Explained | How We Got Here: A Brief History of LGBT Rights and Laws in India

From ancient India to the 21st Century, the LGBT community has found representation, faced oppression in many forms.

6 September 2022 marks four years since the Supreme Court of India scrapped the law that criminalised same-sex relationships. On the historic date, a five-judge bench read down parts of Section 377 of the Indian Penal Code (IPC) and allowed LGBT individuals to engage in consensual intercourse without fear of imprisonment.

But this wasn't always the case. Just 30 years before this, the same India that now allows people to take lovers of the same sex, was an India that persecuted openly gay people and an India where if you came out as gay or queer, you could lose your job.

So, how did the country make this transition? What changed from 1861 to 2018? A lot more than can be covered in 1,000 words. But today, on the anniversary of India's own LGBT rights day, we walk you through a brief history of LGBT laws in India.

In Ancient & Medieval India

Before the imposition of colonial-era laws under British rule, India had its own texts, which detailed the practice of homosexuality and same-sex intercourse.

As far back as 400 BC, the Kama Sutra, said to be written by Indian philosopher Vatsyayana, describes homosexual acts in detail, including explicit instructions on how to perform such acts. It describes men who have sex with men, women who have sex with women, as well as bisexuals, transgender persons, and intersex persons.

Meanwhile, in South India, the oldest of Tamil texts, Tamil Sangam literature from 3 BC to 4 AD, included descriptions of man-on-man relationships and relationships between transgender people.

Other ancient texts like the Arthashastra, Nardasmriti, and Sushruta Samhita also mention different types of same-sex relationships. In Indian mythology, there are tales of Vishnu who turned himself into Mohini to seduce demons and sages.

But as much as some myths and ancient texts detailed, and even instructed, on LGBT relationships, other texts like the Manusmriti derided the same.

The Manusmriti, for example, detailed punishments like shaving the head of a woman or cutting off her fingers, as punishment for engaging in lesbian intercourse.

Apart from the texts, the walls of ancient architecture are the second source of information about ancient India's thoughts on sexuality, wrote author and mythologist Devdutt Pattanaik in a 2008 article titled 'Did Homosexuality exist in ancient India?'.

For example, the temples of Khajuraho, depict same-sex relationships and bisexual relationships, as well as other acts of what was till a while ago termed "unnatural intercourse."

In India during Mughal rule, "unnatural intercourse" was prohibited under the Fatawa' Alamgiri, a unified code of guidance based on Sharia law. It included punishments such as lashings for engaging in homosexual intercourse.

Pre-Independence India

The first codified legislation on homosexuality in India was Section 377 of the IPC. From 1861 to 2018, for nearly 157 years, being a queer person in India could land you in jail for 10 years for the "unnatural offence" of having "carnal intercourse against the order of nature."

The law that enabled this was drafted by Lord Thomas Babington Macaulay, as Section 377 of the IPC, when India was under colonial rule. The law allowed the judiciary to "punish" LGBT individuals with up to 10 years in jail as well as a fine.

The text of Section 377 of the IPC remained deliberately vague to be applied on a case-by-case basis to any "carnal relationships against the natural order". This extends to gay, lesbian, bisexual, and trans relationships, as well as acts like bestiality and sodomy.

Pattanaik added that Section 377 and other homosexuality laws in India were "products of minds that were deeply influenced by the 'sex is sin' stance of the Christian Bible."

Even in the years just prior to Independence in 1947, being outspoken about "unnatural sexuality" was often met with harsh consequences under the law.

For example, Indian Urdu novelist Ismat Chughtai was charged for obscenity after she released her work Lihaaf, a story about a neglected wife and lesbian love. Lihaaf would go on to become one of Chughtai's most famous works, even inspiring the 1996 movie Fire.

Post-Independence India's Laws

After Independence and Partition, both India and Pakistan adopted their respective versions of the original IPC as the Indian Penal Code and the Pakistan Penal Code.

Section 377 would continue to stay in effect for over 60 years with no successful contention. Till 2001, when the Naz Foundation, an NGO that works with HIV+ patients and sexual health, filed a Public Interest Litigation (PIL) challenging the clause as violative of the fundamental right against discrimination enshrined in the Constitution of India.

In the years leading to this, members of the LGBT community faced persecution and ostracism in many forms.

For example, in 1987, police officers Leela and Urmila from Madhya Pradesh's Bhopal were sacked as law enforcement authorities after getting "married" and coming out as a lesbian couple. In 1990-91, the decline of India's economy and mounting debt led to liberalisation and globalisation. This ushered in many Western influences, including the presence of western NGOs, many which sought equal rights for LGBT individuals. Simultaneously, the rise of HIV AIDS, largely in the gay community, demanded a better outreach programme to limit the spread of the disease.

These two together would lay the groundwork for the legal changes of the next 20 years.

The Dawn of a New Millennium for LGBT Rights

In 2009, the Delhi High Court, in Naz Foundation vs NCT of Delhi, ruled that Section 377, which criminalised same-sex relationships, was unconstitutional, and struck the law down, decriminalising homosexuality in India for the first time.

The HC held that penalising such actions violated the right to privacy and personal liberty under Article 21 of the Constitution. Doing so was also found to fall foul of the right to equal treatment (Article 14) and the prohibition of discrimination (Article 15).

The verdict, which was hailed as a victory for LGBT rights, was challenged by several anti-gay rights groups on religious, political, and social grounds, who claimed that the right to privacy did not include the right to commit an offence, and that decriminalising homosexuality would affect the institution of marriage.

In 2013, in Suresh Koushal and Anr vs Naz Foundation and Others, the SC reversed the Delhi HC's decision to decriminalise homosexuality, stating that "it was up to the Centre to legislate on the issue."

This decision would lead to protests across the country, with the Aam Aadmi Party, the Indian National Congress, and the Communist Party of India (Marxist), making the decriminalisation of homosexuality a part of their election manifesto in the 2014 general Assembly elections.

Jump to 2018, and a five-judge SC bench, which included the then-Chief Justice Dipak Misra, would pass a historic order. The verdict came in a petition by Indian choreographer Navtej Singh Johar and 11 others challenging the constitutional validity of Section 377.

On 6 September 2018, the SC read down the provisions of the clause inasmuch as they pertain to consensual same-sex relationships.

The change in law was welcomed by the LGBT community, and hailed as a victory for LGBT and human rights.

In his verdict, the then Chief Justice Dipak Misra wrote:

"Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society."

The day was cause for celebration for thousands, if not lakhs of Indians. However, while the scrapping of the archaic law has been welcomed by the LGBT community, activists say that more needs to still be done to actively support the LGBT community. This includes better protections for transgender persons, and civil union or marriage rights for same-sex couples.