Baba’s Explainer – A Brief History of LGBT Rights and Laws in India

On June 7, 2021, Justice N. Anand Venkatesh of the Madras High Court gave a landmark ruling on a case he was hearing about the ordeal of a same-sex couple who sought police protection from their parents.

• Ban Order: The ruling prohibited any attempt to medically “cure” or change the sexual orientation of LGBTQIA+ people. It urged the authorities to take action against “professionals involving themselves in any form or method of conversion therapy,” which could include the withdrawal of licence to practice medicine.
• Right to Life: Justice Venkatesh issued a slew of interim guidelines for the police, activists, Union and State Social Welfare Ministries, and the National Medical Commission to “ensure their safety and security to lead a life chosen by them.”
• Close Pending Cases: The Madras High Court directed the police, for example, to close complaints of missing persons’ cases, “without subjecting them to harassment”, if it found on investigation that the parties were consenting adults belonging to the LGBTQIA+ community.
• List of NGOs: The court asked the Ministry of Social Justice & Empowerment to draw up a list of NGOs and other groups which could handle the issues faced by the community,
• Legal Assistance: The court said the community should be provided with legal assistance by the District Legal Services Authority in coordination with law enforcement agencies.
• Sensitization: Asking agencies to follow the Transgender Persons (Protection of Rights) Act, 2019, in letter and spirit, the court said it was imperative to hold sensitisation programmes for an all-out effort to understand the community and its needs.

If the Supreme Court’s decriminalising of homosexuality in 2018 by striking down Section 377 of the Indian Penal Code was a first step, the NMC’s notice is also a small move towards inclusivity.

• in Navtej Singh Johar vs Union of India case of 2018, five-judge bench read down parts of Section 377 of the Indian Penal Code (IPC) and allowed LGBT individuals to engage in consensual intercourse without fear of imprisonment.
• But this wasn’t always the case. Just 30 years before this, the same India that now allows people to take lovers of the same sex, was an India that persecuted openly gay people.
• So, how did the country make this transition? What changed from 1861 to 2018?

• Before the imposition of colonial-era laws under British rule, India had its own texts, which detailed the practice of homosexuality and same-sex intercourse.
• As far back as 400 BC, the Kama Sutra, said to be written by Indian philosopher Vatsyayana, describes homosexual acts in detail, including explicit instructions on how to perform such acts.
  • It describes men who have sex with men, women who have sex with women, as well as bisexuals, transgender persons, and intersex persons.
• Meanwhile, in South India, the oldest of Tamil texts, Tamil Sangam literature from 3 BC to 4 AD, included descriptions of man-on-man relationships and relationships between transgender people.
• Other ancient texts like the Arthashastra, Nardasmriti, and Sushruta Samhita also mention different types of same-sex relationships.
• But as much as some myths and ancient texts detailed, and even instructed, on LGBT relationships, other texts like the Manusmriti derided the same.
  • The Manusmriti, for example, detailed punishments like shaving the head of a woman or cutting off her fingers, as punishment for engaging in lesbian intercourse.
• Apart from the texts, the walls of ancient architecture are the second source of information about ancient India’s thoughts on sexuality. For example, the temples of Khajuraho, depict same-sex relationships and bisexual relationships, as well as other acts of what was till a while ago termed “unnatural intercourse.”
• However, in India during Mughal rule, “unnatural intercourse” was prohibited under the Fatawa’ Alamgiri, a unified code of guidance based on Sharia law. It included punishments such as lashings for engaging in homosexual intercourse.

• The first codified legislation on homosexuality in India was Section 377 of the IPC. The section that dealt with Unnatural offences stated that Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished up to ten years, and shall also be liable to fine.
• The text of Section 377 of the IPC remained deliberately vague to be applied on a case-by-case basis to any “carnal relationships against the natural order”. This extends to gay, lesbian, bisexual, and trans relationships, as well as acts like bestiality and sodomy.
  • Section 377 and other homosexuality laws in India were “products of minds that were deeply influenced by the ‘sex is sin’ stance of the Christian Bible.”
• Even in the years just prior to Independence in 1947, being outspoken about “unnatural sexuality” was often met with harsh consequences under the law.

• After Independence and Partition, both India and Pakistan adopted their respective versions of the original IPC as the Indian Penal Code and the Pakistan Penal Code.
• Section 377 continued to stay in effect and members of the LGBT community faced persecution and ostracism in many forms.
  • For example, in 1987, police officers Leela and Urmila from Madhya Pradesh’s Bhopal were sacked as law enforcement authorities after getting “married” and coming out as a lesbian couple.
• In 1990-91, the decline of India’s economy and mounting debt led to liberalisation and globalisation. This ushered in many Western influences, including the presence of western NGOs, many which sought equal rights for LGBT individuals.
• Simultaneously, the rise of HIV AIDS, largely in the gay community, demanded a better outreach programme to limit the spread of the disease.
• It was in 2001 that the Naz Foundation, an NGO that works with HIV+ patients and sexual health, filed a Public Interest Litigation (PIL) challenging the clause as violative of the fundamental right against discrimination enshrined in the Constitution of India.
• In 2009, the Delhi High Court, in Naz Foundation vs NCT of Delhi, ruled that Section 377 was unconstitutional, and struck the law down. The judgement thus decriminalised homosexuality in India for the first time.
  • The HC held that penalising such actions violated the right to privacy and personal liberty under Article 21 of the Constitution. Doing so was also found to fall foul of the right to equal treatment (Article 14) and the prohibition of discrimination (Article 15).
• The verdict, which was hailed as a victory for LGBT rights, was challenged by several anti-gay rights groups on religious, political, and social grounds who claimed that decriminalising homosexuality would affect the institution of marriage.
• In 2013, in Suresh Koushal and Anr vs Naz Foundation and Others, the SC reversed the Delhi HC’s decision stating that “it was up to the Centre to legislate on the issue.” Thus, section 377 was back in statute books that criminalised homosexuality.
• This decision would lead to protests across the country, with the Aam Aadmi Party, the Indian National Congress, and the Communist Party of India (Marxist), making the decriminalisation of homosexuality a part of their election manifesto in the 2014 general Assembly elections.
• In 2018, a five-judge SC bench passed a historic order. The verdict came in a petition by Indian choreographer Navtej Singh Johar and 11 others challenging the constitutional validity of Section 377. The SC read down the provisions of the clause inasmuch as they pertain to consensual same-sex relationships.
• The change in law was welcomed by the LGBT community, and hailed as a victory for LGBT and human rights.

However, while the scrapping of the archaic law has been welcomed by the LGBT community, activists say that more needs to still be done to actively support the LGBT community. This includes better protections for transgender persons, and civil union or marriage rights for same-sex couples.

• Penal Provisions: Taking cue from countries such as Canada, which has banned conversion therapy, there should be clarity on what action will be taken against quacks, psychiatrists and doctors accused of offering reparative treatment and the punishment they will face.
• Changes in curricula: Medical textbooks prescribed in 2018 still consider lesbianism a “perversion”, an act of “mental degenerates”.  Thus, change needs to start in educational institutions.
• Gender-neutral Infrastructure: Gender-neutral restrooms should be compulsory in educational institutes and other places.
• Sensitisation of Parents: The first point of misunderstanding and abuse often begins at home, with teenagers being forced to opt for “conversion” therapies, thus necessitating sensitisation of Parents.
• Societal Changes:  Indian institutions and society will have to acknowledge the “variability of human beings” and accord equal respect to every one, whatever the sexual orientation or gender identity.
• Legal Modifications: The changes in societal level has to be complemented by laws better tuned to the needs of a diverse community than the Transgender Persons (Protection of Rights) Act, 2019, has sought to do.