Homosexuality in India, where tradition still rules

India's erstwhile colonial laws outlawing homosexuality are out of touch with a changing society, Chinmayee Manjunath discovers.

“Homophobia, and not homosexuality, is new to Indian culture,” says Vinay Chandran of Bangalore-based charitable trust, Swabhava, which works with gender and sexual minorities in the country. His argument has a sound basis considering homosexual acts have been recorded in ancient Indian writings, including the Kama Sutra, for hundreds of years.

Current attitudes towards homosexuality, in part go back to 1860, when India was under British rule. It was then that the infamous Section 377 was introduced into the Indian Penal Code.

Section 377 discriminates persons on the basis of their sexual orientation, and asserts that the offence is "sodomy." Section 377 was put into place for all the British colonies including, Pakistan, Bangladesh, Nepal and Bhutan, but has since been repealed in England, the rule's country of origin.

Section 377 prohibits "carnal intercourse against the order of nature." To put it simply, homosexuality per se is not an offence, but being caught in a homosexual act is illegal.

Unfortunately, this provision has become one of the most notorious forms of legal discrimination against homosexuals, who already suffer from severe social stigma in India. India sees the current law regarding homosexuality as having served the country well, and has therefore not changed it since its independence. However, the law is rarely applied and is more often that not used for purposes of intimidation.

Arvind Narrain, who works with the Alternate Law Forum, said: “Section 377 is used to criminalise and prosecute homosexuals. It actually legitimises the abuse of homosexuals.”

The treatment of homosexuals in India, can be linked to Indian traditional society, which tends to be deeply conservative and disapproving of sex outside of marriage. Family is an important part of Indian culture, and the institution of marriage is seen as strengthening family values. As Indian society is very collective in its nature, this excludes the promotion of homosexual values.

Female homosexuals are dealt with more severely than males in India.

When Deepa Mehta’s 1998 movie, Fire, was released, it caused nationwide controversy across India and caused the topic of homosexuality to be hotly debated within public forums, an area where it had for the most part been all but silent.

The movie - which tells the story of two deeply unhappily married women who start an affair with each other - resulted in Hindu activists burning down cinemas and lobbying the government to have it banned. In response, lesbian activists began to organise the self-proclaimed "Campaign for Lesbian Rights" movement. "Fire", was eventually banned in India, showing quite clearly that it was extremely dangerous to try and overturn the country's traditional values.

It’s not that Indian society is naïve about homosexuality and doesn’t believe that it exists, indeed in larger cities it is well-known in certain circles that closet homosexuals exist. However, this tends to be amongst its wealthier members of society, where little taboo surrounds it. The problem lays outside of these privileged confines, in poorer areas, where people don’t have the money or power to attain safety.

Additionally, a report released in 2001 by the "People’s Union for Civil Liberties" states there have been several cases of extortion, blackmail, and illegal detention by the police who have used Section 377 as a basis for abuse.

Vinay Chandran explains: “When a gay couple is blackmailed by the police, they do what is asked of them simply because they are scared of their sexuality becoming public knowledge. This archaic law is being used to create fear, and fear creates opportunities for harassment. Harassment is illegal and a gay man or a lesbian can file a complaint.”

However, repealing Section 377 is not a solution either and could actually be detrimental to the treatment of homosexuals. This is because, ironically enough, it is this provision that is cited in cases of child sexual abuse and rape.

Indian law has no clearly defined provisions that cover all forms of rape and child sexual abuse. Until, and unless, laws look beyond "penetration" as the definition of rape, and comprehensive laws to deal with child sexual abuse are incorporated into the system, there is little point repealing Section 377.

Vinay Chandran concludes that repealing the provision alone "will not make homosexuals' lives any easier."

Arvind Narrain suggests there needs to be more awareness of the law and its scope in relation to homosexuality. He says there are cases where sodomy is equated with homosexuality. Both Arvind Narrain and Vinay Chandran agree that Indian society needs to get better acquainted with the idea of homosexuality, and furthermore that Indian homosexuals should accept their own sexuality more readily.

Radically, India’s foremost gay activist and theorist, Ashok Row Kavi, has much to say on the topic. He wants homosexual rights to stay firmly on top of the agenda.

Ashok said: “Social relations have to be defined through homosexual eyes. What does it mean for two men or women to live together? This must be defined through common law marriages, implications for pensions for same sex spouses, insurance for left behind spouses and even joint ownership of property.”

Until these needs are addressed, homosexuality continues to be seen in India as an individual freedom and one that threatens religious and societal beliefs in India.

In the country's bigger cities, homosexuality is hidden away more efficiently than in smaller villages where individuals are sometimes tormented because they are forced to live double lives or face being ostracised.

Vinay Chandran concludes: “Until societal spaces are safer, people will not admit they are homosexual, but such spaces cannot be created until they do.”