As gay Americans we are aware of the long and tortuous years of legal wrangling that have brought us a measure of equality before the law. Remember the Supreme Court ruling in 2003, Lawrence v. Texas? Gay sex was illegal in various states under the heading of “sodomy”. The police could legally burst into your home and arrest you in the act! Hard to believe but it was just 15 years ago that the court ruled sodomy laws were unconstitutional, and that gay citizens also had a right to privacy.
India’s gay community has been in a similarly difficult legal struggle but the road to equality in India has a history spanning hundreds, even thousands of years! Incredibly, there is a long history of tolerance for same-sex relations in Hinduism. You may have visited ancient temple complexes such as Khajuraho in Madhya Pradesh and seen for yourself the erotic figures depicting every variation of physical pleasure. Acceptance was not universal, but even religious texts contained descriptions of deities with fluid genders. Hindu scripture and practice did not in general exhibit a moral objection to homosexual love.
In the 16th century India was ruled by Mughal emperors. Their stunning palaces and wondrous architectural gems such as the Taj Mahal are must-see items on most bucket lists. But imagine what it would have been like to be a gay man in that time. It seems there was an effort to codify preexisting laws into the Fatawa-e-Alamgiri. Unlawful intercourse could get you 50 lashes for a slave, 100 for a free infidel, or death by stoning for a Muslim! The truly crazy thing is that homosexuality was rampant in Moghul court life, but these laws did not seem to apply to the ruling class.
Repression shifted into high gear with the arrival of the British Raj. In 1861 anal and oral sex for both homosexuals and heterosexuals was outlawed in Section 377 of the Indian Penal (snicker) Code. In the immortal words of the great novelist E. M. Forster, “England has always been disinclined to accept human nature.” The laws imposed on India regarding sex were just a small part of British domination but over time those ideas remained fixed in the conservative fabric of Indian law. Victorian morality imprinted itself on India and has persisted even to the present day.
In 1986 the first case of HIV was diagnosed in India. As in the United States and other countries the disastrous effects of the epidemic spawned a political movement. Gay activists organized, and legal cases came before the courts. In 2003 the Indian Government said that legalizing homosexuality would “open the floodgates of delinquent behavior.” (Thinking back on the year I came out in Chicago, this quote is not entirely without merit.) In 2009 a lower court decided that it was time to set aside the Section 377 sex laws dating back to the Raj. A steady stream of decisions by the government and the courts left the matter unresolved, until January of 2018 when the Supreme Court agreed to judge the validity of the section 377 laws once and for all.
On the 6th of September, just 2 weeks ago, there was a verdict. The Court unanimously ruled that Section 377 is unconstitutional as it infringes on the fundamental rights of autonomy, intimacy and identity, thus legalizing homosexuality in India!
At last, legal status! But not so fast. Gay marriage is not yet legal, and it must be understood that the progressive decision of the Supreme Court does not automatically guarantee equality or freedom from discrimination. In some cases, an individual may now have legal grounds to bring a law suit to defend themselves but there is no guarantee of success. The conservative morality that is the legacy of the Raj will take time to reverse. Families will continue to pressure their children to comply with traditional marriage. LGBT young people who live in rural areas will have to continue to walk a fine line hiding their feelings and identities, sometimes for the sake of their very lives. Fundamentalist religious communities – whether Muslim, Hindu, Buddhist, Sikh or Christian – will be slow to accept these ideas regardless of the court’s decision.
It is interesting that all over the world there is a simultaneous growing movement to extend rights to LGBT citizens and to face up to the discrimination and ignorant ideas of the past. It is fascinating to watch these changes take place in a country as ancient and diverse as India, and it is easy to have admiration and a feeling of solidarity with all LGBT people in India who are facing these daunting legal and societal issues with courage, creativity and intelligence.
Dan Gregory has worked behind the scenes researching locations for Toto Tours since 1992. Toto Tours visits new regions in India every year. See our upcoming itineraries here:
Khajuraho Erotic Art