There Is Hope for Gay Rights in India
India is one of the few remaining liberal democracies that criminalizes homosexual activity, but the seeds of change are already in place.
In late June, the United States Supreme Court decided that states must recognize same-sex marriages and cannot outlaw such unions. The decision has sparked renewed debate in India on its own approach to gay rights.
Section 377 of the Indian penal code, which dates from 1860, criminalizes homosexuality. It was written by the Victorian-era British – the descendants of whom have long scraped such laws – and punishes all sexual activity “against the order of nature.” In 2009, the Delhi High Court decided that Section 377 – as it referred to homosexual acts between consenting adults – was unconstitutional. But the Indian Supreme Court in 2013 re-criminalized homosexuality on the grounds that the matter was for the people and their representatives to decide, not the courts. Therefore, it is up to the Indian parliament to amend or abolish Section 377. Given the nature of Indian society, it is highly unlikely that it will legalize same-sex marriage anytime soon.
India is one of the few remaining liberal democracies that criminalizes homosexual activity, something which is not technically illegal in countries like Russia and China. The social momentum and rights-based pressure for decriminalization makes it highly likely that India will legalize homosexuality in the near future. Soon after the U.S. Supreme Court decision, India’s law minister from the conservative Bharatiya Janata Party (BJP), Devaragunda Venkappa Sadananda Gowda, said that it was time to start a conversation on Section 377, before backtracking due to pressure from the far-right. However, Ram Madhav, the spokesman of the Rashtriya Swayamsevak Sangh (RSS), a Hindu right-wing umbrella organization, stated that “while glorification of certain forms of social behavior is not something we endorse, the penalizing and criminalization aspects need to be looked into. Whether to call homosexuality a crime and treat it as one in this day and age is questionable.”
Indian attitudes toward equal rights for gays are significantly different from those in the West, a reflection of the country’s distinct ethical and religious traditions. Although conservatives in India are generally wary of embracing gay rights, their opposition is less muscular and passionate than that of Western religious groups. Non-Muslim Indian opposition to equal rights for gays centers less around the immorality of homosexual acts than on worries about the family line. Progressives, on the other hand, are largely influenced by Western approaches toward the issue and have not adapted their thinking to Indian conditions.
The traditional Hindu notion of homosexuality and the place of gays in society cannot be framed in Western terms. In Indian culture, like Chinese culture, producing children – especially a male heir, both for religious and worldly reasons – is considered an essential duty. The extinguishment of the family line is considered highly undesirable. That is why, despite Hinduism’s ascetic tradition, pious Hindus are enjoined to only renounce the world after completing the “householder” stage of their lives, during which familial, economic, and social duties are paramount. Yet beyond this norm, Indian culture accepts the reality of multiple alternative arrangements – while not considering them ideal – along sexual and gender spectrums.
South Asia is quite liberal on issues of transgender rights, for example. Both India and Pakistan acknowledge the legal rights and existence of a third gender – the hijra – which usually comprises men (straight or gay) who take on roles and clothing traditionally associated with women. This is accepted by the Hindu and Muslim traditions of South Asia.
As for marriage, in the Hindu tradition – though not legally as per Indian law – a Hindu priest can theoretically marry any number of beings to each other, including even animals and inanimate objects (though since the Medieval period, Hinduism has idealized husband-wife monogamy). Some of these traditional weddings with inanimate objects and animals, as well as with individuals of the same gender, take place in rural India and are conducted by Hindu priests.
Indian law allows different communities to have different civil arrangements on familial matters (for example, Muslim men can take four wives in accordance with their traditions but Hindus can only practice monogamy). It would not be farfetched for India’s legal system to eventually add more familial options, since it already provides for multiple norms.
Indian mythology and philosophy are replete with ideas that differ from Christian, Jewish, and Muslim normative statements on human behavior, including sexuality. Morality in the Indian tradition is generally more situational. Dharma – an Indian term difficult to translate, but which could mean righteousness, duty, law, virtue, or conduct – refers to actions and principles that apply to individuals based on their natural inclinations and social positions. Individuals ought to follow different dharma in different situations. This sense of morality is therefore flexible. Multiple mythological stories and temples also depict homosexuality – neither endorsing nor condemning it, but presenting it as a fact of life, a part of experience that is the consequence of the soul being embodied in the world and the endless, eternal cycle of time. Ultimately, in Indian philosophy, everything and everyone is embraced, encompassed, and transcended by Brahman, the ultimate reality that pervades the universe.