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Introduction

Love need not take an explicitly sexual form, but it is nearly always expressed in the language of poetic excess and metaphoric power…. [I]t is generally believed that love can be either and only, familial or sexual, and that passionate love is singularly borne from the difference. But there is a special love that can only emerge through sameness: a love that is not necessarily sexual, but a passionate love nonetheless.
- Ruth Vanita in Preface of Same Sex Love in India

On September 6, 2018, India's Supreme Court rendered a significant decision in favour of the LGBTQIA+ community by striking down a colonial-era law that prohibited consensual homosexual intercourse. The verdict rendered by a five-judge panel of the Indian Supreme Court determined that Section 377 of the Indian Penal Code (IPC) contravened the constitutional provisions of the nation. The landmark ruling not only had a significant impact on the lives of millions of individuals who identify as LGBTQIA+, but it also reversed a previous decision that had resulted in the criminalization of this group five years earlier. Despite the repeal of Section 377, homosexuality continues to be stigmatised in Indian society. The LGBTQIA+ community persists in experiencing social marginalisation, both internally and externally, including within familial contexts. As per the findings of a research paper by Sahodaran-UNESCO in 2018, children who self-identify as LGBTQIA+ are subjected to bullying as early as the elementary school level. According to recent data, a majority of middle and high school students who identify as LGBTQIA+ reported experiencing bullying, with approximately 60% of such students reporting such incidents. Additionally, a significant proportion of students, approximately 43%, reported being subjected to sexual harassment. Merely 18% of juveniles disclose such occurrences to the appropriate authorities, whereas 33% of pupils withdraw from their educational institution. Instances of bullying are not restricted solely to educational establishments and organisations, but can also manifest among individuals who have reached adulthood. A survey conducted by the Mission for Indian Homosexual and Lesbian Empowerment (MINGLE) in 2016 revealed that a significant proportion of gay Indian employees, amounting to 20%, experience workplace discrimination that ultimately leads to financial setbacks. As per a report published by the World Bank in 2014, the marginalisation of individuals belonging to the LGBTQIA+ community in India has resulted in a financial loss of approximately 31 billion dollars, which accounts for 1.7% of the country's GDP.

The notion of diversity in love and desire, often perceived as an external influence, is in fact deeply rooted in the longstanding cultural values of ancient India. The circumstances underwent a significant transformation following the colonisation of India by the British. The enactment of the Indian Penal Code by the British introduced their idealistic Victorian values that regarded homosexual activity as "unnatural" and punishable. This code codified all substantive aspects of criminal law. This marked a significant moment in the legal regulation of gender and sexuality in India, as it constituted the inaugural instance of such regulation. Additionally, it represented the initial criminalization of same-sex sexual conduct within the country.

Homosexuality and Gender Expression in Hindu Religion and Mythology

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Hinduism boasts a significant global following, with approximately 1.1 billion adherents, positioning it as the third most widely practised religion worldwide. The phenomenon under consideration has undergone significant expansion to accommodate a substantial populace and diverse customs, thereby exerting a notable influence on the culture of India. For centuries, traditional storytelling, literature, and art have documented diverse expressions of sexuality and gender, while still acknowledging the fruitful relationship between men and women. The themes encompassed in the discourse involve alterations in sexual orientation, homoeroticism, and depictions of characters who identify as intersex or belonging to a third gender.

Within Hindu mythology, certain deities and heroic figures possess characteristics that align with those of individuals within the LGBTQIA+ community, who identify as non-binary or non-cisgender, or who do not conform to the gender assigned to them at birth. Sexual transformations, same-sex romantic encounters, and individuals identifying as intersex or third-gender are commonly depicted in the epics, Puranas, and regional folklore.

In Hinduism, it is believed that the deities Lord Vishnu and Lord Shiva are capable of manifesting themselves in both masculine and feminine forms. The reason for their veneration lies in their capacity to manifest both masculine and feminine energies, thereby endowing them with comprehensive knowledge and comprehension. Shiva is commonly perceived as the quintessential embodiment of masculinity, notwithstanding the fact that his Ardhanarishvara manifestation, which is a fusion of Shiva and his consort, the goddess Parvati, presents an androgynous composition. Parvati established a connection between her biological body and Shiva's to demonstrate the coexistence and intermingling of the inner masculine and feminine. This allowed her to partake in Shiva's experiences. As a result, she was able to satisfy her aspiration of acquiring knowledge from the sagacious teachings of Shiva. The figure's right side, symbolising the masculine, is embellished with customary Shiva adornments that are observable on numerous sculptures discovered in India and Southeast Asia.The depiction of the feminine form includes a hairstyle that is tightly coiled, a partial application of a circular dot known as a tilak on the forehead, the use of black eyeliner, well-defined breasts, a silk dress that is cinched at the waist, an adornment worn around the ankle, and a foot that has been dyed with henna.

Mohini, the feminine form of Vishnu, was frequently assumed as the central divinity in Post-Vedic Hinduism. On each occasion that Vishnu, in his capacity as the protector of the cosmos, adopted the feminine manifestation of the heavenly seductress Mohini, the planet was saved. In situations where problem-solving necessitates gender adaptability, specifically towards femininity as opposed to masculinity, Vishnu assumes the form of Mohini. According to Hindu mythology, Vishnu is believed to have procreated with Shiva while the latter was in the form of Mohini. The offspring of this union is known as Ayyappa, a revered deity who continues to be worshipped by a significant number of individuals in the southern region of India.

Within the Mahabharata, a prominent Sanskrit epic of ancient India, Vishnu assumes the form of Mohini to espouse Aravan, the offspring of Arjun and the Naga royal Uloop. Aravan, the individual who has been designated for sacrifice to ensure the triumph of the Pandavas in the Battle of Kurukshetra, expresses a final desire to not depart this life without having entered into the state of matrimony. In Hindu mythology, it is believed that Krishna, an incarnation of the deity Vishnu, assumes the form of Mohini and enters into a marital union with Aravan. Following Aravan's demise, Krishna is regarded as the widowed heroine. Aravan has been established as the patron deity of the transgender community in the nation, as per the narrative.

In Hindu culture, the planet Mercury, known as "Budh" in Hindi, is emblematic of traditional gender roles. Upon discovering that his wife Tara is carrying a child fathered by her lover Chandra, the deity known as "Lord of Sacred Speech" or "Rishi Brihaspati" proceeds to place a curse upon the unborn child, Budh, condemning them to an existence as an androgynous entity, devoid of any distinct male or female characteristics. Consequently, depictions of Buddha in the Nava-graha, which refers to the nine planets in Hindu astrology, are represented as possessing both male and female characteristics.

The documentation of the prevalence of homosexuality in India can be found in numerous Vedic and religious texts. The epic Ramayana, akin to the Mahabharata, offers significant perspectives on the recognition and prevalence of diverse genders and sexual orientations. Throughout the narrative of the Ramayana, the deity known as Lord Rama is subjected to a period of exile from his realm and compelled to reside in the wilderness for a duration of 14 years. Additionally, the epic Ramayana offers significant perspectives on the recognition and prevalence of diverse gender identities and sexual orientations. Throughout the narrative of the Ramayana, Lord Rama, a deity, is subjected to a period of exile from his realm and compelled to reside in a wilderness for a duration of 14 years. The leader directed his adherents towards the forested area, however, subsequently issued a directive for all individuals, regardless of gender, to make their way back to Ayodhya. Nevertheless, the transgender (hijra) individuals persisted in staying with Lord Rama. The loyalty displayed by the individuals in question had a profound impact on Lord Rama, who subsequently bestowed upon them the privilege of conferring blessings at significant events such as weddings, births, and inaugurations.

According to Hanuman's account of Valmiki's Ramayana, he observed instances of women engaging in passionate kissing within the confines of Ravana's palace and other residential areas in Lanka. According to reports, they are embracing each other while simulating sexual activity with their male partners, all while partially dressed.

Homosexuality and human history

Prior to the 13th century CE, Indian sexual customs exhibited greater levels of tolerance. The variances observed in Indian viewpoints regarding homosexuality can be comprehensively elucidated by examining the matter across distinct temporal epochs. According to historical accounts, the initial literature to examine sexual dynamics through a scientific lens originated in India, and the nation was instrumental in shaping perspectives on sexuality. India has been recognised for its contribution to the philosophical discourse on attitudes towards sexuality.

The Kamasutra is considered a distinctive characteristic of the liberal Hindu tradition. The Kamasutra is a Sanskrit manuscript that was authored by Sage Vatsyayana during the 2nd century CE, and it served to establish conventions for sexual conduct in India. Kama, also known as desire, is among the four purusharthas or objectives of a Hindu's life. The triad of Dharma, Artha, and Moksha constitutes the three remaining freedoms. Dharma refers to one's moral duty or obligation, Artha pertains to the pursuit of meaning or purpose, while Moksha denotes the attainment of liberation. The sutra functions as the cohesive element. The Kamasutra is a literary work that serves as a guide for virtuous living, exploring the essence of love, domesticity, and various dimensions of the ability to experience gratification. This study delves into the theoretical and philosophical underpinnings of romantic love, as well as the origins of desire and strategies for fulfilling it. The text recognises the existence of three distinct genders, namely pums prakriti, stri prakriti, and tritiya prakriti, which correspond to male, female, and a third gender, respectively. The author delineates the techniques of fellatio employed by individuals of the third-sex (Tritiya Prakriti) male and female categories, as well as women. The category of the third sex was subjected to further classification, including subgroups such as masculine and effeminate gays and lesbians.

The city of Khajuraho, situated in central India, has attracted global attention due to the presence of numerous erotic sculptures embellishing the facades of its twenty-two temples. The Khajuraho temple complex was erected during the reign of the Rajput Chandela dynasty between the years 950 and 1050 CE. The construction of a significant number of temples took place during the reigns of Hindu rulers Yasovarman and Dhanga. The Khajuraho temples were erected with the purpose of commemorating various facets of Indian culture, which encompassed the theme of sexuality. The city of Khajuraho is characterised by a paradoxical nature, as it is both highly endorsed by international tourists and Indian urban elites as the quintessential Kamasutra Temple, while simultaneously facing widespread censure for its perceived pornographic content and violation of traditional Indian values. The contradictions and intricacies arising from the conservative administration of India endorsing tourism through sexually suggestive imagery in a society deeply rooted in tradition are readily apparent. During the initiation of adolescents into adulthood, they were instructed that sexual pleasure, including same-sex love, was regarded as an art form, a constructive manifestation of love, and a means of achieving sublimation and spiritual transcendence.

The Surya Devalaya, a sun temple constructed in the thirteenth century and located in Konark, eastern Orissa, exhibits imagery that is analogous to that of the Khajuraho temple. The Sun Temple is a Hindu place of worship that venerates the Sun God, featuring external sculptures that depict amorous motifs from the Kama Sutra. The temples of Puri and Tanjore contain depictions of homosexual lovers in an explicit manner. The Rajarani Temple in Bhubaneswar features a sculpture portraying a sexual act between two female figures. The Ranakpur Temple, which is situated in Pali, Rajasthan, is devoted to the veneration of Jain Tirthankara Rishabhanatha. This temple serves as a notable exemplar of the cultural and artistic contributions made by adherents of both the Hindu and Jain faiths towards the advancement of globally recognised centres of religious veneration, particularly with regard to their depictions of eroticism. The exterior of the temple premises and its adjacent temples are adorned with sculptures of dancing nymphs that are intended to evoke a sense of sensuality. The murals adorning the walls of the temple portray various sexual acts and rituals.

This visual evidence serves to refute the assertion that homosexuality has never been present in Indian culture. In addition, the aforementioned depictions of an individual's sexual drive, along with their endeavours to regulate such conspicuous manifestations of sensuality, caused a state of surprise among the British settlers. Hence, apart from prohibiting "deviant" sexual practises, the British settlers also influenced the Indian populace's perception of sexuality. Moreover, they introduced Western ethical principles to India.

Homosexuality and Islam in India

While the Quran does not explicitly prescribe a punishment for homosexuality, the Islamic legal system, known as Sharia, typically mandates the death penalty for engaging in sodomy. This is based on the teachings of Muhammad as recorded in his hadith and the testimony of his companions. In Muslim societies, homosexuality is prohibited due to the Islamic perspective that regards any sexual activity outside of marriage as illegitimate. The absence of references to same-sex love in ancient and early mediaeval Indian writings is notable. However, the advent of Islamic culture in India brought about a significant body of literature on same-sex relationships. The advent of Islam in India can be traced back to the military campaign of the Muslim ruler Muhammad Qasim in 753 AD. However, it was during the mediaeval period that the establishment of the Delhi Sultanate led to the consolidation of the Islamic faith in India.

Numerous historical texts, such as the Tarikh-e-Firozshahi, provide comprehensive descriptions of the romantic relationship between Ala ud-din Khilji, a Turco-Afghan emperor of the Khalji dynasty that governed the Delhi Sultanate, and Malik Kafur. During his reign, Khilji purportedly maintained a harem consisting of approximately 50,000 bearded individuals at its peak. After successfully conquering Gujarat, the individual in question developed a strong attraction towards Kaif's effeminate charm, ultimately leading to the purchase of the slave for a sum of one thousand dinars. Kafur strategically leveraged Khilji's emotional attachment to him, ultimately achieving promotion to the esteemed position of Malik Naib, or deputy ruler. Zahir-ud-din Muhammad Babur, the progenitor of the Mughal Empire, was known to have experienced romantic inclinations towards individuals of the same gender.

Mahmud of Ghazni and the Mughal Emperor Babur, both of whom had extensive stays in Afghanistan, are recognised for their preference for adolescent male companions and limited attention to women, except for their role in territorial expansion. As per Babur's personal memoirs, there is a notable instance where he expresses a strong infatuation towards an individual, which occurred when he encountered a male figure in a marketplace.

“In those leisurely days, I discovered in myself a strange inclination. I am maddened and afflicted for a boy in the camp-bazar, his very name, Baburi, fitting in. I had no inclination for anyone, let alone love and desire, based on hearsay or experience; I had not heard, I had not talked. From time to time, Baburi used to come to my presence, but out of modesty and bashfulness, I could never look straight at him; how then could I make conversation (ikhtilat) and recital (hikdyat)? In my joy and agitation, I could not thank him (for coming); how was it possible for me to reproach him for going away? What power had I to command the duty of service to myself?”

“One day, during that time of desire and passion, when I was going with companions along a lane and suddenly met him face to face, I got into such a state of confusion that I almost went right off. To look straight at him or to put words together was impossible. With a hundred torments and shame, I went on." (Ref: Baburnama, Vol. 1, pg 120).

The art of the Mughal era was characterised by a vibrant sensuality and a more equitable outlook on sex and sexuality compared to the previous century. The "Jahangirnama" or the "Tuzk-e-Jahangir," an autobiographical account of the Mughal Emperor Jahangir, provides insights into the role and status of eunuchs in the empire. Niccolo Manucci, a Venetian historian, documented his travels to the Mughal court during the reign of Shah Jahan in his work titled "Story of Mogor or Mogul India." In the seventeenth century, while journeying to the Mughal court, Francisco Pelsaert, a Dutch merchant, made a significant observation regarding the influential role of eunuchs, who are commonly referred to as individuals belonging to the third gender, within the imperial family. As per Pelsaert's account, this realisation constituted a significant moment of insight. The journal entries indicate that the individual in question enjoys the luxuries and privileges typically associated with the aristocratic class. These include access to high-quality horses for transportation, the assistance of male and female slaves for domestic and other tasks, and attire that is comparable in quality to that of the monarch. For a considerable duration, foreign travellers and historians have documented the elevated status of eunuchs in the Mughal Empire.

The presence of eunuchs in the Islamic court has been a longstanding tradition, which persisted when Islamic monarchs established their rule in Hindustan (India). The Khawaja Saras, commonly referred to as Eunuchs, held significant sway in each of the Islamic dynasties. In order for an emperor to establish a harem, it was necessary to have eunuchs present as protectors and guardians. The aforementioned practise was a tradition that was adhered to by every monarch, spanning from the Sultanate era to the Mughal period. A significant proportion of the enslaved population were castrated males, commonly referred to as eunuchs. During the Mughal period, eunuchs were referred to as Khawaja Saras or Nazirs, depending on their position in the court. During the reign of Emperor Akbar, the Mughal administration system witnessed the ascension of several eunuchs to the prestigious ranks of Mansabdars, wherein they served as military commanders and even provincial governors.

British Colonialism and Anti-Homosexuality Legislation

Hijra and companions in Eastern Bengal in 1860
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The ramifications of colonialism have been extensively explored in numerous scholarly works. The establishment of colonialism resulted in the implementation of political institutions that were deemed inefficient, the delegation of power to local chiefs and notables, and the introduction of authoritarian modes of governance. The argument has been posited that the decline of indigenous economies, as well as the loss or destruction of intangible cultural assets such as traditional knowledge and intellectual property, can be attributed to Western colonialism.

Undoubtedly, India stands out as the most successful colonial endeavour in the imperial legacy of England. During the 18th and 19th centuries, British India emerged as a hub for imperial experimentation, cultural exploration, and Orientalist scholarship, owing to its abundant natural resources and robust trade routes. British colonisers and other imperial forces employed diverse ideological and political approaches to sustain their dominance during their two-century-long occupation, contingent upon the specific circumstances of the colonial era.

The curtailment of LGBT rights in colonial societies stands out as a significant and ominous inheritance of Britain's imperial history. Commencing in 1860, the British Empire enforced a standardised collection of regulations across its colonies, which were patterned after the colonial laws of India and Queensland. The aforementioned laws imposed stringent penalties on same-sex sexual encounters between males, with a sentence of life imprisonment instead of capital punishment. As will be demonstrated in the subsequent section, the British not only implemented these restrictions, but also impeded the potential for liberalisation and the revocation of said legislation.

Fanatical purity campaigns propelled sexual politics in Britain, which were inextricably linked to those in colonies. The colonialists were fearful of the fact that the members of the military and colonial administrators, especially those without spouses, would engage in sodomy. The Indian Penal Code (IPC) was established by the British Empire in order to both correct and Christianize "native" customs while also shielding Christians from "corruption". Section 377 of the IPC, for example, states:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to a fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The term "carnal intercourse against the order of nature" lacks a precise definition, yet it has been construed as a transgression that includes anal and oral sex, and occasionally, other non-reproductive sexual activities, such as mutual masturbation. This interpretation has expanded the scope of the offence, subsuming these acts under the umbrella of the unnatural offence. The Indian Penal Code (IPC) is considered as the pioneering and all-encompassing codified criminal legislation that was promulgated within the British Empire.

The IPC, in conjunction with the Queensland Penal Code of 1899 (QPC), established a standard for British colonial legal systems, which were subsequently transplanted to and enforced in various other British colonial territories across Asia and Africa. Furthermore, colonial legislators and legal experts implemented such regulations without any form of discussion or cultural consultation with the aim of strengthening imperial governance. The aim was to impose criminal sanctions on individuals identifying as homosexuals due to the perception that the prevailing societal norms failed to penalise deviant sexual behaviour. Section 377 has been regarded as a paradigmatic legislation in various aspects. The colonial powers endeavoured to establish these standards with the aim of restructuring Indian society and safeguarding their populace from immoral conduct. The Indian populace was influenced by the British anti-homosexuality ideology, which was propagated through anti-homosexuality laws, resulting in a widespread perception that homosexuality was incongruous with Indian cultural and moral norms. Tharbans Mukhia, a well-known historian, asserts that understanding why the British made homosexual sex illegal requires knowledge of Indian history. He goes on to say,

“The British brought their own rules to India, including Section 377, which banned homosexuality and made it a criminal act. This law was enforced by them, but it didn’t conform to India’s attitude toward homosexuality. It was more to do with their Christian belief systems. "

Conclusion and Way Forward

The adverse ramifications of Britain's imperial history have had a detrimental impact on the liberty and entitlements of LGBTQIA+ individuals globally. The responsibility for the present state of this particular matter seems to rest primarily with the British Empire. During the period of colonisation, the imposition of penal statutes that discriminated against homosexuality had a significant impact on the societies that were colonised by the colonisers. This occurred despite the fact that indigenous cultures did not share the same views on the subject.

The repeal of Section 377 of the Indian penal code was undertaken with the aim of mainstreaming sexual orientation and advancing parity for the LGBTQIA+ community. The basis of our societal progress is rooted in educational institutions, highlighting the importance of fostering open and candid dialogue surrounding sexuality and gender interpretation. Consequently, educators and facilitators are required to promote dialogues that provide students with a platform to engage in discourse pertaining to their surroundings. The integration of LGBTQIA+ topics into the elementary school curriculum is of great significance. The current state of our education system has resulted in a situation where primary school educators may lack the necessary knowledge to engage in discourse pertaining to the LGBTQIA+ community.

It is imperative for educators to shift away from conventional pedagogical approaches and perspectives. The prohibition of socially constructed practises that govern the classification of gender is imperative. The school routine encompasses a multitude of active and passive factors that serve to uphold heteronormativity within the educational setting. Incorporating a curriculum that emphasises LGBTQIA+ topics can foster a secure educational environment, ultimately leading to a metamorphosis in students' self-concept. The inclusion of sexuality education in all educational institutions in India would enhance students' comprehension of gender stereotypes and family diversity.

It is imperative to provide education to the wider community regarding the significant contributions made by individuals belonging to the LGBTQIA+ community in pre-colonial religious and cultural history. It is imperative to challenge the limitations imposed by the Victorian era and the British ideologies of "binary separateness" and "fixed unchangeability." Recognising and honouring the historical significance of homosexuality in India has the potential to foster a sense of identity within the LGBTQIA+ community in India. This will also facilitate the dispelling of erroneous beliefs among Indian society, which perceives homosexuality as a cultural import from the West. Contrary to popular beliefs, homosexuality is not in opposition to our cultural values and traditions. Moreover, the aforementioned incidents serve as evidence of the existence and recognition of the LGBTQIA+ community in India prior to the arrival of the British. The available historical and mythological records indicate that homosexuality was not criminalised in ancient India and was widely embraced by the populace. It is imperative to educate the younger generation that a balanced amalgamation of masculine and feminine energies is the most efficacious. Furthermore, the diverse and multifaceted nature of sexuality is not only natural but also vital for overall well-being.

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