Queer India

You might not know this, but it is illegal to be gay in India.

While “there is no explicit mention of homosexuality or homophilia in any of the statute books,” in practice Section 377 of the colonial era Indian Penal Code (written in 1860) effectively criminalizes homosexuality by criminalizing gay sex. The Indian government stands by this law, saying

Indian society, by and large, disapproves of homosexuality and justifies it being treated as a criminal offence even when adults indulge in private [BBC]

A recent effort by activist groups to have the law reframed to legalize sex between consenting adults (the law also bans pedophelia and bestiality) failed on technical grounds, with the Delhi High Court saying that third parties have no right to bring such challenges. The Indian Supreme Court is now looking into the matter, but it is unclear what will happen next.

Even though being a lesbian isn’t criminalized by Section 377 (“unnatural acts” are defined by penetration and it is claimed that “Queen Victoria refused to include the lesbianism clause in the law because she could not imagine ‘such a thing existed’“), as with most things desi, it’s still harder to be a woman than a man:

In a largely patriarchal society, lesbians bear the brunt of social ostracisation and the law more than gay men. In many states, lesbians have taken their lives after facing harassment at home and outside.[Many women] …  have been forcibly married off by their parents. When they tell the truth, they are thrown out of their homes by their spouses, parents and relatives.  [BBC]

In one case, the father of a 31 year old teacher kicked her all the way down from the third floor when he learnt of her sexual preference [cite]

Recent years have seen a flowering of GBLT support groups. There are Lesbian support groups like Sappho in Calcutta and OLAVA in Pune and the Aanchal Trust in Bombay; “the eastern West Bengal state alone has some nine gay and lesbian support groups.” One of the Bengali groups claims to have reached out to 5,000 gay men in the 3 years it has been open. There is even a gay pride march in Calcutta. It drew 100 marchers in 2003 and 300 in 2004. But even in big liberal cities, activists say there is alot of homophobia, and alot of work to be done.

Further reading:  Fear and loathing in gay India, the first in a series of articles about Gay life in South Asia on the BBC website.

21 thoughts on “Queer India

  1. Whoa, whoa, back up! Section 377 of the 1860 Indian Penal code with input from QUEEN VICTORIA?! WTF?! What did we get independance for? In almost 60 years India hasn’t written it’s own freakin’ penal code? Are you sure?? Is it just that bit? Do we have any Indian lawyers in the house?

  2. Saheli: I’m very sure. The reason that text above is so messy is because I read a number of sources on the law before writing this post. And no, it’s not just that part of the penal law that remains intact, although you’re right, some lawyers could help in this discussion. (Queen Victoria didn’t care so much about India, that was the UK penal code imported wholesale.)

    Here are some things you can read: The Indian Penal Code The BBC article about the failure of the legal challenge (short) A detailed analysis of the legal challenge by an NGO Hapless and Gay A perspective from India: Homosexuality stands criminalized because of a mid 19th century colonial law

  3. `In one case, the father of a 31 year old teacher kicked her all the way down from the third floor when he learnt of her sexual preference

    Well, I spoke to one of my very close friends who happens to be gay from Bombay just yesterday. He decided to let his dad know of his sexual preference. His dads initial reaction was – “what is that?” Finally his dad decided to take him to the shrink to cure him!

  4. What’s the surprise, I thought it was illegal for a woman and a man to even hold hands in public India . . . oh yeah but raping low caste women is OK.

  5. Ummmm….is this really so surprising? I don’t recall Inida ever being at the forefront of liberalism or rights for the individual. As for Queen Victoria, this is also not so shocking – most of India’s laws are inherited from British India, with most laws either being amended where necessary…but a lot have been left as they were from over a 100 years ago.

  6. Puhlease… The fascist west that is obsessed with square corners is imposing its categories of sexuality (gay, straight, bisexual .. mental, whatever) on me.

    Sexual identity is esentially a fabrication of the west – same sex love existed in India, and like all things in India, it just is. I dont have to define it as an integral part of me or use grandiose terms, or think about how many standard deviations of the mean I lie in the Gaussian.

    People who prefer gay sex still marry opposite sex members, because unlike here, marriage is not a naive celebration of the “I have found the man of my life” bullshit. It just is a one of things I have to do in life.. if you want to give it a name, call it my dharma.

    So, please stop categorizing me.. and telling me to define myself and become a part of this rights-frenzy world where everything for plastic water bottle to a the entire godfasken planet have rights!

    http://globalflowofinfomationfall2004.blogspot.com/ http://russell.blogs.com/mysore_musings/2004/02/no_.html

    • Yours is the smartest and most thoughtful comment on the subject that I have read. Yes, this hard categorising of compartmentalised identities and harsh emphasis on “human rights of … whomever’ does ignore the very informal, understated, implicit behaviour and affirmation that goes on in India, away from the gaze of the human rights watchdogs and hard edged commentators. And this applies for most if not all phases of Indian society- religion, language, caste, gender etc.

      Philippine Resto above, sorry to say, but your message is just about the dumbest on the subject. This is not about the male dominated Indian society at all, but about outdated laws and perceptions, which exist everywhere, including the US.

  7. The server was homophobic and cut off my first attempt at responding, so I try again:

    Yay!!! a queer post!! And a good one, at that–thanks, Ennis.

    I was at the World Social Forum in Bombay last year and I got to see all kinds of stuff that I had no idea existed: I marched with hijras, sex workers, lgbt people, and hundreds (thousands?) of other Brown folks and chanted in Hindi at the most fun march of the whole event (try finding that at a pride parade in the US); I found out about a transgender organization in Dhaka and a ton of other groups that I was really surprised to learn even exist (who would have thought there was an lgbt group in Bhubaneshwar?); I heard a reading of a fairly sophisticated coming-out play written in Marathi that me and two White dudes had to have simultaneously interpreted for us (it actually brok from the usual after-school special style); I met some cute people ;) I went to a party in an abandoned mill converted to a club that the police shut down promptly at 1 (although they weren’t about to arrest anyone, i don’t think, as long as everyone left); and I went to one of the best afterparties I’ve ever been too–a mix of desi (there) and desi (here) queer folks and a few people from other places.

    So you should all be very jealous, and if there’s ever another large progressive mela in India, you should go, because it was awesome (even if you’re straight–there was pretty much something for everyone to be interested in–women’s rights, dalits, globalization, etc. and more importantly a lot of cool people to meet) :)

    But anyway, on the specific point that Saheli raised–I ain’t a lawyer or even really knowledgeable about this, but having followed the issue a little bit, the defense I heard from Indian policymakers (this was when the BJP was in power, I think) was similar to the one that rightwing Christians in the US like man-on-dog Santorum use: repealing the law against “unnatural acts” would make it more likely that all kinds of other abuses would happen like child abuse, etc.

    Thankfully, there’s, as Ennis pointed out, a movement afoot, and its not just restricted to LGBT people, as I mentioned above, but people who are oppressed on the basis of their sexuality in general. There’s also a lot of stuff that happens on the d/l–I heard about cruising in parks in Delhi.

    In short, I’m frequently more optimistic about the rate of progress there than here in the US ;)

  8. “What’s the surprise, I thought it was illegal for a woman and a man to even hold hands in public India . . . oh yeah but raping low caste women is OK.”

    Thanks for your brilliant contribution. Where does it say that raping low caste women is OK in the Indian constitution? The constitution was significantly reworked before adoption but some sections were still left over from Common Law.

    Hopefully itll change over a period of time but I think they have bigger things to sort out such as Uniform Civil Code etc.

  9. Puhlease… The fascist west that is obsessed with square corners is imposing its categories of sexuality (gay, straight, bisexual .. mental, whatever) on me. Sexual identity is esentially a fabrication of the west – same sex love existed in India, and like all things in India, it just is. I dont have to define it as an integral part of me or use grandiose terms, or think about how many standard deviations of the mean I lie in the Gaussian. People who prefer gay sex still marry opposite sex members, because unlike here, marriage is not a naive celebration of the “I have found the man of my life” bullshit. It just is a one of things I have to do in life.. if you want to give it a name, call it my dharma. So, please stop categorizing me.. and telling me to define myself and become a part of this rights-frenzy world where everything for plastic water bottle to a the entire godfasken planet have rights!

    Nefretiti, I’ll totally support you in defining yourself or not defining yourself however you want (I don’t like the boxes we get trapped in either–i think it impedes personal growth)–but it’s annoying for you to mesh it without precision with grand issues like what comes from the West and what’s indigenous to India conceptions of marriage and identity from that space.

    I’m sure you know that not every queer person in South Asia gets married (or stays married), that some choose to take on various queer or msm or whatever identities because they want to, and that a lot of people go through a lot of pain (including separation from their families, partners, friends, and loved ones by thousands of miles, putting up with $hit from other queer people, etc.) to understand themselves and break out of their “dharma.”

    And I have a friend in India who eloped with a neighbor boy, so I suppose heteronormative marriage is not always so uniform either, eh?

  10. All you folks, please dont analyse complex societies based on you narrow frameworks imported from different societies.

    Homosexuality to be openly accepted in India will take some time. Though things are far from ideal.Meanwhile millions of Indian homosexuals(I am not saying all of them) live quite happily. I say this from gay friends of mine in India.

    The difference is, homosexuality like sexuality in general is more under wraps. People dont express their sexual preferences – gay or straight in the open.

    By fast tracking change you will only invite extremism from the other side, give a stick for VHP,Bajrang Dal, Muslim Board etc etc fanatics to beat you with(or rather INdian gays, not you) and make progress more difficult. Given its own time, things will be alright- afterall Indians are quite liberal when it comes to sex, just that its kept behind doors.

  11. What’s the surprise, I thought it was illegal for a woman and a man to even hold hands in public India . . . oh yeah but raping low caste women is OK.

    Technically its not illegal in India to be gay, it is illegal to engage in gay sex. Nine U.S. states had this same law until 2003.

    And most U.S. states still outlaw adultery (!!) What…have lawmakers never watched Desperate Housewives? I’m not sure but apparently adultery is very common?!

    So America isn’t all that open-minded either.

    I’m not too sure about this, but I think the Indian sodomy law, like its erstwhile American counterparts, and like American adultery law, is one of those laws that isn’t really enforced. The Delhi Court dismissed the case on standing grounds, meaning that basically a gay person who had been prosecuted would have to bring suit, not an NGO (lets see what the Supreme Court says). Can’t hate on the courts for that one, standing is a legitimate legal principle. If the Indian “unnatural acts” laws really are rarely enforced, don’t expect the courts to be able to deal with the issue anytime soon. Blame it on the politicians.

  12. vurdlife, from HRW:

    HIV/AIDS outreach workers who target men who have sex with men3 suffer widespread and serious abuses. The taboo in Indian society against men who have sex with men and the denial at all levels of their existence create an environment of moralistic judgmentalism against which AIDS educators battle constantly. The criminalization of homosexual practices under the pre-colonial section 377 of the Indian Penal Code on “unnatural offences” contributes to the impunity with which police harass these men and those who work with them. Organizations that conduct AIDS education activities in Lucknow, Mumbai, Chennai, Sangli, Bangalore, and New Delhi described serious incidents of police abuse that had sometimes prevented them from providing information and condoms to men who have sex with men. Common to all these accounts was the practice of police extortion of money or sex directed against a group of persons who are so marginalized in society that they have nowhere to turn for redress.

    An important case of harassment of outreach workers in the MSM community involved the arrest of HIV/AIDS workers from Bharosa Trust and Naz Foundation International (NFI) in Lucknow in 2001. The police at first accused both groups of running a “sex racket” and of showing pornographic films in their offices, though eventually these allegations were dropped from the official charges. In this case, workers were detained for forty-seven days, part of that time without access to potable water, clean food, or sanitation facilities. The Lucknow case is still pending in the courts.

    Advocates for men who have sex with men reported that the police regularly use section 377 to justify their ill treatment of HIV/AIDS outreach workers but rarely bring up formal charges under that provision. As a result, they say, the government can claim that section 377 is a benign and rarely used law. Police also accuse those doing AIDS outreach of promoting homosexuality, another kind of threat related to section 377, and have at times attempted to link them to national security offenses, narcotics offenses, or other criminal acts.

    Men who have sex with men and women in prostitution are easy targets for police extortion and physical abuse. Discriminatory police practices that keep them from filing complaints or seeking redress, combined with the financial difficulties of making bail, typically mean long periods in detention facilities where they are subject to further abuse. Moreover, crackdowns on particular nongovernmental organizations engaged in HIV prevention and awareness among high-risk persons has had a chilling effect on the activities of others seeking to assist these vulnerable populations. In the case of the jailing of the NFI and Bharosa workers in Lucknow, for instance, several groups working with men who have sex with men reported that attendance at support group meetings dropped and vulnerable men were harder to reach for AIDS prevention work as word of the Lucknow incident spread and many men feared similar abuse.

    In addition to arrest and detention justified by section 377, AIDS outreach workers have also been accused by police of being “threats to national security” and in one case charged under the National Security Act of 1980. The Lucknow defendants were publicly accused of spreading ideas said to be “against Indian culture” and charged with promoting homosexuality under various parts of the Indian Penal Code that have to do with abetting crimes.

  13. Of course the Indian laws are enforced. It’s what the cops use to harass hijras (India’s traditional transgendered communitee) when the hijras are not harassing innocent bystanders.

  14. I tried googling this but didn’t get any results. No, wait there was one link which did have the story but it was subscription only so I couldn’t read it. Back in 88 there was a story reported in the newspapers that a lesbian couple from the police force in Bhopal had been fired for their sexual preference. They went to court which interestingly (if I remember correctly)allowed them to live together. I’m not sure if they got their jobs back. Anyone have/remember any details on this?

  15. And from http://www.hindustantimes.com/2005/Apr/21/5922_1327729,0015002500030001.htm as posted below A CROWD of curious onlookers, lawyers, litigants and others had gathered outside the court where the lesbian couple, Usha Yadav and Shilpi Gupta, was produced today.

    To recall, both the girls who were close friends, had left home on January 25 to attend their friend’s wedding at Lucknow. After this, they went missing. Their parents tried their best to trace the girls, but failed. Residents of Dhoomanganj area, the parents of these girls were suspicious of their ‘intimate’ relationship.

    Shilpi was already engaged to a man. Till then, there was no sign that the girls were planning to elope. Their friendÂ’s wedding at Lucknow probably gave them the idea of running away together. They reportedly persuaded their family members to allow them to attend the wedding and left for Lucknow in a Tata Sumo. Their parents even reportedly came to the taxi stand to see them off. Later, ShilpiÂ’s father lodged a report at the Dhoomanganj police station that her daughter had been kidnapped. The cops, after failing in their attempts to trace the girls, took recourse to electronic surveillance.

    The police came to know that Usha had called from a PCO in Sitalwad, Gujarat. A police team left for Sitalwad along with women constables and nabbed the girls.

    According to sources, the girls created quite a scene and Shilpi shouted that nobody would be able to separate them. She said Usha was her husband and she would not be able to live without her.

    When the girls were brought to the police station on Sunday night, they were not ready to be separated even for a while. Both said they shared a deep love and would not stay separately under any circumstances.

    Grant sufficient time: Court

    THE TWO girls, Usha Yadav and Shilpi Gupta, were produced by the police before the court, on Tuesday.

    Judicial Magistrate AK Dubey said if the police wanted to record the statements of the girls, then they be produced on April 25. The court observed that sufficient time should be granted for independent thinking. One Rajendra Prasad Gupta of Dhoomanganj locality of Allahabad had lodged an FIR under Section 363 and 366 of the IPC. Father of Shilpi Gupta, Rajendra, had made a complaint against Usha Yadav for kidnapping his daughter.

    In its application before the court, the police said that both the girls were adults and wanted to live together with free will, therefore, their statements be recorded.

    The court directed that the girls be produced on April 25 and in the meantime they would stay at Nari Niketan.

    The court also said that it was necessary to determine whether the girls were adults or not.

    The court also said that no guardian of the girl has submitted any application for their release of the girls.

  16. its really sad to read about homosexuals going through such a hard time…its there life so why cant the government just accept it…indian laws were framed around 50 years back the world has changed…isnt freedom of expression our fundamental right….