Homosexuality is generally considered a taboo subject by both Indian civil society and the government Public discussion of homosexuality in India has been inhibited by the fact that sexuality in any form is rarely discussed openly. In recent years, however, attitudes towards homosexuality have shifted slightly. In particular, there have been more depictions and discussions of homosexuality in the Indian news media and by Bollywood. On 2 July 2009, a Delhi High Court court ruling decriminalized homosexual intercourse between consenting adults was and adjudicated Section 377 of the Indian Penal Code to be conflicting with the fundamental rights guaranteed by the Constitution of India.
Religion has played a significant role in shaping Indian customs and traditions. While homosexuality has not been explicitly mentioned in the religious texts central to Hinduism, the largest religion in India, some interpretations have been viewed as condemning homosexuality. Scholars differ in their views of the position of homosexuality within India's main religious traditions. There have been arguments that homosexuality was both prevalent and accepted in ancient Hindu society.
Several organizations like the Naz Foundation (India), National AIDS Control Organization, Law Commission of India, Union Health Ministry, National Human Rights Commission and The Planning Commission of India have either implicitly, or expressly come out in support of decriminalizing Homosexuality in India, and pushed for tolerance and social equity for lesbian, gay, bisexual and transgendered people. India is among countries with a social element of a third gender.
History and relegion :
The Manusmriti, which lists the oldest codes of conduct that were proposed to be followed by a Hindu, does include mention of homosexual practices, but only as something to be regulated. Though homosexuality was considered a part of sexual practices, it was not always well accepted. There were punishments prescribed for homosexual behaviour. For instance, the verse referring to sexual relations between an older woman and a virgin (woman) reads"...a woman who pollutes a damsel (virgin) shall instantly have (her head) shaved or two fingers cut off, and be made to ride (through the town) on a donkey", suggesting a severe punishment. However, the verse referring to sexual relations between two virgins suggests a relatively milder punishment – "...a damsel who pollutes (another) damsel must be fined two hundred (panas), pay the double of her (nuptial) fee, and receive ten (lashes with a) rod". These provisions, quoted out of context, seem homophobic, but in fact they are concerned not with the gender of the partners but with the loss of virginity that rendered a young woman unworthy of marriage. For instance, the punishment for a forced sex act between a man and a woman states "...if any man through insolence forcibly contaminates a maiden, two of his fingers shall be instantly cut off, and he shall pay a fine of six hundred (panas)", which seems more severe in comparison to the punishment prescribed for the same act between two virgins. There is also no penalty prescribed for two non-virgins who have sex together.
The punishment for male offenders was less severe: "...an unnatural offence with a man, are declared to cause the loss of caste (Gatibhramsa)". "...man who commits an unnatural offence with a male...shall bathe, dressed in his clothes". The punishment seems extremely mild, as this is supposedly how most villagers traditionally took their baths.
The skewed treatment may have been due to gender bias, considering that the Manusmriti is the same scripture that has stated that the status of woman in the society is the same (or even lower than) that of a man’s land, his cattle and other possessions.
The unabridged modern translation of the classic Indian text Kama Sutra. deals without ambiguity or hypocrisy with all aspects of sexual life—including marriage, adultery, prostitution, group sex, sadomasochism, male and female homosexuality, and transvestism. The text paints a fascinating portrait of an India whose openness to sexuality gave rise to a highly developed expression of the erotic.
In "Same-Sex Love in India : Readings from Literature and History", authors Ruth Vanita and Saleem Kidwai analyse the history of homosexual behaviour in India, drawing from Hindu, Buddhist, Muslim, and modern fictional traditions. The preface to the book states that it 'traces the history of ideas in Indian writing traditions about love between women and love between men who are not biologically related.' The book has a collection of stories from ancient texts like Mahabharata, Panchatantra, Kamasutra, Shiva Purana, Krittivasa Ramayana, The Skanda Purana, Amir Khusro, and Baburnama; along with contemporary Indian literature that support the idea.
LGBT culture in India :
There is a vibrant gay nightlife in cities such as Mumbai, Hyderabad, and Bangalore, including discos and nightclubs. The reports of harassment of homosexual individuals and gatherings by the police has seen a gradual decline since 2004. The majority of Indians, according to various polls and surveys, still look down upon the LGBT community. However, many social and human rights activists have been working to promote an increased acceptance of homosexuality. Time Out (Delhi) has a dedicated column covering gay events in Delhi every week. Now with the emergence of several LGBT support groups across the nation, the much hidden queer community has increased access to health services and social events.
In 2005, Prince Manavendra Singh Gohil, who hails from a conservative principality in the Gujarat state, publicly came out as gay. He was quickly anointed by the Indian and the world media as the first openly gay royal. He was disinherited as an immediate reaction by the royal family, though they eventually reconciled. He has appeared on the Oprah Winfrey show, and is currently appearing on BBC3's Undercover Princes.
In 2008, Zoltan Parag, a competitor at the Mr. Gay International contest said that he was "scared" to return to India fearing discrimination. He said, "Indian media has exposed me so much that now when I call my friends back home, their parents do not let them talk to me".
On 29 June 2008, four Indian cities (Delhi, Bangalore, Kolkata and Puducherry) celebrated gay pride parades. These were the first pride parades in Delhi, Bangalore and Puducherry. About 2000 people turned out in these nationwide parades. Mumbai held its pride march on 16 August 2008, with Bollywood actress Celina Jaitley also coming out to join in the festivities.
On 16 April 2009, India's first gay magazine Bombay Dost, was re-launched by Bollywood actress and former Miss India Celina Jaitley in Mumbai.
On 27 June 2009, Bhubaneswar, the capital city of the Orissa state, saw its first gay pride parade. The same day, Union Law Minister Veerappa Moily announced that the Union Home Minister has convened a meeting with Union Law Minister, Union Health Minister and Home Ministers of all states to evolve a consensus on decriminalising homosexuality in India. On 28 June 2009, Delhi and Bangalore held their second gay pride parades, and Chennai - generally considered to be a very conservative city - held its first.
The Internet has created a prolific gay cyber culture for the South Asian community. Gay dating websites provide an alternative way for meeting people; online communities also offer a safe and convenient environment for meeting gays all around India. The blogsphere has also not been immune to the modern emergence of a queer desi identity. Web logs highlight stories and issues specific to this marginalised community.
Though Bollywood (as the Indian Hindi film industry is loosely called) has gay and trans characters, they have been primarily ridiculed or abused. There are few positive portrayals of late like Onir's My Brother Nikhil, Reema Kagti's Honeymoon Travels Pvt. Ltd., Parvati Balagopalan's Rules: Pyaar Ka Superhit Formula, etc. but they have been sporadic and not mainstream. There have also been a few independent films that deal with homosexuality like Sridhar Rangayan's Gulabi Aaina - The Pink Mirror, Yours Emotionally, 68 Pages and Ashish Sawhney's Happy Hookers. The first Indian film to deal openly with homosexual relations was Fire by Indian-Canadian director Deepa Mehta. With its release in India 1998 it stirred up a heated controversy throughout the country.
Advocacy for legalising homosexuality :
The Naz Foundation (India), a New Delhi based NGO is at the forefront of the campaign to decriminalise homosexuality. The organisation aims to sensitise the community to the prevalence of HIV, as well as highlight issues related to sexuality and sexual health. The organisation has strong linkages with human rights groups and agencies such as Lawyers Collective, Human Right Law Network, Amnesty International, International Gay and Lesbian Human Rights Commission. Naz India has collaborated with these agencies to address cases of sexual rights abuse. Naz India’s efforts in sensitising the government to different issues related to the epidemic include the amendment of Section 377 of the Indian Penal Code commonly known as the ‘Anti-sodomy Law’. This act criminalises same sex sexual behaviour irrespective of the age and consent of the people involved, posing one of the most significant challenges in effective HIV/AIDS interventions with sexual minorities. In December 2002 Naz India filed a Public Interest Litigation (PIL) to challenge IPC section 377 in the Delhi High Court.
In September 2006, Nobel Laureate Amartya Sen and acclaimed writer Vikram Seth came together with scores of other prominent Indians in public life to publicly demand this change in the legal regime. The open letter demands that 'In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down.'
On 30 June 2008, Indian labour minister Oscar Fernandes backed calls for decriminalisation of consensual gay sex, and the Prime Minister Manmohan Singh called for greater tolerance towards homosexuals.
On 4 July 2008, gay activists fighting for decriminalisation of consensual homosexuality at the Delhi High Court got a shot in the arm when the court opined that there was nothing unusual in holding a gay rally, something which is common outside India.
On 23 July 2008, Bombay High Court Judge Bilal Nazki said that India's unnatural sex law should be reviewed.
Former Indian health minister Anbumani Ramadoss advocated legalising homosexuality in India. On 9 August 2008, he campaigned for changing "Section 377" of the Indian penal code, which makes homosexuality an unnatural act and thus illegal. At the International AIDS Conference in Mexico city, he said, "Section 377 of IPC, which criminalises men who have sex with men, must go." His ministerial portfolio had put him at odds with the Indian Home ministry in seeking to scrap Section 377. In late 2008, he changed his argument saying he does not want the "scrapping" of Section 377 but a mere "modification" of the law treating homosexuality as a criminal offence punishable up to life imprisonment. He said he wants Prime Minster Manmohan Singh to resolve the matter, while he wanted to avoid discord with the home ministry, who said the altered law would then result in an increase in criminal incidences of sodomy or offences involving sexual abuse of children, particularly boys. In doing so he alleged that the law even penalises health workers for "abetting," while making this a cognisable and non-bailable offence. "The entire objective of getting homosexuality decriminalised is primarily to reach out to an estimated 4.5 million MSMs across the country as about 86 per cent HIV/AIDS-affected persons in India are ‘Men Having Sex with Men’ (MSM). My concern is purely on health grounds because Section 377 in its present form interferes with health ministry’s efforts to tackle HIV/AIDS epidemic, as even the doctors treating gay patients could be punished. Hence unless we take appropriate steps it would be difficult to contain the spread of the virus." He added the last comment saying the disease through blood transfusion and parentage declined while the other methods were hindering tackling the epidemic.
International pressure :
The United Nations urged India to decriminalise homosexuality by saying it would help the fight against HIV/AIDS by allowing intervention programmes, much like the successful ones in China and Brazil. Jeffrey O'Malley, director of the United Nations Development Programme on HIV/AIDS, said countries protecting homosexuals from discrimination had better records of protecting them from getting infected by the diseases. [But] unfortunately in India, the rates of new infections among men who have sex with men continue to go up. Until we acknowledge these behaviours and work with people involved with these behaviours, we are not going to halt and reverse the HIV epidemic. Countries which protect men who have sex with men... have double the rate of coverage of HIV prevention services—as much as 60 percent." In talking to the The Hindu, he added that "The United Progressive Alliance government here is in a difficult position as far as amending Section 377 of the Constitution is concerned because of the coming elections as any changes could be misrepresented. We need to change the laws, sensitise the police and judiciary....But when discriminatory laws have been removed, marginalised people have got access to treatment and prevention facilities like condoms." Warning of the urgency he said, "India has achieved success in checking the spread of this dreaded disease through commercial sex workers but transmission through gay sex, and injectable-drug users is still an area of concern. Injectable-drug use can also be controlled through targeted interventions but is difficult to control or change people’s sexual habits."
Legal status :
See also: Section 377 of the Indian Penal Code
Indian law does not recognise same-sex marriages, nor does it provide for civil unions. Until July 2009, homosexual intercourse was a criminal offence under Section 377 of the Indian Penal Code, 1860, which made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." Whilst convictions under this section were extremely rare, with no convictions at all for homosexual intercourse in the twenty years to 2009, Human Rights Watch have said that the law has been used to harass HIV/AIDS prevention activists, as well as sex workers, men who have sex with men, and other groups at risk of the disease. The group documents arrests in Lucknow of 4 men in 2006 and another 4 in 2001. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities and, in particular, transsexuals (hijras and kothis) in India.
In recent years, the continued existence of this section had become controversial. The Law Commission of India had historically favoured that the retention of this section, but in its 172nd report, delivered in 2000 it recommended its repeal, as did the then Health minister, Anbumani Ramadoss, in 2008. On 2 July 2009, in the case of Naz Foundation v National Capital Territory of Delhi, the High Court of Delhi struck down much of S. 377 of the IPC as being unconstitutional. The Court held that to the extent S. 377 criminalised consensual non-vaginal sexual acts between adults, it violated an individual's fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India. The High Court did not strike down S. 377 completely - it held the section was valid to the extent it related to non-consensual non-vaginal intercourse or to intercourse with minors - and it expressed the hope that Parliament would soon legislatively address the issue.
Decisions of a High Court on the constitutionality of a law apply throughout India, and not just to the territory of the state over which the High Court in question has jurisdiction. As a result, the decision of the Delhi High Court has the effect of striking down S. 377 throughout the territory of India, with the exception of the State of Jammu and Kashmir which has its own penal law. However, the decision does not bind courts outside Delhi, although it has persuasive value, which means that the High Court of any other state could in theory dissent from the decision of the High Court of Delhi and hold the section to be valid.
Legal aspect :
In 2008 Additional Solicitor General PP Malhotra said:
Homosexuality is a social vice and the state has the power to contain it. [Decriminalising homosexuality] may create [a] breach of peace. If it is allowed then [the] evil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society." A view similarly shared by the Home Ministry. He argued before the bench of the Delhi High Court that it was crucial to hold such "unnatural" behaviour as a criminal offence and that its deletion would lead to moral degradation. Citing an Orissa court judgement, he also added that such behaviour resulted from a perverse mind that needed to be controlled.
Recognition of same-sex couples :
There is no legal recognition of same-sex couples under Indian law. During a recent visit to India by the Canadian Prime Minister Paul Martin, the Indian Prime Minister Manmohan Singh was asked by a journalist what he thought of the new law allowing gay marriage in Canada. His reply was that "there would not be much appreciation for a law like that in India," and he went on to talk about how they were culturally very different societies.
The supreme Sikh religious body, the Akal Takht, has issued an edict condemning gay marriage and has told Sikhs living in Canada not to support or allow gay marriages in gurudwaras. In 2005, two unnamed women in Hyderabad asked the Darul Qaza, an Islamic court, for a fatwa allowing them to marry, but permission was denied with a rebuke from the chief qazi. None of the principal Christian denominations in India allow same-sex marriage.
However, since 1987, when the national press carried the story of two policewomen who married each other by Hindu rites in central India, the press has reported many same-sex marriages, all over the country, mostly between lower middle class young women in small towns and rural areas, who have no contact with any gay movement. Family reactions range from support to disapproval to violent persecution. While police generally harass such couples, Indian courts have uniformly upheld their right, as adults, to live with whomever they wish. In recent years, some of these couples have appeared on television as well. There have also been numerous joint suicides by same-sex couples, mostly female (male-female couples also resort to suicide or to elopement and religious marriage when their families oppose their unions). In "Same-Sex Love in India : Readings from Literature and History", author Ruth Vanita analyses dozens of such marriages and suicides that have taken place over the last three decades, and explores their legal, religious, and historical aspects. She argues that many of the marriages can arguably be considered legally valid, as under the Hindu Marriage Act, 1955, any marriage between two Hindus performed according to the customs prevalent in the community of one of the two partners is legally valid. No license is required to marry, and most heterosexual Hindu marriages in India today are performed by religious rites alone, without a marriage license and are never registered with the state. State recognition is not sought by most couples because it confers few benefits. Most couples seek the validation of family and community, and several female couples in rural areas and small towns have received this validation.
There have also been a couple of high profile celebrity same-sex marriages, such as the civil union of designer Wendell Rodricks with his French partner, conducted under French law in Goa, India. LGBT rights organisations have demanded the right to same-sex marriage, and, inspired both by news from the West, have discussed the issue.
Sources : Newspapers and http://www.wikipedia.org