Two petitions challenging India’s antisodomy law had been dismissed by the Delhi high court, but the battle to remove the discriminatory law continues as the Indian Supreme Court ordered the high court in March, 2006, to reconsider the case and the constitutionality of the law.
India’s LGBT movement began in the 1980’s. In 1990, Bombay Dost, the first Indian gay magazine, carried an article in its second issue about the country’s sodomy law. India’s British rulers introduced this law—Section 377 of the Indian Penal Code—in 1860 (see sidebar). No systematic persecution or punishment of same-gender desire occurred in precolonial India; laws and practices varied widely, and same-gender relationships were discussed and even celebrated in premodern literature. The new law has led to few convictions, but it is widely used by extortionists and police to blackmail gays and also to threaten women who marry each other by customary rites.
On August 11, 1992, AIDS Bhedbhav Virodhi Andolan
In March of 1994, after prison authorities, citing Section 377, refused to make condoms available to prisoners, ABVA filed a public interest petition in the Delhi high court, asking for repeal of Section 377 on the grounds that it violates fundamental, constitutional rights to life, liberty, and nondiscrimination, and obstructs HIV-AIDS prevention. The petition was admitted on February 8, 1995. It came up for hearing in March, 2001, and was dismissed without arguments, probably because ABVA, the only major HIV-AIDS organization in India that is entirely unfunded and is run by unpaid volunteers, was unaware it had finally come up for hearing, and thus failed to appear.
In the 1990’s, global attention to HIV-AIDS enabled greater public discussion of homosexuality, governmental and foreign funding became available, and many HIV-AIDS organizations appeared in India. The Indian women’s movement also began to take cognizance of the growing LGBT movement. In 1997, Sakshi, a women’s rights organization, asked the supreme court of India to define “sexual intercourse” as used in rape laws, and the court directed the law commission to review these laws. In its report (March, 2000), the commission recommended expanding laws relating to rape, sexual assault, and child abuse, and making them gender neutral; it also recommended deleting Section 377, solely on the grounds that including same-gender rape in the rape laws would render 377 unnecessary.
Some women’s rights, civil liberties, and LGBT organizations began to discuss strategies for changing the law, including introducing a bill in Parliament. The groups, however, were deeply divided because some women’s organizations, like the All India Democratic Women’s Association (AIDWA), wanted Section 377 rewritten to exclude consensual sex and include a wide variety of possible sexual abuses, including male-male and female-female nonconsensual sexual contact, while most gay and lesbian organizations wanted the demand for deletion of Section 377 to be separated from any demand for sexual assault legislation.
In July of 2001, the office of Bharosa Trust,
This second petition received widespread media attention, and it garnered support from Indian celebrities in different fields. In the August 26, 2002 hearing, the solicitor general’s office claimed that homosexuality is unnatural, immoral, and opposed to India’s conservative culture. Justice R. S. Sodhi responded by asking whether homosexuality is not natural for homosexuals, whether ideas of morality do not change, and whether India is conservative more in theory than in practice. In its September, 2003, written response, the government of India quoted the 42nd Law Commission Report to claim that Indian society disapproves of homosexuality; it also claimed that Section 377 has been used to punish child abuse primarily. Several groups, including AIDWA, protested these claims.
On September 3, 2004, the court had dismissed the petition on the grounds that since the petitioners were not being prosecuted under Section 377, they had no cause of action against it. This contradicted the court’s admission not only of this petition but also the earlier petition by the ABVA. More than one year later, on February 3, 2006, however, the Indian Supreme Court ordered the Delhi high court to reconsider the case and rule on the constitutionality of Section 377.
The petitions against India’s antisodomy law galvanized social action groups and spurred public discussion of GLBT rights. Legislation to overturn Section 377 could soon be introduced in the legislature as well.
Several lower courts have ruled in favor of the cohabitating rights of female couples who married by customary rites and who had been threatened with prosecution under Section 377. On March 8, 2006, a local Indian court allowed two young women to live together as a lesbian couple after months of fighting law enforcement, family, and the courts over their right to do so. The parents of one of the women had falsely claimed that their daughter had been kidnapped by her lover, but after it had been found that the claim was untrue, the two were free to live together legally. The court refused to consider their relationship a violation of Section 377. This case sets a precedent for the gay and lesbian rights movement in India, and is part of a changing atmosphere in the country enabling GLBT people to fight for their civil rights.
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AIDS Bhedbhav Virodhi Andolan. For People Like Us. New Delhi, India: ABVA, 1999. -
Bhaskaran, Suparna. “The Politics of Penetration: Section 377 of the Indian Penal Code.” In Queering India, edited by Ruth Vanita. New York: Routledge, 2002. -
Bhat, Srikant. “Indian Law and the Homosexual.” Bombay Dost no. 2 (1990). -
David, Robin. “Court Order on Gay Relationship Now a Precedent.” Times of India, March 30, 2006. http://timesofindia.indiatimes.com/articleshow/1471374.cms. -
“Gay Community Hails SC [Supreme Court] Decision.” Times of India, February 4, 2006. http://timesofindia.indiatimes.com/articleshow/msid-1400349.cms. -
Narrain, Arvind. Queer: Despised Sexuality, Law, and Social Change. Bangalore, India: Books for Change, 2004. -
Ratti, Rakesh, ed. A Lotus of Another Color: An Unfolding of the South Asian Gay and Lesbian Experience. Boston: Alyson, 1993. -
Vanita, Ruth. Love’s Rite: Same-Sex Marriage and Its Antecedents in India. New York: Palgrave, 2005. -
Vanita, Ruth, and Saleem Kidwai. Same-Sex Love in India. New York: Palgrave, 2000.
May 6, 1868: Kertbeny Coins the Terms “Homosexual” and “Heterosexual”
1885: United Kingdom Criminalizes “Gross Indecency”
January 12, 1939: Thompson v. Aldredge Dismisses Sodomy Charges Against Lesbians
September 4, 1957: The Wolfenden Report Calls for Decriminalizing Private Consensual Sex
1961: Illinois Legalizes Consensual Homosexual Sex
January 22, 1973: Roe v. Wade Legalizes Abortion and Extends Privacy Rights
August, 1973: American Bar Association Calls for Repeal of Laws Against Consensual Sex
October 18, 1973: Lambda Legal Authorized to Practice Law
November 17, 1975: U.S. Supreme Court Rules in “Crimes Against Nature” Case
1986: Bowers v. Hardwick Upholds State Sodomy Laws
January 1, 1988: Canada Decriminalizes Sex Practices Between Consenting Adults
June 26, 2003: U.S. Supreme Court Overturns Texas Sodomy Law