EVOLUTION,CLASS AND POLITICS OF

HOMOSEXUALS IN INDIA

*PRE-COLONIAL ERA

The Homosexual community has a long recorded history in Ancient India due to
the prevalence of tolerant religions and cultures in the region with a turbulent
period following European colonialism introducing homophobic and
transphobic laws criminalising homosexuality.Hinduism provides a wide
breadth of literary and artistic sources showing homosexual life in Ancient
India. Hinduism does not have explicit morals condemning homosexuality nor
transsexuality, and has taken various positions on the topic, ranging from
containing positive descriptions of homosexual characters, acts and themes in
its texts to being neutral or antagonistic towards it. The concept of sexual
minorities was widely known in the prevailing Hindu culture by the time
Gautama Buddha founded his philosophies and homosexuality was also
thought to be viewed positively in Buddhism.

The Kama Sutra is an ancient text dealing with kama or desire (of all
kinds), which in Hindu thought is one of the four normative and spiritual goals
of life. The Kama Sutra is the earliest extant and most important work in the
Kama Shastra tradition of Sanskrit literature. It was compiled by the
philosopher Vatsyayana around the 4th century, from earlier texts, and describes
homosexual practices in several places, as well as a range of sex/gender 'types'.
The author acknowledges that these relations also involve love and a bond of
trust.The author describes techniques by which masculine and feminine types of
the third sex (tritiya-prakriti), as well as women, perform fellatio.The Second
Part, Ninth Chapter of Kama Sutra specifically describes two kinds of men that
we would recognize today as masculine- and feminine-type homosexuals but
which are mentioned in older, Victorian British translations as simply
"eunuchs.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

The Arthashastra, a 2nd century BCE Indian treatise on statecraft, mentions a

wide variety of sexual practices which, whether performed with a man or
woman, were sought to be punished with the lowest grade of fine. While
homosexual intercourse was not sanctioned, it was treated as a very minor
offence, and several kinds of heterosexual intercourse were punished more
severely.Sex between non-virgin women incurred a small fine, while
homosexual intercourse between men could be made up for merely with a bath
with one's clothes on, and a penance of "eating the five products of the cow and
keeping a one-night fast" – the penance being a replacement of the traditional
concept of homosexual intercourse resulting in a loss of caste.A large number of
erotic artwork homosexuality can be found on numerous temples throughout
India, including Khajuraho temple sculptures built in the 700s, and the Sun
temple in Konark built in 1200s.A Dutch traveler in Mughal Empire wrote that
male homosexual activity “is not solely universal in practice among
them,however extends to a beastly communication with brutes, and above all
with sheep.

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. The Fatawa-e-Alamgiri of the Mughal Empire mandated a common
set of punishments for homosexuality, which could include 50 lashes for a
slave, 100 for a free infidel, or death by stoning for a Muslim.While pederasty
was often considered as "pure love" and prevalent among those from Central
Asia, in India, however, this wasn't as rife. For example, the governor of
Burhanpur was murdered by a boy servant with whom he tried to be intimate
with Muslim Urdu poetry of the era, sometimes expressing homoerotic
viewpoints reminiscent of romances, but these were not explicitly homosexual
in nature.

*COLONIAL ERA

Homosexuality was prohibited for much of the existence of the Portuguese

Empire. With the judicial records of prosecutions by both the Portuguese
Crown, and Catholic Goa Inquisition, dating from the early 16th century. In
1528, a muslim man being noted as one of the first condemned to be burnt,
made into dust, his goods confiscated for the Crown and his descendants
defamed, for the crime.

The British Rule in India prohibited homosexual relations under Section 377 of
IPC that got in into force in 1861. It absolutely was equally instituted
throughout most of land British Empire because of the Christian spiritual beliefs
of British colonial governments.The British Raj, in directly governed British
territories,replaced the criminal offences and punishments set out in the Mughal
Fatawa 'Alamgiri, with those of the 1862 Indian Penal Code, section Section
377 covering homosexuality.The law stated: "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 the section."The law was drafted by
Thomas Babington Macaulay, who based it on anti-sodomy laws that already
existed in Britain. The term "order of the nature" was never defined, hence
considering its vagueness, the law could apply to virtually any sexual act
considered against this order by the British Judiciary, which included all
penetrative sexual acts, except for vaginal penetration by a man.There are not
many cases that were tried under this law, though, as there were only exist 5
recorded cases that were tried under Section 377 India till 1920.The law had a
larger impact on social values than legal ones.The anti-sodomy law in Britain
and, in turn, India, was inspired by the 'purity campaign', an ideology that aimed
at repressing sexual conduct in British society. This campaign also changed the
perception and beliefs about sexualities in European society.

*MODERN INDIA

In India initially a gay magazine ‘Bombay Dost’11 within the late 1980’s and
also the beginning of a lesbian collective in Old Delhi known as ‘Sakhi ,
lesbian, gay and bisexual problems were 1st articulated in an exceedingly public
forum. Since this, the homophile minority movement has been enlarged in
India. It’s solely within the final decade of the twentieth century that the gay/
lesbian/ movement delivered to the fore the rights of those discriminated against
due to their gender.
In 1977, Shakuntala Devi printed the primary study of sex in India. While
convictions under Section 377 were rare, with no convictions in the least for
homosexual intercourse within the twenty years to 2009, Human Right Watch
have reported that the law was used to harass HIV/AIDS prevention activists,
also sex employees/workers, men who have intercourse with men, and different
homophile groups.The Friendship Walk is the first and oldest pride march in
India and South Asia.This was first organised on 2 July 1999 in the city of
Kolkata. During this time period, gay rights activists in India had started
demanding that political leaders include gay rights as a part of their election
campaigns, but these demands were ignored. So, in order to make a political
statement, Owais Khan first proposed the idea of the friendship walk.This idea
was circulated among the public and received mixed reactions until the walk
was finally organized.The pride march was joined by 15 people from all across
the country, who wore custom-designed, bright yellow T-shirts with a graphic
of footsteps and a motto that read 'Walk on the rainbow'.The participants of the
march further divided themselves into two groups, one of which continued the
walk towards North Kolkata and the other one towards South Kolkata.

When the AIDS Bedhbhav Virodhi Andolan (ABVA) organised a public

demonstration against police harassment of gay people in 1992, it was the first
collective and public response to the various injustices perpetrated on queer
people. This is India's first documented gay rights protest. The subject of both
opposition and demand for rights became visible when secretive and silent
same-sex interaction became visible. It also successfully provided an
explanatory framework as early as 1991, which was then picked up and
elaborated on by queer activism in the following years.14 The ABVA protest
against police harassment in 1992 was not the last, and there would be many
more over the next two decades. The willingness to respond to violations had
become a defining feature of queer activism, attracting national and even
international attention. Several local campaigns against police harassment and
violence (like the ABVA protest in 1992) were launched in various parts of
nation in the beginning of 21st century.
*2010 TO PRESENT

After 2010,there has been a tremendous increase in the number of cases before
various state High Courts and Supreme Court of India seeking the recognition
and legality of same sex relationships and same sex marriages.By April 2014,
the month of the upcoming election, at least three major political parties - the
Aam Aadmi Party, the Congress and the Communist Party of India (Marxist) -
had included support for decriminalisation of homosexual relations in their
election manifestos,In July 2014 first book on "Gender queer" in Tamil and first
Tamil book on LGBTQIA was from Srishti Madurai was released by BJP's state
general secretary, Vanathi Srinivasan, at the 6th Hindu spiritual service
foundation's sixth service fair, Chennai.In June 2016, a dating platform called
Amour Queer Dating was launched in India, for LGBTIQ people seeking long
term companions.In May 2017 the first Bhopal Pride March was conducted,
gathering the participation of around 200 members. On 6 September 2018 the
Supreme Court of India invalidated part of Section 377 of the Indian Penal
Code making homosexuality legal in India.In striking down the colonial-era law
that made gay sex punishable by up to 10 years in prison, one judge said the
landmark decision would "pave the way for a better future" On November
24,,2022 A two-judge Bench headed by CJI D.Y. Chandrachud transfers to
itself petitions regarding same-sex marriages from various High Courts.It CJI
has also demanded the Central Government to file it's reply for the plea
regarding the inclusion of provision of 'same sex marriages' under the
SMA,1954.As per March 12,2023 (Reuters) report - The Indian government
opposes recognising same-sex marriages, it said in a filing to the Supreme Court
on Sunday, urging the court to reject challenges to the current legal framework
lodged by LGBTQ+ couples.

The Ministry of Law believes that while there may be various forms of
relationships in society, the legal recognition of marriage is for heterosexual
relationships and the state has a legitimate interest in maintaining this,
according to the filing seen by Reuters, which has not been made public.In the
case of Thangjam Santa Singh & Santa Khurai vs Union of India & Ors (2021)
a public interest litigation was filed by a member of the Transgender
community-Thangjam Santa Singh, which filed assails against the "Guideline
on Blood Donor Selection and Blood Donor Referral, 2017" issued by the
National Blood Transfusion Council and NACO in October 2017. Clauses 12
and 51 of the said guidelines consider transgender persons, gay men and female
sex workers to be a high-risk HIV/AIDS category and prohibit them from
donating blood.As a response to the case,recently in march 2023,the central
government has defended its decision to bar gay and transgender people from
donating blood in the country, citing scientific evidences.The Supreme Court in
NALSA v Union of India, (2014) and Navtej Singh Johar v Union of India,
(2018) held that discrimination on the ground of sex under Article 15 would
include discrimination on the basis of gender identity and sexual orientation.
Thus, the exclusion of transgender persons, those engaged in same-sex
relationships and female sex workers without any examination of the actual risk
of HIV,amounts to a clear form of discrimination against them.