The world’s largest democracy, home of the Kama Sutra and ancient erotic temple carvings, has once again instituted a legal ban on gay sex, rendering it illegal, and potentially subjecting those found guilty of any number of homosexual acts to life imprisonment.
The Supreme Court of India reinstated the 1860 Penal Code prohibition against "carnal intercourse against the order of nature with any man, woman, or animal" after a four-year period of decriminalization.
In 2009, the Delhi High Court, in Naz Foundation vs Government of NCT (National Capital Territory) of Delhi, found section 377 of the Indian Penal Code, and other legal proscriptions against private, adult, consensual and non-commercial same-sex conduct, to be in direct violation of the Indian Constitution.
The case was appealed to the Supreme Court, which overturned the lower court’s decision, effectively reinstating the original section of the Penal Code, and stating that only the Indian Parliament could change or repeal Section 377. This is unlikely, given the highly conservative social nature of India and the strong hold traditional views have on the country.
In 2012 the Union Home Ministry, or Ministry of Home Affairs as it is also known, told the Supreme Court that the ministry, and therefore the Central Government, was opposed to the decriminalization of homosexual activity. A spokesperson within the ministry stated, "[homosexuality] is highly immoral and against the social order". The ministry went on to say that India’s moral and social values were different from other countries and, therefore, the state should not be guided by them.
The Central Government, a centre-left coalition, reversed its stand five days later, asserting that there was, in fact, no error in decriminalizing homosexual activity after all. This resulted in the Supreme Court reprimanding the government for frequently changing its stand on the issue. "Don’t make a mockery of the system and don’t waste the court’s time," a Supreme Court judge told the government.
In explaining their decision, the Supreme Court wrote the Delhi High Court had "overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders, [sic] and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section" in violation of the Indian Constitution.
While same-sex activity between consenting males or consenting females is once again a criminal offence in India, one class of transsexual persons, known as hijra, were granted protection and voting rights in 1994.
Hijras have a long history in both India and what is now Pakistan and Bangladesh, dating back over 2,000 years. Many hijras live in well-defined, organized communities headed by a guru or spiritual leader. The hijra encompass a variety of identities. Some are biological males who cross-dress and have adopted the female role. Others are what in the West would be described as male-to-female transsexuals. Others are either inter-sexed (a blending of male and female genitalia) or eunuchs who have undergone a ritual known as nirwaan in which they are castrated and have the penis removed.
While seen as outcasts within the traditional caste system, and generally ridiculed and shunned, they are sought out to bless newborns, or sometimes sing and dance at Hindu weddings. Many hijras earn a living either by begging and/or as sex trade workers.
Contributing to the complex, and often contradictory, response to homosexuality is the silence surrounding it in predominately Hindu India and in conservatively Muslim Pakistan and Bangladesh. Sexuality, generally, is seen as a very private matter. While homophobia remains an issue throughout India, with families ostracizing gay or lesbian members and those known to be or believed to be homosexual often violently attacked, attitudes do seem to be changing. Indian media has begun depicting and discussing homosexuality more frequently and Bollywood, the favourite style of movie-making in India, has begun to depict storylines featuring same-sex couples.
There is historical evidence, however, to suggest what we would consider to be homosexuals were not necessarily seen as inferior, merely as a variation, until the influence of the British Raj in the 19th Century. Much of India’s current legal and legislative system is based on the British model and their Penal Code dates from the Raj period (1858-1947).
Much of modern-day India’s cultural and legal perceptions have been strongly influenced by the British presence in India. The Raj saw the rise of an often British-educated Indian middle-class, yielding Western attitudes yet still maintaining "Indian" form.
Modern technology and the Internet have also influenced India, making it one of the largest homes to call centres servicing the Web. This has played no small role in the gradual acceptance of ‘Westernized ideas’, including Western concepts of sexuality, generally, and homosexuality, specifically, which have historically been quite different from Eastern or even Middle Eastern concepts. This integration of Western ideas is gradually creating a view that homosexuality is not so much a behaviour to be penalized but an innate orientation which, while it differs from the dominant heterosexual orientations, is merely a variation within human sexuality.
With the reinstating of Section 377 Indian courts are clearly a long ways away from fully understanding the nature of homosexuality, let alone any legal recognition or protection of it. Same-sex marriage is not even on the political horizon and is several years, perhaps several decades, away from ever being considered viable.
For now, the struggle is for gay men – and other men who have sex with men – and lesbians to not be seen as and treated as criminals. It is going to be a long road.
