IDIA Punjab Chapter’s First Essay Writing Competition

IDIA

IDIA Punjab Chapter conducted its 1st first Essay Writing Competition in the memory of Late Prof. (Dr.) Shamnad Basheer. It was a fundraiser competition to support the activities of the Chapter such as sensitisations and training.

The competition was judged by Dr. Tanya Mander Assistant Professor of Law, Rajiv Gandhi National University of Law and Dr. Abhinandan Bassi, Assistant Professor of Law, Rajiv Gandhi National University of Law. 47 students participated in this essay writing competition, out of which Krishnapriya Sreekumar and Leeon Baby won the competition. The winning essay is as below.

LGBTQIA+ Rights and Their Progression in Indian Society

~ Leeon Baby & Krishnapriya Sreekumar

LGBTQIA+ Community; Synonym? Resilience.

Despite the deprivation of their basic rights; the very denial of which is violating and unconstitutional, the deep-rooted culture of misunderstandings and ignorance and the series of violence and hate-speeches targeted at them, this community always remains hopeful that their fight will not go in vain and grateful for each step of progress they’ve made. For this very reason, among many others, their story deserves to be told.

LGBTQIA+

The term LGBTQIA+ may sound rather new to some who have familiarized themselves with the common LGBT/Q[1] usage. Although it was a liberating term that allowed the community to escape from the generic/de rigueur reference of ‘gay community’, it was still limiting in a way. And so, over the years, these ‘letters’ acquired a few more admissions, with the intent to accommodate more inclusivity. ‘The language used to describe the gender and sexuality spectrums has grown, with new terms becoming more prominent’[2].

The addition of ‘Q’ represents the term ‘Queer’ for some; a catch-all term that ‘shed its derogatory origins’[3]and gained acceptance, representing those who are not straight and not cisgender[4][5], and ‘Questioning’ for the rest; a representation of those who are uncertain of their sexual orientation or gender identity.[6]

The letter ‘I’ symbolizes ‘Intersex’; ‘an umbrella term for differences in sex traits or reproductive anatomy’[7] and ‘A’ signifies either ‘Ally’; a person who is not a part of the ‘LGBTQI+’ community but who actively supports it[8] or ‘Asexual’; a person who ‘experiences little to no sexual attraction’[9]

The addition of the ‘plus (+)’ groups other sub-sects of the sexuality and gender spectrum, not formerly mentioned, as an umbrella term. This includes sexualities such as Pansexual[10], Demisexual[11] etc. and genders such as Non-Binary[12], Gender Fluid[13] etc. that deserve equal, if not; owing to the lack of awareness on the same, more education regarding.

Familiarizing ourselves with all parts and aspects of this community and its vast terms is essential in creating an open, accepting, rational and educated society.

LGBTQIA+ in India – A Timeline

Indian History is no stranger to the LGBTQIA+ Community and in fact has its own accounts of the same.

As per the research done by the GALVA[14], homosexuality was recognized as “tritiya prakriti” or third nature around 3102 B.C during the Vedic Age[15][16][17]. Amara Wilhelm’s book titled ‘Tritiya-Prakriti: People of the Third Sex’[18] records extensive research regarding not only the existence of homosexuals and ‘third genders’ in Medieval and Ancient India, but their acceptance in society.

Temples in Puri and Tanjore dating back to the 6th and 14th centuries[19] contains unambiguous representations of queer couples. “One invariably finds erotic images including those that modern law deems unnatural and society considers obscene”[20]

One cannot ignore the overt documentation of homosexuality in Ancient India engraved in the architecture of the 12th Century-Built Khajuraho Temple in Madhya Pradesh. “If you think homosexuality is a western concept, go to Khajuraho[21][22][23]

Additionally, ancient tests such as Manusmriti, Puranas, Arthashastra include inscriptions expressed against homosexuality, which indicates that homosexuality is not a western concept and very much existed in India before the British Raj.

The Ancient Text Kamasutra explicitly dedicates an entire chapter to erotic homosexual behavior and activities including oral sex between men[24] as well as explicit lesbian relations[25]. It talked of women who married other women and raised children together[26] and also contained some remarks on bisexuality[27]

Under the rule of the Delhi Sultanate and the Mughal Empire, many instances of gay and bisexual relationships were recorded despite it being against Sharia[28]. One such instance was found in the ‘maddened affliction’[29] that Emperor Babur had with a teenage boy named Baburi[30][31]. It has also been famously speculated that Alauddin Khalji of the Khalji Dynasty was bisexual and had a deep relationship with his slave-general, Malik Kafur[32][33] who he was “deeply and madly in love with”[34]

Fast forward to 1861 India under the British Raj when sexual activities “against the order of nature” including homosexuality was formally criminalized under Section 377 of the Indian Penal Code, 1860[35]. Along with India, the British Empire instituted the same Section 377 within the penal codes of their colonies; Malaysia, Pakistan, Singapore, Myanmar, Jamaica etc.[36][37]. From this, the modern societal concept of ‘Homophobia’ was introduced. In fact this very instance acted as evidence for the notion that ‘homosexuality is not a western concept, but homophobia is’ and that before Queen Victoria’s British Raj introduced the European Conservative views of ‘Sin’, ‘Conjugal Love’ and the ‘Straight and Narrow’, men and women throughout India’s diverse history believed in a much more elastic sense of love and lust[38].

January 26 1950; The Constitution of India came into effect along with Articles 14[39], 19[40] and 21[41]; The Golden Triangle[42]. Despite Section 377 violating these Fundamental Rights, it remained a part of the IPC[43] even after Independence.

‘In 1977, Shakuntala Devi, Mathematician Extraordinaire, published the first study of homosexuality in India called ‘The World of Homosexuals’[44]. It called for the decriminalization and “full and complete acceptance – not tolerance and sympathy”[45]. The book however, went unnoticed at the time’[46]

The journey to decriminalize homosexuality in India started with the first petition filed by AIDS Bhedbhav Virodhi Andolan in 1994[47][48], challenging Section 377. The petition was eventually dismissed[49]. However in the same year, Hijras were legally granted voting rights as a third sex.[50][51][52]

In 1999, India’s and South Asia’s first Gay Pride Parade took place in Kolkata; ‘The Friendship Walk’, with only 15 attendees. A ‘Pride’ is a positive stance against discrimination and violence towards LGBTQIA+ and for the promotion of their self-affirmation, dignity, equal rights, recognition, and diversity.[53][54]

The second petition challenging Section 377 was filed in 2001 by Naz Foundation in the Delhi High Court. The court delivered its verdict in 2009[55] stating that ‘Section 377 and other legal provisions against private, adult, consensual and non-commercial same sex conduct was in direct violation of fundamental rights provided by the Indian Constitution’[56]. However, the celebrations didn’t last for long as on December 2013, the Supreme Court set aside the 2009 order stating that Parliament should debate and discuss on the matter[57][58]. The Apex Court further dismissed review petitions filed by the Central Government, Naz Foundation and several others in 2014 against its verdict regarding Section 377[59].[60]

In 2014 (and again 2018), The Indian Psychiatric Society released a statement saying that homosexuality is not a disease and that it didn’t recognize it as one[61][62], following which the BJP-Led Government’s Health Minister Harsh Vardhan said that “Everybody, including Gays, has human rights. It is the job of the Government to protect their rights[63]. In the same year, The Supreme Court ruled that transgender people should be treated as a third category of gender.[64]

In 2015, a private member’s bill for the decriminalization of Section 377 was introduced in the Lok Sabha by MP Shashi Tharoor but was rejected by a majority vote. “In India there has always been place in mythology for people of different gender identities… [and] sexual orientations. Indian history has shown no example of prejudice against [them], on the contrary in the Mahabharata we read about Shikandi…we also know about the whole concept of Ardhanarishvara. Unfortunately, the British came and passed laws…that criminalized a whole lot of human behavior and human reality that in India, had not been criminal[65][66].

In 2017, the Ministry of Health and Family Welfare recognized that homosexuality is natural[67][68]. In the same year, the Apex Court gave the LGBTQIA+ Community, the freedom to safely express their sexual orientation, following the verdict in the Justice Puttaswamy Case[69], stating that “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual” and that an individual’s sexual orientation is protected under the country’s Right to Privacy Law.[70]

However at this point, the Supreme Court, by not directly overturning any laws that criminalize same-sex activities, left these concerned laws in a convoluted paradox. LGBTQIA+ Community was able to express their sexuality freely but homosexual acts were still a crime and same-sex marriages were not even in the picture.

But cut to 6th September 2018, the Supreme Court of India, in a landmark judgment[71], invalidated the colonial-era law that criminalized homosexual sex, ‘paving the way for a better future’[72] “Section 377 of IPC was a weapon for blackmail[73] “LGBT Community are entitled to constitutional rights…the state has no business to intrude into these personal matters”[74]History owes an apology to the members of this community and their families”[75]

Thus, this landmark verdict ended the battle against Section 377 but the bigger battle for equal rights for the LGBTQIA+ community in all basic aspects, is still ongoing[76]

LGBTQIA+ in Modern Indian Society

The LGBTQIA+ community has come a long way since the imposition of the infamous Section 377; in terms of recognition, acceptance and awareness.

Indian society today is drastically different from what it once was. Modern India, being the ‘conservative’ society that it is, turns a cold shoulder to many topics that it considers ‘taboo’ like sexuality and sexual desire, non-heteronormative views etc. However, this extremely conservative country was once home to the world’s first sex treatise; Kamasutra[77]. Seen engraved in the walls of its architecture, Ancient India was far more liberal towards sexuality however Modern India seems to cover their history invisible, in favor of their homophobic arguments[78].

Homosexuality and Same-Sex Marriage is almost always hammered out of conversations for being ‘against Indian Culture and Values’ however it has been well-explored that ‘moralistic laws concerning homosexuality are a legacy of the British Colonialism [and] these ‘alien’ laws capture neither what it means to be Indian nor what it means to be moral’[79][80] Not ignoring the ‘homophobic-ness’ in various Ancient Indian Texts, the fact that these inscriptions spoke of homosexuality in India, further points out that homosexuality is not a western concept.

Much like untouchability[81], which was made illegal only through the enactment of the Indian Constitution in 1950[82], discrimination and homophobia are baseless ‘practices’ that in no way act as advocates for ‘Indian Morals and Values’. In fact, according to historian Harbans Mukia, the decriminalization of homosexuality has taken India back to its roots[83]. Since then, the community has had wins and challenges.

With the rise in campaigns, movements and initiatives to raise awareness about the LGBTQIA+ community, a small but substantial step towards equal rights is slowly being achieved. Families are now slowly discussing about LGBTQIA+ rights, and conversations have sparked throughout India. People are now far more comfortable than they were to come out to their loved ones and this is visible in the growth of the LGBTQIA+ community in India since the 2018 verdict[84]. LGBTQIA+ activists and influencers on social media have significantly helped raise cognizance and in making LGBTQIA+ youth feel more accepted.

One cannot ignore the role that media has played in ‘starting the conversation’ about LGBTQIA+ rights; be it positive or negative. Indian movies are rarely able to accurately depict what it means to be ‘non-heterosexual’ and are often successful in adding onto the stigma surrounding the conversation. Right from their casual ‘disgusted’ reactions to a gay character[85] to the portrayal of a character that is reduced to the most blatant stereotypes[86]. However keeping aside the failed attempts and misguided representations, there have been a few good movies that have been successful in voicing the stories of the LGBTQIA+ community. ‘Fire’ (1996), a notable movie ahead of its time, ‘featured an honest and significant representation’ of lesbian characters, ‘Aligarh’ (2016) ‘showcased the harrowing stigma… [nurtured] against LGBT folks’, ‘Mumbai Police’ (2013), ‘Margarita with a Straw’ (2014), Nanu Avanalla…Avalu (2015), Njan Marykutty’ (2018), ‘Super Deluxe’ (2019), Moothon’ (2019), Shubh Mangal Zyadha Saavdhan’ (2020) are among a few movies that have aimed to address issues surrounding the stigma. Although there is still a long way to go and a lot more to learn, a few steps such as these help take a giant leap forward.

Apart from this, be it news discussions, debates, public interviews or campaigns, it can safely be said that people are now more aware about LGBTQIA+ rights than they have ever been in Modern India.

However, challenges faced by the community have not ceased to exist. Members of the LGBTQIA+ community still face discrimination, harassment and violence in various forms[87][88]Same-Sex marriages and adoption are currently not allowed in India. A good percentage of people still believe homosexuality to be a ‘curable’ disease’[89][90]. It is also a popular notion that heterosexual sex will ‘convert gay people back to straight’ and ‘gay’ is still used in the context of a joke or insult. A lot of families still believe that by coming out, one has ‘ruined the family’ and that they will suffer eternal shame in society.

A popular argument against same-sex marriage surrounds the biological aspect of marriage and the inability of same-sex couples to procreate independently despite heterosexual infertile couples not being able to do the same; the only difference being that one can legally marry and the other is seen as a ‘morality-stain’.

In fact, Solicitor General Tushar Mehta has expressed his view that ‘Indian culture does not recognize same-sex marriage’ and ‘as per law, marriage is only between man and wife’[91][92]. The fact that many others strongly support his statement, and the common perception that same-sex marriage is offensive to society, reflects the need and importance of education and awareness. “It would misunderstand these men and women to say that they disrespect the idea of marriage…they do respect it, respect it so deeply that they seek to find its fulfillment for themselves”[93]. Despite all this, the recognition of same-sex marriages is one that is still hopeful in India[94][95][96], for it is a right to love and isnt love an expression?

There is still a long way to go to bring India back from 159 years of ‘homophobic colonial brain-wash’, and this journey must start from schools, homes and workplaces. To rid the stigma surrounding LGBTQIA+ rights, children must be encouraged to learn and educated themselves about it; families must be encouraged to openly discuss with their children about the same; workplaces must be more inclusive and aware and must no longer tolerate discrimination and harassment.

With the rise in the strength of voices advocating against India’s baseless homophobia and for the much deserved rights of the LGBTQIA+ Community, issues surrounding same-sex marriage, adoption, open service in the army and sexual harassment in workplaces, among many others, must and will be addressed.

“We have to bid adieu to perceptions, stereotypes and prejudices deeply ingrained in the societal mindset…to accept the distinct identities of individuals and respect them for who they are rather than compelling them to become who they are not[97]

[1] Lesbian, Gay, Bisexual, Transgender, Queer/Questioning

[2] The New York Times, The ABS of L.G.B.T.Q.I.A.+, June 2018/2019

[3] The New York Times, The ABS of L.G.B.T.Q.I.A.+, June 2018/2019

[4] Out Right International, Acronyms Explained

[5] Cis Gender: a person whose gender identity and expression match the sex they were assigned at birth (Out Right International)

[6] The New York Times, The ABS of L.G.B.T.Q.I.A.+, June 2018/2019

[7] InterAct Advocates, FAQ: What is Intersex?, May 2020

[8] Chicago Tribune, As the abbreviation grows, what does LGBTQIA stand for?, June 2017

[9] Galop UK, The A in LGBTQIA is for Asexual

[10] Pansexual: A person attracted to someone regardless of gender (Monetivo, O: out-of-the-closet, Pinterest)

[11] Demisexual: Someone who generally does not experience sexual attraction unless they have formed a strong emotional, but not necessarily romantic, connection with someone (New York Times)

[12] Non-Binary: An umbrella term for people whose gender is not just male or female

[13] Gender Fluid: Someone who feels that their gender is “fluid” and can change and vary over time.

[14] GALVA: Gay and Lesbian Vaishnava Association

[15] GALVA-108, India’s Slow Descent Into Homophobia

[16] Atharva Tawte, The Quantitative study of “how the opinion on social media shapes the LGBTQ+ Community”, 2019 JETIR April 2019, Volume 6, Issue 4

[17] Ankit Srivastava & Dr. Vivek Kumar, Section 377 and LGBT Activism in India, Volume 6, Issue 2, April/June 2019

[18] Amara Das Wilhelm, Tritiya-Prakriti: People of the Third Sex, 2004, Xlibris Corporation Publication

[19] Devdutt Pattanaik, Did Homosexuality Exist in Ancient India?, 2009

[20] Devdutt Pattanaik, Did Homosexuality Exist in Ancient India?, 2009

[21] Hrishikesh Sathawane, DNA Interview, 2018

[22] Not Same-Sex Sexuality but Modern Homophobia is the Western Import: Ruth Vanita, 2016, Feminism in India

[23] Shruti Sharma, Homosexuality is Well Documented in Indian Mythology, It is not a ‘Western Influence’, 2013, YouthkiAwaaz

[24] Wendy Doniger & Sudhir Kakar, Kamasutra, 2002, Oxford University Press

[25] Alain Danielou, The Complete Kamasutra: The First Unabridged Modern Translation of the Classic Indian Text, 1993, Inner Traditions Publication

[26] Wendy Doniger, Redeeming the Kamasutra, 2016, Oxford University Press

[27] Wendy Doniger, Redeeming the Kamasutra, 2016, Oxford University Press

[28] Sara Sohail, Homosexuality in Medieval India, 2019, Madras C

[29] Ruth Vanita & Saleem Kidwai, Same-Sex Love in India: Readings from Literature and History, 2000

[30] Babur, The Baburnama: Memoirs of Babur, Prince and Emperor, 2002, Translated and Edited by W.M Thackston, Modern Library

[31] Ruth Vanita & Saleem Kidwai, Same-Sex Love in India: Readings from Literature and History, 2000

[32] Sara Sohail, Homosexuality in Medieval India, 2019, Madras C

[33] Judith E. Walsh, A Brief History of India, 2006, Infobase Publishing (Line 1; Page 71)

[34] R. Vanita & S. Kidwai, Same-Sex Love in India: Readings in Indian Literature, 2000, Springer

[35] Section 377: Unnatural Offences

[36] Section 377, Wikipedia

[37] Josh Elliot, India legalized homosexuality, but many of its neighbors haven’t, 2018, Global News

[38] Epified, Homosexuality in Ancient India, 2015, YouTube

[39] Article 14: “The state shall not deny to any person equality before the law and the equal protection of the laws within the territory of India”

[40] Article 19: “Protection of certain rights regarding freedom of speech”

[41] Article 21: “No person shall be deprieved of his life or personal liberty except according to procedure established by law”

[42] Justice Chandrachud, Minerva Mills v. Union of India 1980 AIR 1789

[43] Indian Penal Code, 1860

[44] Shakuntala Devi, The World of Homosexuals, 1977, Vikas Publishing House

[45] Remembering Shakuntala Devi: The “Human Computer” and the Pioneer of Gay Rights, 2016, Gay Rights India

[46] Upasna Sharma, The History of LGBTQ, 2019, Wrytin

[47] Maria Thomas, Timeline: The struggle against Section 377 began over two decades ago, 2018, Quartz India

[48] Suyashi Smridhi, 22 Years On, AIDS Bhedbhav Virodhi Andolan: The Struggle Continues, 2020, Feminism in India

[49] Shobha Aggarwal, Reminiscing ABVA’s Struggle for Gay Rights in the Twentieth Century – A Brief History of That Time, 2019, AIDS BHEDBHAV VIRODHI ANDOLAN

[50] Ashwaq Masoodi, Is society changing for transgenders?, 2017, LiveMint

[51] Sexual Minorities Given Right to Vote in India’s Elections, 2014, UN General News

[52] Dr Neelu Mehra & Dr. Shivani Goswami, Third Genders: Their Agonies and the Demand for Legal Recognition, 2016, Global Journal of Interdisciplinary Social Studies, Volume 5(1)

[53] Friendship Walk, 1999, Gaylaxy Magazine

[54] Ankita Bose, Long Before ‘Pride Walk’ Became a Thing, Kolkata had a ‘Friendship Walk’, 2018, Inuth

[55] Naz Foundation v. Government of NCT of Delhi (2009) 160 DLT 277

[56] LGBT Rights in India, Wikipedia

[57] Dean Nelson, India’s top court upholds law criminalizing gay sex, 2013, The Telegraph

[58] Murali Krishnan, Supreme Court sets aside Delhi High Court Judgment in Naz Foundation; Declares S. 377 to be Constitutional, 2018, Bar and Bench

[59] Upasna Sharma, The History of LGBTQ, 2019, Wrytin

[60] IPS Secretariat, IPS: Positive Statement Regarding LGBTQ, 2020

[61] IPS Secretariat, IPS: Positive Statement Regarding LGBTQ, 2020

[62] Upasna Sharma, The History of LGBTQ, 2019, Wrytin

[63] HT Correspondent, It is govt’s job to protect LGBT rights: Harsh Vardhan, 2014

[64] National Legal Services Authority v. Union of India (2014) W.P (C) NO.400 OF 2012

[65] MP Shashi Tharoor, Lok Sabha

[66] Mango News, Shashi Tharoor Speech on His Bill to Decriminalize Homosexuality, 2016, YouTube

[67] Abantika Ghosh, Same-Sex Attraction is OK, boys can cry, girl’s no means no, 2017, Indian Express

[68] Abhishek Jha, Homosexuality is ‘Natural’, Health Minister wants Adolescents to Know, 2017, YouthkiAwaaz

[69] Justice K.S Puttaswamy (Retd) v. Union of India (2018) W.P (C) NO. 494 OF 2012

[70] Ankit Gupta, Supreme Court of India rules Sexual Orientation is a Fundamental Right, 2017, Victory Institute

[71] Navtej Singh Johar v. Union of India (2018) W.P (Crl.) No. 76 of 2016

[72] Ashok Sharma, India decriminalizes homosexual acts in landmark verdict, 2018, Concord Monitor

[73] Justice Chandrachud, Navtej Singh Johar v. Union of India (2018)

[74] Justice Chandrachud, Navtej Singh Johar v. Union of India (2018)

[75] Justice Indu Malhotra, Navtej Singh Johar v. Union of India (2018)

[76] Moksha Sanghvi, History of the Pride Movement in India, 2019, Deccan Herald

[77] Charukesi Ramadurai, India’s Temples of Sex, 2015, BBC Travel

[78] Devdutt Pattanaik, What do you see when you travel through India with a queer gaze?, Paragraph 5, CN Traveller

[79] Mayur Suresh, Voices Against 377, The Guardian

[80] Vikas Pandey, Why legalizing gay sex in India is not a Western Idea, 2018, BBC News

[81] Mayur Suresh, Voices Against 377, The Guardian

[82] Article 17 – Abolition of Untouchability, The Constitution of India, 1950

[83] Vikas Pandey, Why legalizing gay sex in India is not a Western Idea, 2018, BBC News

[84] Navtej Singh Johar v. Union of India (2018) W.P (Crl.) No. 76 of 2016

[85] Aayaan Upadhaya, Bollywood has a ‘Gay’ Problem and it’s time we talked about it, 2018, MensXP

[86] Aayaan Upadhaya, Bollywood has a ‘Gay’ Problem and it’s time we talked about it, 2018, MensXP

[87] Romita Saluja, India’s LGBTQ+ Community face domestic violence and pressure to ‘convert’, 2020, SCMP’S This Week in Asia

[88] Kai Schultz, Gay in India, Where Progress Has Come Only with Risk, 2018, The New York Times

[89] Kuwar Singh, “Disease”, “Dangerous”, “Curable”: What Key Public Figures in India think of Homosexuality, 2018, Quartz India

[90] Ketaki Desai, Why we’re still trying to ‘cure’ gayness with beatings, babas, 2020, Times of India

[91] Richa Banka, Our values don’t recognize same-sex marriage: Centre tells Delhi HC, 2020, Hindustan Times

[92] Karan Tripathi, Our Culture & Law Do Not Recognize The Concept of Same-Sex Marriages: SG Tells Delhi HC, 2020, LiveLaw.in

[93] Justice Kennedy, Obergefell v. Hodges (2015) 576 U.S 644

[94] Dhrubo Jyoti, Delhi HC to hear PIL on same-sex marriage, 2020, Hindustan Times

[95] Nishant Sirohi, LGBTQ+: Petition for marriage equality filed in Kerala HC, 2020, The Leaflet

[96] Kanav Sahgal, Same-Sex Marriage in India: Unveiling the Project, 2020, Feminism In India

[97] CJI Dipak Misra, Navtej Singh Johar v. Union of India (2018)

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