The subject of LGBTQ rights has been at the forefront of many contemporary debates around the world. The hardships that the community faces due to political, legal and social prejudice, has gained attention both nationally and internationally. In the past few years, there have been many strides made towards addressing these issues. This includes: Amnesty International’s 1991 policy, which supports the rights of people who have been imprisoned due to their sexual orientation; the legalization of same-sex marriage in countries such as Canada, Netherlands, New Zealand, South Africa and The United States; and the UN appointment of an expert to address the violence and discrimination against people due to their sexual orientation or gender identity.
Homosexuality has been decriminalized in most “western” or “Euro-centric” countries; however, there are many countries that still do not recognize the rights of the community, by maintaining laws that criminalize ‘homosexual behaviour’. As of 2015, 41 out of 53 countries belonging to the Commonwealth (nations that were formerly British colonies), have laws in place that criminalize same-sex activity in some way; leading to around 92% of Commonwealth citizens living under jurisdictions that criminalize same-sex activities. Majority of these laws stem from colonial era anti-sodomy statues, which were either retained word for word after independence, or were retained and extended to create further discrimination . The debate now centers a binary between the “pro-LGBT” western nations and the “anti-LGBT” non-western countries; the irony being that some of the laws, ad attitudes criminalizing same-sex activities stem from western colonialism (Kaleidoscope Trust, 2015).
India has been deeply affected by colonialism, starting in the 1600s through the establishment of the East India Company, leading to complete British control from 1858 to 1947, ending with Indian independence. Today, India is considered one of the largest democracies, with a strong democratic and secular constitution in place; however, homosexuality is illegal in the country, and punishable by up to 10 years in prison. This is dictated by Section 377 of the Indian Penal Code which states:
“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 a fine” (IPC s.377).
This law was enacted by the British in 1860, along with the Indian Penal Code, and was retained by the government after Indian independence. S.377 is an anti-sodomy law, labeled as “Unnatural Offences”, which is extended to same-sex couples, especially “men who have sex with men” (MSM). The existence of this law is highly controversial, as it goes against the constitutional right to equality, non-discrimination and security. In 2015, a UN report on discrimination and violence against people based on sexual orientation or gender identity was addressed to the UN High Commissioner for Human Rights, which stated that laws that criminalize homosexual acts are a violation of international human rights; since, just the existence of these laws go against the individual right to privacy and non-discrimination (United Nations Human Rights Council, 2015, p.12).
When looking at LGBTQ rights in India, it is important to address the context in which the community is situated. India has a complex society, mostly due to the country’s rich historical background and immense diversity. Historically, India has ties to one of the earliest civilizations, the Indus Valley Civilization, and has had various religious/cultural authorities, including Muslim and Hindu rule during the Mughal Empire, and British authority through colonialism. Indian society today is a result of this history, leading to a diverse religious, cultural and linguistic communities. Hinduism, Islam, Christianity, Sikihism, Buddhism, and Jainism are six main religions that are practiced by Indians (other religions include Judaism and Zoroastrianism, Parsis). As for languages, Hindi and English are used for legislative purposes, but there is no official national language. India has more than 780 languages with 66 different scripts. According to the 2011 Indian census, there are 122 major languages spoken in the country (Singh, 2013). The presence of such diversity, has lead to deeply rooted ways of knowing and being, that challenge each other, leading to challenges when addressing certain subjects. Homosexuality and LGBTQ rights is one instance of this, where we see a tension between what is considered “Indian” thought, versus knowledge that was influenced or brought by western colonialism; especially as the law in question, that criminalizes homosexuality, was introduced by the British.
Section 377, and LGBTQ rights has gained a lot of attention in India toady, mostly due to the legal battles of s.377. The law was challenged in court by non-governmental organizations, specifically the Naz Foundation, an Indian NGO that advocates for LGBTQ right, specifically working on sexual health and HIV/AIDS issues. The case resulted in the 2009 Delhi High Court decision that decriminalized homosexuality, by repealing S.377 insofar as it pertains to same-sex activities between consensual adults. This was a remarkable victory for LGBTQ community; however, this decision was later appealed to the Supreme Court of India, resulting in the reinstatement of S.377, and the re-criminalization of homosexuality in India today. On the other hand, in 2014 the Supreme Court decided to grant transgender rights, by recognizing “Third Gender”, especially in regards to the traditional gender variant communities of India, such as the Hijra community, and established anti-discriminatory and equality provisions for those who identify as transgender or “third gender”.
What is especially interesting in this case, is the tension between having to respect traditional knowledge and culture, while at the same time being deeply influenced by colonial knowledge, globalization, and modernity. Homosexuality is not a new phenomenon in India, there is a long-standing history of gender variant communities, that have been in existence prior to colonialism. Some scholars also argue that, the homophobia that is present in India today did not originate from Indian civilization, instead has been heavily influenced by British colonialism (Hurteau, 2013). This shows a possible disconnect between perceptions of homosexuality pre- versus post-colonialism. It can be argued that, the LGBTQ community today is stuck in the middle of this tension, by having traditional gender variant communities being respected on one hand, and on the other, having homosexuality be cirminalized based on a colonial law; therefore, it could be beneficial to go deeper into the historical, political and social context of the LGBTQ community in India, in order to understand their challenges and position within Indian society.
Kaleidoscope Trust (2015) Collaboration and consensus: Building a constructive commonwealth approach to LGBT rights. Retrieved from http://kaleidoscopetrust.com/usr/resources/47/lgbtcitizenshipreport.pdf
Indian Penal Code, 1971, http://lawcommissionofindia.nic.in/1-50/report42.pdf
Singh, S. “Language survey reveals diversity”. The Hindu, July 22, 2013, accessed April 24, 2017. http://www.thehindu.com/news/national/language-survey-reveals-diversity/article4938865.ece
United Nations Human Rights Council (2015). Discrimination and violence against individuals based on their sexual orientation and gender identity: Report of the Office of the United Nations High Commissioner for Human Rights. (Report No. A/HRC/29/23) Retrieved from http://kaleidoscopetrust.com/usr/library/documents/main/final-sogi-a_hrc_29_23_en.pdf
Hurteau, P. Hinduism. In Male homosexualities and world religions. (New York: Palgrave Macmillan, 2013) 7-30
Naz Foundation v.Government of NCT of Delhi and others, WP(C) No.7455/2001 (High Court of Delhi July 2, 2009) http://data.unaids.org/pub/externaldocument/2009/20090702_section_377_en.pdf
Suresh Kumar Koushal and another v. NAZ Foundation and others, 10972 (Supreme Court of India December 11, 2013). http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070
National Legal Services Authority v. Union of India (Supreme Court of India April 15, 2014). http://judis.nic.in/supremecourt/imgs1.aspx?filename=41411