Homosexuality in ancient India: Tracing the history
Hinduism, which is said to have originated from the Indus-valley civilization, is the third largest religion in the world and has about 1.1 billion followers across the globe. In ancient Hindu mythology and literature, the line demarcating two genders i.e. male and female, is often blurred. Homosexuality was widely discussed in detail and to an extent accepted in the ancient times. Rig Veda is among the earliest texts in Hinduism and is considered as one of the pillars of the religion. It propagates the idea of ‘Vikruti Evam Parakriti’ which means ‘what is unnatural is also natural’. According to various Hindu legends, Lord Ayyapa, also known as Hari-Hara suta, is considered as the son of Lord Shiva (Hara) and Lord Vishnu (Hari). Shikandi, a notable character from the Hindu epic Mahabharata, is transgender. Moreover various ancient Hindu temples, including the ones in Khajuraho and Madurai, are known for their erotic sculptures depicting sexual acts between the sexes. The world famous Kama sutra is an ancient Indian text written by Vatsyayana between 400-200 BCE. The term ‘kama’ meaning desire, including sexual desire, is one of the four goals of Hindu life and the term sutra denotes to a thread that holds things together. This Indian classic describes in detail, various sexual acts which may be considered as ‘un natural’ in the present day. These legends, scriptures and sculptures from the past that validate the existence of different sexual orientations tell us that homosexuality was indeed recognised and was neither persecuted for at that point of time in this part of the world. At a time when a Member of Parliament, from the ruling party that believes in the revival of Hinduism, calls homosexuality a ‘genetic flaw’ and when a country where a majority of the present generation considers homosexuality a taboo, it would only appear that the earlier versions of Hinduism were more open, progressive and inclusive than that of the 21st century, at least with homosexuality. So how did our attitudes change?
Colonial Era: Macaulay the homophobe
The European powers, namely the Portuguese, Dutch, French and the English, which colonized and ruled India for centuries, considered India as a land of uncivilized heathens and therefore had tried to reform our society from the ‘social evils’ that they regarded as immoral They tried to “civilize” us by imposing their moral values based on the Bible, which considers homosexuality a sin. Leviticus 18:22 states, “You shall not lie with a male as with a woman: it is an abomination”. Furthermore “If a man lies with a man as with a woman, both of them have committed an abomination: they shall be put to death; their blood is upon them”. (Leviticus 20:13)
The British East India Company ruled India from 1757 till 1858 whereafter India came under the direct rule of Queen Victoria. Lord Thomas Macaulay, who was appointed as the first law member of Governor General’s council, believed that it was the duty of the British to modernize Indians through biblical principles. His attitude towards the Indian society was evident from his quote, “A single shelf of a good European library was worth the whole native literature of India and Arabia”. He is the architect of Indian Penal Code and is the one who had drafted the ‘notorious’ Section 377 for ‘Unnatural offences’. The section reads as follows, “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 fine.” This 150-year-old colonial-era piece of law was an attempt to impose Victorian morality on their biggest colony, which they thought was a civilization stuck in the dark ages. Likewise, this Indian Penal Code was later applied widely in other British colonies as well. Former colonies like Jamaica, Malaysia, Pakistan, Kenya and Uganda too had or still have similar provisions criminalizing homosexuality.
In the United Kingdom, the punishment for homosexuality was death till 1861, which was subsequently reduced to life imprisonment. This lasted till 1967 when our colonial masters decided to decriminalize homosexuality in their country by introducing Sexual Offences Act. Eventually same sex marriage was legalised in the year 2014. But we Indians still have this ‘colonial hangover’ where we still follow this ancient piece of legislation which is a-century-and-a-half old, refusing to move on.
Judicial Interventions: The timeline
Queer activism started getting popular in India in the 80s. Veteran journalist Ashok Kavi Row was one of the first Indians to come out in public as gay. The gay magazine that he started called ‘Bombay Dost’ is even popular today. In 1991, when India opened its doors to the outside world by liberalising the economy, voices against Section 377 got louder. The year 1991 marked the arrival of LGBT pride march in India when a small group of activists marched in the city of joy, Calcutta, holding rainbow flags. .
However it was only in 2001 this law was formally challenged in a court of law for the first time. Naz Foundation, an NGO working for gay rights filed a Public Interest Litigation seeking the legalisation of homosexuality in India. And in 2009, after a long legal battle, Delhi High Court struck down Section 377 in Naz Foundation vs. Government of NCT of Delhi. Justice A.P Shah and Justice S. Muralidhar held that criminalization of consensual gay sex violated the rights to dignity and privacy guaranteed under Article 21 of the Indian constitution. They further opined that Section 377 violates Article 14 which guarantees equality to the people of India. The Court also held that the word sex includes not only biological sex but also sexual orientation, and any discrimination on the basis of sexual orientation violates Article 15, which forbids discrimination. With the landmark judgement, the queer community in India had celebrated their victory in the realisation that they are no longer criminals and that they can’t be thrown into prison because of their sexual preferences. Naz Foundation judgement had given courage to a lot of people belonging to the LGBT community to come out of the closet and declare that they are “Gay and Proud”. This was the most important moment in the history of queer movement in India when constitutional morality triumphed over societal morality.
The euphoria followed by the judgement didn’t last long though; merely four years to be precise. To the LGBT community’s disbelief, the Supreme Court of India, in 2013, in Suresh Kumar Kaushal vs. Naz Foundation, overturned the decision of the Delhi High Court and held that Section 377 doesn’t violate Articles 14, 15 and 21 of the Constitution. A conservative bench comprising of Justice G.S Singhvi and S.J Mukhopadyay observed that “A miniscule fraction of the country’s population constitute lesbians, gays, bisexuals and transgenders and that over the last 150 years, fewer than 200 persons had been prosecuted under Section 377, concluding from this that ‘this cannot be made sound basis for declaring that Section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution”. That day, Suresh Kumar Kaushal who runs Tarumaditya Astrological Centre in Delhi, emerged the victor. When asked whether he believes homosexuality is unnatural, Mr. Kaushal replied “Absolutely. It is simply unnatural. How can a homosexual couple become parent?” The ilks of Suresh Kumar Kaushal; the so called defenders of Hindu culture subscribe to the same Victorian ideals of sex; it is strictly for procreation and not for recreation. After the regressive Kaushal judgement, there was an exodus of lesbian and gay couples from India fearing persecution. They started applying for asylum in countries where homosexuality is decriminalized.
Fast forward to 2017, Supreme Court’s constitutional bench in the case of Justice J.S Puttaswamy vs. Union of India unanimously held that privacy is a fundamental right. Judges in this case highlighted the logical and legal fallacies in the 2013 Koushal judgement. Puttaswamy judgement expressly stated that “Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted”. A curative petition was filed against the Kaushal judgement which recriminalized consensual sexual activities of the same sex. Petitioners including a group of present and former students of IITs, celebrities, NGOs and other civil rights activists challenged the constitutionality of Section 377 stating that their rights to sexuality, choice of sexual partner, life, privacy, dignity and equality which are guaranteed under Part III -Fundamental Rights of the Constitution, have been violated by the section 377, IPC.
And we are now at the climax of this long-standing legal dispute and the battle lines have been drawn. On the one side we have the likes of Suresh Kumar Koushal, Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries representing the religious fundamentalist groups of all colours. They have buried their differences and have united in this fight against the LGBT community. Their objective is to protect the so-called ‘Indian culture’ from the perversions of the west; to forbid the acts that they consider are against the ‘order of the nature’. And on the opposite side we have a group of civil rights activists, NGOs and people from the queer community who argue that consensual sexual activities between two adults of the same sex should not be regulated by law, that their choice of sexual partners is no business of the state to regulate.
Section 377 which was modelled on the basis of medieval English Buggery Act, 1553 is now facing a tough test in the apex court of India. The case is before a five-judge constitutional bench headed by the Chief Justice of India and the hearing had already started by July 10, 2018. After four long days of arguments and counter arguments, on 17 July, 2018 the Supreme Court concluded the hearing and has reserved the judgement. During the hearing, the bench noted that Section 377 violates individual choice and sexual orientation. “What constitutes ‘against the order of the nature’ for the purpose of Section 377 is not a constant phenomenon, like societal morality it also changes from age to age. What is natural to one may not be natural to others”. And the question, “What is order of nature?” from Justice Rohinton Nariman is an indicator as to which way the Supreme Court may go.
So the queer community of India can be optimistic, they may even start preparing for celebrations. But when you celebrate the ultimate victory on your big day, make sure that you pay Mr. Suresh Kumar Koushal a visit and make his day.