The Indian society after gaining independence followed the same roles ascribed to a sex (dependent upon the biologically given reproductive organ) as the western world accorded to a male and a female. These roles were very specific and stringent, to be followed without any scope for divergence. These roles were majorly prevalent in the Indian subcontinent with certain exceptions that the British could not change by bringing in their patriarchal heterosexual laws.
Men at the top of the household had all the financial and social amenities available to him, as he became the breadwinner for the family and he would only marry a woman who would be his wife and later who along with the children would be dependent upon him. Whereas, women were confined to households without much exposure to the outside world, only taking care of the needs of the family and being dependent/ obedient towards her husband. This was the modern heterosexual bond that was fixed for the society. This narrow concept of household-housewife was portrayed as natural and normal, binding people into heterosexual bonds that were made compulsory. This is how the males and females of the society were gendered in the process of spreading heteronormativity. It was shown as the ‘necessity’ of the society for couples to be of certain sex and to act in a certain way.
Gender is a social construction of certain acts or behavioral aspects that certain sex performs or is expected to perform by the society around them. Gender became a pivotal factor in bending modern society towards heteronormativity. They lost touch and desire of homo-social bonds that existed in the Indian society were changed into becoming more west-inspired global heterosexual bonds. This led to the gendering down of society into a narrow path. Post-colonial hangover could be the reason why the people did not even probe into the earlier forms of bonds/ relations that people created and their benefits. The history of non- heteronormativity was looked down upon as people settled with the neo-liberal vision of bonding institutions in the society, which only revolved around a man and a woman. The neo-liberal style of relations was looked at from a progressive lens, giving the illusion of being more liberal and fuller of ‘choice’.
This article examines the overshadowed history of Indian homosexuality and the plight of the section of the homosexual population of India even in this 21st Century. This article also covers how the colonial provision of Section 377 was repugnant to the progressive society India aspires for and why it was voted out by the Supreme Court. The article also briefly touches on the LGBTQ movement and its history.
It also analyses the history of homosexuality and rights of homosexuals in the light of landmark judgment of the Hon’ble Supreme Court in Navtej Singh Johar case rendering unconstitutional Section 377 of the IPC. The article also provides encapsulate analysis of above landmark judgment in the light of vast literature analysis by the Court and the fundamental rights including dignity aspects of individuals.
Degree of Acceptance of Homosexuality in Early Times in Indian History
Trends in Ancient, Medieval India and the Mughal Empire
During the Vedic period, bonds among people were more fluid and dynamic. There was no claim on a single way of life or forming relationships. No particular bond was tabooed as the homosexuals and the ‘third gender’ (transgender, the accurate terminology to be used) were far more acceptable in society than they are now in the 21st century India.
The ancient test ‘Kama Sutra’ provides us with striking examples of gender and sexual fluidity, where women or men, masculine or feminine, were not discriminated against in the society on the basis of their orientation. Through the book ‘Kama Sutra,’ we get to know about homosexual ties that were created between women by themselves to raise children together. These women were called ‘swarinis.’ There is also the reference of men who were impotent when it came to performing sexual activities with women. The reason accorded to their impotence was their sexual attraction towards men. Such homosexual men were known as ‘kibals.’ They were also recognized as men performing certain inferior sexual acts such as oral sex. There is no mention of society during that period rejecting these individuals; in fact, they were widely a part of the normal society. The homosexual men were also known to marry each other.
One of the biggest structures created in the 12th century India, which depicts on its wall’s homosexual behavior, cannot go unnoticed in proving the acceptance of homosexuality. The engraving on the wall of the Khajuraho Temple in Madhya Pradesh shows the customariness attached to the sexual behavior during that time. One can clearly consider the fact that there was no shame attached to the homosexual acts being performed, whether in private or public.
In the Rig Veda, there is a reference of two gods, Varun and Mitra, who were famously known as ‘two halves of a full moon,’ they were one of the first same-sex couples known to have fathered children of their own. In such a gender-fluid society, the concepts of ‘love’ and ‘marriage’ were also very dynamic. Gender fluid societies have more stability to offer to relationships and child-rearing than a heterosexual one. There would barely be any stigmatization of bonds that might prove to be very beneficial, such as two women adopting an abandoned child. That child would not only get acceptance in the normal society but also the right amount of care and love from parents, even though both would be females. As there is no gender-specific role, it is no longer mandatory to have a man as a father. Comparing this situation to a heterosexual society, where a fatherless child would leave the child in mental, emotional as well as economic stress. As the heterosexual society has strictly divided roles and therefore when one of the role-players is absent, another one cannot fulfill those roles as the society doesn’t allow it, leaving many people suffering without any cause.
The ancient and medieval Indian society was a much better example of stronger and well-connected social bonds than the neo-liberal society after the British rule. The ancient and medieval Indian society can in real terms be called a “free society” with the open-mindedness that people had.
This dynamic system was well recognized by the Mughals as well. It all began from the time Babur defeated the Sultan of Delhi and started his conquest to take over India, the acceptance of gender variation and eroticism, that was present in the Hindu society, was visible. Artwork from the time period 1500-1800 reflects the effort of homogenization between Islamic and Vedic religion. Artwork such as sculptures, paintings, and handwritten erotic poems on homosexuals was prevalent during the period. Efforts of translating Sanskrit texts in Persian to understand the different ways of life by the Mughals were also proof of their interest and celebration of multi-gendered Hindu societies. Another example is Baburnama, which mentions Babur’s infatuation with a young boy. It was also a general practice for Mughal emperors to keep a harem full of young beautiful boys as well. In spite of the Quran stating that sexual relations between two men are punishable, but it only accords a low level of punishment for such acts and there is an abundance of homoerotic literature and bonds being formed in the Mughal era. Till this point in time as well, homosexuality was not considered as a ‘sin’ at least. Homosexual acts being prohibited has a different degree of gravity attached to it than calling such acts or a sexual orientation a sinful act/orientation that goes against the divine law.
Victorian Way of Life
Just like the rest of the world, India also follows, since the colonial era, a particular type of masculinity. It might not exactly be similar to the earlier times, but the core features still tag along with the ideal type. Masculinity in India was set according to the Victorian standards during the colonial era. Victorian masculinity was defined by a strict demarcation between both the sexes, also through an “unmanning” of racial and ethnic minorities, within and outside Europe. This was embodied in the appearance of an Englishman, who was tall, clean-cut, and strong with the Victorian trope of chivalry. This definition also included ‘what not to be included’ like deficient people who were narrow-chested, excitable, and inefficient. These are all the qualities vaguely attached to women, Jews, lower classes, and colored people. Chandrima Chakraborty believes that this model of masculinity is not merely ‘ideal’ but something that was again ‘natural’ to the elite races.
The Hindu men reacted to this by bringing in reforms within themselves and their religion to reach the masculine ideal regulated by Victorian standards. Over the years this hasn’t changed much, men in India still feel the need to look rough, taller and stronger, not only among themselves but also compared to women. So, it was the Victorian emphasis on a single-type of masculine behavior that brought the concepts such as discrimination and shame to people who did not follow it (gay men), who did not fall within the framework (feminine men) set by them and those who were not worthy because they were not men (I am talking about being a woman).
The Britishers mostly feared the contamination of their armies that held the power of coercion, if they allow homosexual Indian men into the army. They perceived that performance of homosexual acts would make their army weak.
This biggest fear came out in open in the field of criminal law in the form of legal provision of section 377 of IPC. The main object of the introduction of section 377 was to put a stop on sodomy, create fear, and punish the people who took part in such acts. To focus on the intention that the drafters had while creating such a law, it is very important to focus on the wording of the section.
Section 377 of the IPC states: “Unnatural offenses- 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.
“Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Firstly, just by reading the first line which talks about ‘voluntary’ ‘carnal intercourse’, it includes the criteria of intention to indulge in a sexual act and penetration, that are both necessary actions that need to take place in order to come under the ambit of this law. But when we focus on the first word of the section ‘Whoever’ it is not gendered specific, so it can be inferred that this section applied to both men and women.
However, if we move forward, it states carnal intercourse needs to be done for which, as mentioned in the explanation, penetration is sufficient to check the box. So, categorizing acts that include penetration are anus sex (coitus per annum) and vaginal sex (which is supposedly the ‘natural’ way of procreation). But the natural way of procreation does not come within the ambit of this law, what actually it tries to stop is any sexual act that does not lead to procreation. Any sexual act that does not lead to procreation was against the order of nature according to the Christian mentality. Further, not mentioning what all constitutes penetration; we are left to believe that it includes the penetration done by a penis and no other subject. In fact, lesbian sex does not tick the box under this section as no penetration happens during a sexual act between two women without a real penis. So, leaving us with acts that include a penis, intention, and penetration that does not result in procreation. Therefore, even though it is said that section 377 only criminalizes acts that are non-procreative and homosexual as such, it is only true to an extent as it does target non-procreation intercourse but only which happens between two men. Hence, de-facto it has criminalized homosexuality within men and de-jure only the acts that are not for procreation.
The language of the section serves as a veil that covers the real intent of the drafters. Section 377 was drafted to target the minority groups of different sexual orientations that the British considered sinful. The Britishers ingrained in the society that the act of ‘sodomy’ is the biggest sin and it is shameful. They also portrayed men indulging in such acts as dirty people who were full of harmful diseases. All of this was done based on the assumption of the failing of their army men and thus losing greater control over the Indian subcontinent. Such Victorian ideals of shame and discrimination are now considered to be native ideologies of India overshadowing its dynamic past.
Indian LGBTQIA+ Movement
A Brief History and the Timeline For the Movement
It is interesting to note that internationally the month of June is celebrated as the pride month. The word ‘Pride’ symbolizes the self-respect that people of the LGBTQIA+ community have in portraying their different gender/sexual orientation that is considered a taboo or shameful. Their symbol ‘A Rainbow’ is to show others the beauty of being different, of being free and yet important. India has, since independence, a fair share of pride movements in the country.
On August 11, 1992, the first known protest in the history of gay rights was observed. In 1999, the people of Kolkata showed great courage and hosted India’s first Gay Pride Parade, in order to come out in the world and display freely the sexual orientations that the rest of the people consider to be deviant. The parade had only 15 attendees, and it was named Calcutta Rainbow Pride.
Relevant Case Laws Leading to the Unconstitutionality of Section 377 of the IPC
In 2009, the landmark judgment of the Hon’ble Delhi High Court in Naz Foundation v. Govt. of NCT and Ors held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution. But later in Suresh Kumar Koushal and ors v NAZ Foundation and Ors case in 2013, the Hon’ble Supreme Court overturned the Delhi High Court’s judgment. However, with continued efforts to decriminalize the obsolete law, MP Shashi Tharoor introduced a bill to decriminalize homosexuality. Finally in August 2017, the Hon’ble Supreme Court in the landmark judgment of K.S Puttuswamy, upheld the right to privacy as a fundamental right under article 21 of the Constitution of India. This judgment provided a legal ground for decriminalizing section 377 as homosexuality is a personal sexual orientation. A person’s sexual orientation is a private matter and need not be dragged into the public for becoming the basis of discrimination. In order to restore a private matter into the privacy of someone’s’ home, the Hon’ble Supreme Court on 6 September 2018, in Navtej Singh Johar case, ruled unanimously that Section 377 was unconstitutional “in so far as it criminalizes consensual sexual conduct between adults of the same-sex”.
Despite there being such a great legal advancement to the cause of LGBTQIA+ community, the attitudes relating to homosexuality among the general public could not be seen as changing. The post-colonial, neo-religious and uneducated leader’s attitudes relating to the community has shown no change, which re-instates the stereotype and stigma attached to homosexuality in the larger public.
Navtej Singh Johar and Ors. V Union of India- Analysis in light of Progressive Literature
This judgment by the Indian Supreme Court has sparked joy in hundreds of thousands of people’s hearts and lives. Not only because it was abolishing an obsolete, unjustified and an unconstitutional law made in the colonial era but also about the way literature was used in this judgment to beautifully shape the course of delivering justice which was long overdue.
The judgment, Navtej Singh Johar & Ors. v Union of India through Secretary Ministry of Law and Justice, is majorly about correcting the past mistakes made in the case of Suresh Kumar Koushal case, in which constitutionality of section 377 of the Indian Penal Code (hereinafter IPC) was upheld by the 2 (two) judge bench of the Supreme Court and which overturned the Delhi High Court’s judgment of the Naz Foundation case which held section 377 to be unconstitutional. With the back and forth decisions made on the constitutionality of section 377, it had to be finally conclusively decided in order to be a part of the progressive world, changing dynamics of law and according to new societal morals and indeed to get over the colonial hangover.
Convergence of Literature and Individuality Aspects of Homosexuals
A judgment is a very clear-cut example of the interconnection that law has with literature. It should be noted closely that why judges, in this case, have used literature and on top of that why have they used different pieces of literature which has the same intention everywhere. It should also be brought to the notice the choice of judges in specific authors to accompany/attach a deep meaning to use that author’s particular literary work. The authors that feature in this judgment is; Johann Wolfgang Von Goethe (hereafter Goethe), Arthur Schopenhauer, (a very surprising selection) John Stuart Mill, Shakespeare, Leonard Cohen and the most importantly Oscar Wilde.
The judgment starts with three words to bring out the meaning that whole judgment has a reason behind it which in many ways was expressed by people from earlier times as well. Those three words are ‘not for nothing’ accompanied with a reference to a very famous line said by Goethe, “I am what I am, so take me as I am.” Right after Goethe, a reference has been made to Arthur Schopenhauer’s famous quote “No one can escape from their individuality” which is then furthered by John Stuart Mill’s quote:-
“―But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.”
So, from the very beginning of the judgment, the judges have introduced many of the authors with their work which very directly formed a connection one after another. In the opening, the storyline of the judgment has been set very carefully yet straightforwardly by the judges. The focus is all on a person’s individuality and their impulses and preferences, which no longer need to be hidden from the world. But in fact, it is a threat to human nature, of people, who do not recognize their own individuality. Individuality is like one’s own social signature that should not be taken away from people and also give people an ample amount of freedom to freely express their individuality.
The wording in the judgment, that surrounds the use of literature itself, is very well-constructed, almost the first few pages of the judgment are like a work of literature itself. It has a natural flow and a certain beauty to it. For example- ‘One defines oneself’ and ‘Denial of self-expression is inviting death.’ The usage of words like ‘self-determination’ and ‘spectrum’ in sentences that only refer to the type of approach this judgment has is also very well-thought of, as these words have a close bearing to the LGBTQ+ movement and people. It has now become an essential part of their vocabulary. Thus, it shows the intention of judges specifically using such words.
After this introduction that helped establish the importance of individuality in a person’s life, the judgment moves on to using a frequently used line from Shakespeare’s play “―What’s in a name? That which we call a rose by any other name would smell as sweet” which conveys the thought that it does not matter what the name may imply which is given to a person or any object, but what matters is the characteristics that person or object holds. The identity of a person does not come from their names but their essential qualities and innate characteristics. Yes, a name does help with the association but it never helps to do complete justice in explaining nature. Hence, the name ‘rose’ given to the plant does not make it rose, but it is the flower’s color, fragrance, structure, and use that makes a plant rose. So, it does not matter how and what we associate a name with, it is always important to know the innate identity which never changes by changing names. Therefore, identity is pivotal to one’s being.
It is also the identity that helps an individual to get constitutional recognition. Constitutional recognition is essential when it comes to individual freedom and access to rights. This, in turn, ensures and protects a person’s dignity. Dignity is a birthright that is guaranteed to all but it comes through the Constitution of India. Identity is equivalent to divinity. Thus, fitting the identity of people within the Constitution becomes a crucial step towards ensuring that the individuality of anyone is intact and people can freely take steps towards finding their own self.
Justice Nariman, while delivering his opinion, uses a line from Lord Alfred Douglas’s Oscar Wilde’s poem Two Loves, for his same-sex lover Oscar Wilde. “The love that dare not speak its name” used to describe homosexual love. It is from 1894, Victorian England. For a long time, all the people who were not so-called “normal” i.e. a homosexual were treated unjustly and there were no laws to protect them as the Constitution never recognized them as having rights. As if they were not deserving of the rights because they had done something and gone against the order of nature.
Thus, considering the recently decided case of declaring section 377 as unconstitutional, the judgment lays down many arguments as to how dignity is a naturally occurring right and for people to enjoy this right they need to realize their individuality which in turn is recognized by the Constitution of India, given the protection of article 21 of the Indian Constitution. The use of literature, especially in this judgment, furthers the intent very powerfully, that homosexuality is not unnatural but something that is so innate to an individual that it is their identity. An identity that can be called different names but its naturalness will not leave.
Law its language is very strict and precise. If drafted well, laws can have one and only one meaning. So, the language of the law is unchanging and rigid. Especially in India, the law is old and non-flexible to new changes. Therefore, for the abolition of section 377, a mixture of law and literature is the best way to present this case, because literature as a language is extremely fluid and dynamic. There are various ways of saying one simple thing in literature. Making it prone to confusion, sometimes. But confusion could also prove to be beneficial in certain circumstances, where people do not directly want to say something, yet through literature can indirectly express the feeling very well. Literary language allows an artist to be themselves. Just like the people on the spectrum and their sexuality are the symbols of fluidity with no rigid boundaries, literature in the form of a language has the same characteristics. Thus, there is no better way or better place of using literature to put across deep thoughts about ‘self’, than, in this judgment.
Among the authors referred to in the judgment, the only exception here was John Stuart Mill. Mill does represent a person who loved liberty and believe it to be provided to every individual (who were not colonized) but Mill did not have a homosexual history. This does not mean that someone’s opinion holds no value if they have no experience. But with the reference and views of Mill, the judgment sought the idea of setting India free from a colonial mindset and hangover. No one can portray or know a colonial mindset better than Mill. Hence, the use of Mill’s quote does not have much meaning to it considering the background but just a plain reading shows that the judgment accords importance to individuality and it can be understood to be at the core of liberty as well. But then the judges do mention through Leonard Cohen’s Song ‘Democracy’–
“It’s coming through a hole in the air, it’s coming from the feel that this ain’t exactly real, or it’s real, but it ain’t exactly there. From the wars against disorder, from the sirens night and day, from the fires of the homeless, from the ashes of the gay: Democracy is coming…”; that Section 377 is the baggage of colonial mind-set that India still has and it is a symbol of thinking that was widespread during the Victorian era but now as the societies and their morals are changing it is time to discard old laws as well, as they are nothing but slowing down the development and growth of the nation.
In a way, the use of literature in judgments also adds a characteristic of American Legal Realism was the judges not only use laws but also emotions and feelings of people by citing literature, which they also believe in. This also shows how they feel about something in life. Hence, the judges’ beliefs also become a part of the judgment.
Therefore, an all-rounding argument is made in this judgment that accepts the unconstitutionality of section 377 as it is against the principles of article 21 of the Indian Constitution.
In a world, where countries are gradually recognizing at an international level with the growing consensus the dignity and individuality a person with a different sexual orientation, other than ‘straight’ “heterosexual”, holds, it is worth all the rights that are inherent to any other human being. India stands in the middle of the oriental and western divide.
India has not clearly recognized such inherent rights of LGBTQIA+ community legally on paper and admitted it to domestic laws, however by the act of decriminalization of Section 377 of the IPC, India has shown it inclination towards providing positive rights to its citizens of different sexual orientations. India has given hope to many for what the future beholds, but India still has a long way to go, as institutional and societal bias against people with different sexual orientation is so inherent due to the western ideologies that are considered to be native to India.
Going back to the roots has not always shown bad results; hence India needs to work towards developing into a nation that is truly as free as it used to be during the ancient and medieval era, in its open-mindedness and acceptance of the ‘other’. India requires a nationwide post-colonial hangover cleanse to free itself from the awful clutches of the West in this area. Society needs to be mature and be more forthcoming in acceptance of everyone irrespective of their orientation to fully realize our founding father’s ultimate objective of the welfare society.
- Osella, Caroline, and Filippo Osella, Men and Masculinities in South India. Anthem Press, 2006. JSTOR
- ld at 2-4.
- ld at 3.
- Sonal Rangnekar & Kabir Duggal, Decriminalisation of Homosexuality in India, 3 Law Rev. Gov’t L.C. 145 (2004).
- ld at 147.
- Sanjana Ray, Indian Culture Does Recognise Homosexuality, Let Us Count the Ways, The Quint, September 11, 2018.
- W. Penrose, Colliding Cultures: Masculinity and Homoeroticism in Mughal and Early Colonial South Asia, 2006. In: O’Donnell K., O’Rourke M. (eds.) Queer Masculinities, 1550–1800. Palgrave Macmillan, London.
- Apoorva Pushkarna, Masculinity in India, Unpublished Gender & Society Research Paper (on file with the O.P Jindal University Library system), April 25, 2018.
- Indian Penal Code 1860, s 377.
- Sonal Rangnekar & Kabir Duggal, Decriminalisation of Homosexuality in India, 3 Law Rev. Gov’t L.C. 145 (2004).
- ld. at 148.
- Moksha Sanghvi, History of the Pride Movement in India, Deccan Herald, June 26, 2019.
- 2010 CriLJ 94.
- AIR 2014 SC 563.
- Justice K.S. Puttuswamy and Ors. V Union of India and Ors. AIR 2017 SC 4161.
- AIR 2018 SC 4321.
- Lewis P. Hinchman, The Idea of Individuality: Origins, Meaning, and Political Significance, The Journal of Politics, vol. 52, no. 3, 1990, pp. 759–781. JSTOR.
Written and submitted by Apoorva Pushkarna during her course of internship at B&B Associates LLP.
Moderated by Shubham Khunteta (Associate)