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Pre-colonial India[edit]

File:Samesexloveindia.jpg
A monk caresses a layman, from the Temple of Visvanatha, Khajuraho, Central India, 10th century CE

There are a number of ancient Indian texts which are relevant to modern LGBT causes.

The Arthasastra, an ancient Indian treatise on statecraft, mentions a wide variety of non-vaginal sexual practices which, whether performed with a man or a 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.[1]

The Manusmriti, which lists the oldest codes of conduct that were proposed to be followed by a Hindu, does include mention of homosexual practices, but only as something to be regulated. Though homosexuality was considered a part of sexual practices, it was not always well accepted. There were punishments prescribed for homosexual behaviour. For instance, the verse referring to sexual relations between an older woman and a virgin (woman) reads"...a woman who pollutes a damsel (virgin) shall instantly have (her head) shaved or two fingers cut off, and be made to ride (through the town) on a donkey",[2] suggesting a severe punishment. However, the verse referring to sexual relations between two virgins suggests a relatively milder punishmentTemplate:Spaced ndash"...a damsel who pollutes (another) damsel must be fined two hundred (panas), pay the double of her (nuptial) fee, and receive ten (lashes with a) rod".[3] These provisions, quoted out of context, seem against lesbianism, but in fact they are concerned not with the gender of the partners but with the loss of virginity that rendered a young woman unworthy of marriage. For instance, the punishment for a forced sex act between a man and a woman states "...if any man through insolence forcibly contaminates a maiden, two of his fingers shall be instantly cut off, and he shall pay a fine of six hundred (panas)",[4] which seems more severe in comparison to the punishment prescribed for the same act between two virgins. Sex between non-virgin women incurred a very small fine, while homosexual intercourse between men was sought to be censured by a prescription of 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.[1] The discrepancy in treatment may have been due to the text's non-equal views on males and females, considering that the Manusmriti is the same scripture that has stated that the status of woman in the society is the same (or even lower than) that of a man’s land, his cattle and other possessions.[5]

The classic Indian text Kama Sutra[6] deals without ambiguity or hypocrisy with all aspects of sexual life—including marriage, adultery, prostitution, group sex, sadomasochism, male and female homosexuality, and transvestism.[7]

Colonial era[edit]

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Modern India[edit]

Homosexual intercourse was a criminal offence until 2009 under Section 377 of the Indian Penal Code, 1860. This made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." This law was struck down by the 2009 Delhi High Court decision Naz Foundation v. Govt. of NCT of Delhi, which found Section 377 and other legal prohibitions against same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.

Whilst convictions under Section 377 were rare,Template:Citation needed with no convictions at all for homosexual intercourse in the twenty years to 2009,Template:Citation needed Human Rights Watch have said that the law was used to harass HIV/AIDS prevention activists, as well as sex workers, men who have sex with men, and other LGBT groups.[8] The group documents arrests in Lucknow of four men in 2006 and another fourTemplate:Clarify in 2001. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities[9] and, in particular, transsexuals (hijras and kothis) in India.[10]

Decisions of a High Court on the constitutionality of a law apply throughout India, and not just to the territory of the state over which the High Court in question has jurisdiction.[11] However, even after the pronouncement of verdict, there have been (rare) incidents of harassment of homosexual groups.[12]

On 16 February 2012, the Supreme Court, during a hearing of a bunch of appeals filed against decriminalisation of gay sex, observed that homosexuality should be seen in the context of changing society as many things which were earlier unacceptable have become acceptable with passage of time.

The two-judge bench, composed of Justices G S Singhvi and S J Mukhopadhaya, opined that homosexuality should be seen in the light of changing times where phenomena of live-in relationship, single parents and artificial fertilisation have become normal. They had also pointed out that many things, which were considered immoral 20 years ago, have become acceptable to society now. The bench said that gay sex was not an offence prior to 1860 and referred to paintings and sculptures of Khajuraho. Senior Advocate Amrendra Sharan, who opposed the Delhi High Court order of decriminalising gay sex on behalf of the Delhi Commission for Protection of Child Rights, had then submitted that social issues cannot be decided on the basis of sculptures. The apex court bench, however, observed that it is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse. Earlier, the Supreme Court bench had asked the anti-gay rights groups, challenging legalisation of gay sex to explain how such acts are against the order of nature as submitted by them.

The apex court was hearing petitions filed by anti-gay rights activists and also by political, social and religious organisations which have opposed the Delhi High Court verdict decriminalising homosexual behaviour.

However, on 23 February 2012, the Union Home Ministry of the UPA government replying to a Supreme Court observation, told the Supreme Court that it was opposed to the decriminalisation of gay sex. "This is highly immoral and against the social order," the Home Ministry told the apex court. It said that India's moral and social values were different from other countries, and therefore, the nation should not be guided by them.[13] The Central Government reversed its stand on 28 February 2012, asserting that there was no error in decriminalising gay sex. This resulted in the SC pulling up the Centre for frequently changing its stand on the issue. Don't make a mockery of the system and don't waste the court's time, an apex court judge told the government.[14]

Also in 2012, a guide titled 'Creating Inclusive Workplaces for LGBT Employees in India' was developed by IBM, Goldman Sachs, Google together with Community Business, a non-profit organization.[15]

References[edit]

  1. 1.0 1.1 Template:Harvnb
  2. Manu Smriti Chapter 8, Verse 370. Text online
  3. Manu Smriti Chapter 8, Verse 369. Text online
  4. Manu Smriti Chapter 8, Verse 367. Text online
  5. Template:Cite web
  6. Template:Cite web
  7. Template:Cite web
  8. India: Repeal Colonial-Era Sodomy Law, report from Human Rights Watch, 11 January 2006.
  9. [1]Template:Dead link
  10. [2]Template:Dead link
  11. Kusum Ingots v. Union of India, (2004) 6 SCC 254: "An order passed on a writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act."
  12. Template:Cite news
  13. http://www.mumbaimirror.com/article/3/2012022320120223141327934d025428/Homosexuality-Govt-opposes-HC-verdict-in-apex-court.html
  14. http://www.indianexpress.com/news/supreme-court-pulls-up-centre-for-flipflop-on-homosexuality/917743/?google_editors_picks=true
  15. http://articles.timesofindia.indiatimes.com/2012-10-09/india/34342194_1_lgbt-employees-lgbt-community-lgbt-issues