history owed the LGBTQ community an apology for the systemic discrimination they had faced.[24]
Cohabitation and union recognition
While cohabitation between same-sex couples has never been explicitly illegal, India currently does not provide national legal recognition for same-sex marriage or civil unions. Since the 2010s, high courts in several states—including Gujarat, Kerala, Punjab, and Uttarakhand—have ruled that live-in relationships between same-sex couples are lawful and entitled to police protection.[25]
In August 2022, the Supreme Court ruled that unmarried partnerships, including queer relationships, qualify as "family units," allowing same-sex couples to attain some rights analogous to cohabitation.[26] In 2023, the Supreme Court heard a batch of petitions seeking the legalisation of same-sex marriage. On 17 October 2023, the court unanimously ruled that it could not mandate marriage equality, declaring that the power to amend the Special Marriage Act belonged strictly to Parliament. However, the ruling reinforced the right to form intimate relationships and ordered the central government to form a committee to address the practical difficulties and rights of same-sex couples.[27]
Society and culture
Political and religious views
Political consensus regarding homosexuality in India spans a broad spectrum. While factions within the ruling Bharatiya Janata Party (BJP) and the Rashtriya Swayamsevak Sangh (RSS) have supported decriminalisation, they remain largely opposed to same-sex marriage, citing traditional family values.[28] Members of opposition parties, including the Indian National Congress and the Trinamool Congress, have been vocal advocates for LGBT rights, with the Congress manifesto pledging to legalise civil unions in future legislation.[29]
Religious attitudes are similarly varied. Following the 2013 Supreme Court ruling that temporarily recriminalised homosexuality, leaders from prominent Hindu, Islamic, and Christian organisations notably aligned to support the ban, citing scriptural morality.[30] However, progressive religious figures and bodies, including the Hindu Council UK and spiritual leader Ravi Shankar, have openly condemned homophobia, stating that it contradicts inherent religious teachings.[31]
Health and conversion therapy
In February 2014, the Indian Psychiatric Society (IPS) issued a definitive statement declaring that homosexuality is not a mental illness or disease, aligning with global medical standards.[32] Despite this, harmful conversion therapy practices—ranging from pseudoscientific psychological counseling to electroconvulsive therapy—continue to be offered in parts of the country.[33]
In June 2021, in the case of S. Sushma v. Commissioner of Police, Madras High Court Justice N. Anand Venkatesh formally banned medical attempts to "cure" sexual orientation in Tamil Nadu. The landmark order mandated systemic changes to state police handling of LGBTQ individuals and suggested overhauling educational curricula to sensitize society to sexual diversity.[34]
Pride parades and activism
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India's first gay pride walk, the Kolkata Rainbow Pride Festival, was held in 1999 and became the first of its kind in South Asia.[35] In 2008, coordinated pride parades were simultaneously held in Delhi, Bangalore, Kolkata, and Pondicherry, signalling a rapid expansion of the public LGBTQ rights movement.
Today, pride marches are held annually in over two dozen Indian cities, including Mumbai, Chennai, Chandigarh, Jaipur, and Lucknow. Regional activists, such as Akkai Padmashali and Gopi Shankar Madurai, have brought visibility to working-class and caste-marginalised LGBTQ individuals, expanding the movement beyond urban, upper-class spheres. In 2012, Madurai hosted Asia's first specific genderqueer pride parade.[36]
Media and representation
Historically, the Indian media either ignored homosexuality or presented it as a comedic caricature. The landscape began shifting in the late 1990s and 2000s. Deepa Mehta's 1996 film Fire was one of the first mainstream Indian films to explicitly show a homosexual relationship, sparking widespread protests but also prompting the founding of several Indian LGBTQ support groups.
In recent years, Bollywood and regional cinema have produced critically acclaimed films focusing on the realities of homosexual life in India, such as Aligarh (2015), Kapoor & Sons (2016), Shubh Mangal Zyada Saavdhan (2020), and Badhaai Do (2022). Independent LGBTQ journalism has also grown; Bombay Dost, India's first registered gay magazine, was launched in 1990, and platforms like Pink Pages and Gaylaxy continue to provide national coverage for the community.[37]
