For decades following the Indian independence, the country’s psyche has been haunted by the spectre of Victorian morality. This statement would be deemed controversial even now in certain sophisticated circles of Western academia, for the Empire did a great job with covering all its crimes under the garb of civilising the unenlightened masses of Asia and Africa, a claim that has been relentlessly criticised by many, including the Nobel-winning author of the noted satirical dystopian novel “Lord of the Flies,” William Golding.
While the Indic faiths, the Vedic faith in particular, have been grappled by ailments of caste and in no way may be taken as perfect or progressive without due scrutiny, they still had a more tolerant outlook towards many things, two of which are homosexuality and transgenderness.
So how exactly in India, of all places, did the mere decriminalising of homosexual intercourse after decades of wait become a giant’s stride in legal and social spheres?
“You have to understand the past to understand the present.” – Carl Sagan.
The Rig-Veda, one of the four canonical Vedic texts contains the phrase Vikriti Evam Prakriti (Sanskrit: विकृतिः एवम् प्रकृति, meaning what seems unnatural is also natural), which some scholars believe recognises homosexual/transsexual dimensions of human life. This is only the surface of queer history or metaphors in India. While ancient Indian legal texts took varied positions on homosexuality, ranging from a societal acceptance, even if not religious to even antagonistic, it is worth mentioning that homosexual acts were liable to the lowest grades of fine or mere ritualistic repentances of taking a “purifying bath” or consuming the “5 products procured from a cow” in accordance with the texts. Several other types of heterosexual intercourses were punished far severely than their homosexual counterparts, such as adultery. The Nāradasmṛti and the Sushruta Samhita, two important scriptures from ancient India relating to dharma and medicine, respectively, declare homosexuality to be unchangeable and forbid homosexuals from marrying a partner of the opposite sex.
Despite what the legal sourcebooks may say, all of which were penned by Brahmin men, homosexuality existed just fine amid the masses. The most common examples of which are the temples of Khajuraho and the poetic works of the great Sanskrit playwright, Kalidasa that often talk of men who pleasure other men and women who “. The temples of Khajuraho were built by Chandela kings between950 AD to 1050AD. Almost all of these temples are dedicated to Shiva and Vishnu, with a few exceptions of Jain complexes. These temples are noted for the erotic sculpture that adorn every temple wall on the outside, while from the inside, these complexes are elegant and humble. The sculptures or those who commissioned them made no distinction between homosexuality and heterosexuality. While the British archaeology department had first discovered these temples, they used words such as vulgar and obscene, a more indigenous (and more practical, in my humble opinion) academic consensus states that these sculptures intended to discourage men who wished to take up asceticism reminding them of worldly pleasures, as one shall not partake in them after joining monastic order. This signifies that in the material world, all comfort was taken as equal.
For the transgender and the gender non-conforming population, the Indic texts have categorised them as the “third-gender” that has come to be termed differently in each vernacular language. The trans folks have historically been associated with professions of dance and music and acting. However, the mere term at times was used to refer to effeminate men as well. Countless myths and folk tales also account for what today may be termed as “gender fluidity.” The most famous of these tales is perhaps that of Shikhandi or as he was previously known as, Shikhandini/Amba. This prince of Drupad is said to have attained a boon that changed his biological sex and because of which, he was able to avenge his abduction by Bheeshma in a past life. In addition to this, after bloody war of Mahabharata ended, he was crowned the king of Drupad, and was favoured greatly for this position by Krishna, who is reputed to have favoured only those kings whom he knows will uphold Dharma – the righteous way of life according to Hindu texts. In addition this, another tale that requires a special mention here from the Yog Vasishtha, that of King Shikhidhwaja, a man who receives enlightenment from his wife, who can turn into a man to become his mentor.
All of this however started to change as time “progressed.” With the increase of Abrahamic influence, the Indian view on queerness changed into that of a moralistic disapproval. Even then, Mughal historic records often mention noblemen in same sex relationships and literature sourced from the common masses still mentions homosexuality and gender fluidity as a way of life amid countless others.
All of this changed when the British brought the English law that included a penal code. The said code came to be known as Section 377 that penalised all carnal activities except that which were “in accordance with nature” or could possibly result in procreation. This draconian law continues to be part of many penal codes of nation that are former colonies, but it is pertinent to mention here that Britain itself did away with this law in 1967 (see: Sexual Offences Act, 1967), a mere two decades after Indian independence.
In modern India though, it took years of activism for such a fundamental right to be even considered by the judiciary of India. The law was repealed once in 2009 by the Delhi High Court but the judgment was overturned by the Supreme Court, stating that such matters should be legislated on by the government and not the judiciary.
“An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality.”
— - Chief Justice Dipak Misra and Justice AM Khanwalkar.
It was Navtej Singh Johar v. Union of India in 2018 that finally decriminalised homosexuality in modern India. However, despite having decriminalised homosexuality and all this rich history of gender fluidity and same sex relationships, the queer community of India still fights a battle that few know of and even fewer sympathize with.
Familial abuse and familial rejection is a common reason for homelessness and suicide among LGBTQ+ people, according to the 2008 report titled Suicide Risk and Prevention for Lesbian, Gay, Bisexual, and Transgender Youth. Even now, on coming out, LGBTQ+ individuals may face corrective rape (rape of queer women by male family members), conversion therapy and other such methods to “cure” someone of their homosexuality. In an official statement issued on 21 May, the Indian Association of Clinical Psychologists (IACP) called ‘Conversion Therapy’ a ‘dangerously harmful,’ ‘discredited,’ and ‘painful and traumatising unprofessional practice.’ Even the judgement on Section 377 in 2018 states, “Counselling practices will have to focus on providing support to homosexual clients to become comfortable with whom they are and get on with their lives, rather than motivating them for a change.
In addition to this, the queer youth is 5 times more likely to suffer from depression and other mental illnesses. The suicide rate stands alarmingly high as well. Most of the queer youth has had attempted suicide at least once by the age of 20.
Also, it was only in 1994 that transgender folks were granted the right to vote and in 2014 were they recognised as a socially and economically backward community that is eligible for reservations and can change their genders without having gone through any surgery.
In the same Navtej Singh Johar v. Union of India, Justice Indu Malhotra said history owes an apology the LGBTQ community:
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.”
In a judgment passed on 12 June, 2020 Hon’ble High Court of Uttarakhand ruled that people belonging to the same-sex have the right to dwell in live-in relationships just as a heterosexual couple may.
Despite these “victories” we are still miles away from creating a truly just society for the queer community and a good place to start shall be the legalisation of gay marriage.
“The arc of the moral universe is long, but it bends towards justice.” ― Theodore Parker