“Progress has perhaps been inconsistent, non-linear, and at a less than ideal pace but progress there has been. We must recognize the vital role of Indian society in contributing to the evolving social mores. The evolution may at times seem imperceptible, but surely it is.”
On 17th October, the Indian Supreme Court delivered a historic judgment on the recognition of Same Sex Marriage. The Indian Supreme Court refused to recognize the same sex marriage.
There was a bench of five judges, two judges Justice Dhananjay Yashwant Chandrachud who is also current CJI of India, and Justice Kishan Kaul gave their separate judgment in favor of Same Sex Marriage, but, the other three Judges, Justice Ravindra Bhatt, Justice Narsimha, and Justice Hima kohli pronounced their judgments against the recognition of Same Sex Marriage.
In this case, there were 21 Petitions, the grievance of the petitioners (who were members of the LGBTQIA+ community) was not that society discriminates against them in an informal (and invisible) manner. That is a secondary but an equally important stage of how discrimination pans out against a marginalised class.
The petitioners claimed that they are discriminated on a more formal (and visible) level. The petitioners contended that the State through the operation of the current legal regime discriminates against the queer community by impliedly excluding the queer community from a civic institution: marriage.
The petitioners invoked the equality code of the Constitution to seek legal recognition of their relationship with their partner in the form of marriage. The petitioners did not seek exclusive benefits for the queer community, which are unavailable to heterosexuals. They claim that the State ought to treat them on par with the heterosexual community.
While analysing the case in his judgment, Justice DY Chandrachud emphasized that queerness is not an urban elite idea, but it is a natural phenomenon. DYC discussed the idea of queerness as follows:
Queerness is a natural phenomenon which is known to India since ancient times
The question of whether homosexuality or queerness is unnatural is no longer res integra, in view of the decision in Navtej Singh Johar v. Union of India (2018) where Apex Court held that it is innate and natural. The contention of the Union of India that heterosexual unions precede law while homosexual unions do not cannot be accepted in view of the decision in Navtej Singh Johar (supra) where this Court held that queer love has flourished in India since ancient times.
The respondents have also averred that homosexuality or gender queerness is not native to India. This contention does not hold any water. In India, persons with a gender queer identity who do not fit into the binary of ‘male’ and ‘female’ have long been known by different names including hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbis.
In fact, the term ‘transgender person’ as it is understood in English or the ‘third gender’ does not always fully or accurately describe the gender identity of those who are known by some of these terms. Additionally, the social structure of the communities of transgender persons in India is unique and does not mirror ‘western’ structures. It is native to our country. The judgment of this Court in NALSA v. UOI (2014) also explored the presence of the transgender identity and other forms of gender queerness in Indian lore.
“the term ‘transgender person’ as it is understood in English or the ‘third gender’ does not always fully or accurately describe the gender identity of those who are known by some of these terms. Additionally, the social structure of the communities of transgender persons in India is unique and does not mirror ‘western’ structures. It is native to our country.”
In With Respect to Sex: Negotiating Hijra Identity in South India, Gayatri Reddy documents the different manifestations of kinship in hijra communities, including the guru-chela (or teacher-disciple) relationship, the mother-daughter relationship, and the ‘jodi’ (or bond) with a husband. She describes how many hijras enter into unions with men, who are referred to as their ‘pantis.’ These unions span over many months or many decades, depending on the couple in question.
Many men in such unions have made their natal families aware about their relationship with their partner, and in some cases, the hijras would sometimes meet their partner’s natal family. They sometimes referred to their relationship as one of ‘marriage.’ Men also assaulted their partners and displayed other violent tendencies. Some hijras maintained contact with their biological family, most notably the mother.
Although many hijras were in romantic, long-lasting partnerships with men or in touch with their natal family, they considered other hijras as constituting their family as opposed to their ‘pantis’ or their biological families. In many communities, hijras are customarily invited to auspicious events (such as the birth of a child) to bless the family in question.
Like the English language, some English words employed to describe queer identities may have originated in other countries. However, gender queerness, transgenderism, homosexuality, and queer sexual orientations are natural, age-old phenomena which have historically been present in India. They have not been ‘imported’ from the ‘west.’ Moreover, if queerness is natural (which it is), it is by definition impossible for it to be borrowed from another culture or be an imitation of another culture.
“Gender queerness, transgenderism, homosexuality, and queer sexual orientations are natural, age-old phenomena which have historically been present in India. They have not been ‘imported’ from the ‘west.’ Moreover, if queerness is natural (which it is), it is by definition impossible for it to be borrowed from another culture or be an imitation of another culture.”
Queerness is not urban or elite
The respondents, including the Union of India, have contended that homosexuality and queer gender identities or transgenderism are predominantly present in urban areas and amongst the elite sections of society. They assert that variations in gender and sexual identity are largely unknown to rural India and amongst the working classes.
Nothing could be further from the truth. While they may not use the words “homosexuality,” “queer,” “lesbian,” “gay” or any other term which populates the lexicon of English-speaking persons, they enter into unions with persons of the same sex as them or with gender queer persons; these unions are often long-lasting, and the couple performs a marriage ceremony.
The incidence of queerness amongst the rural and working-class communities has been documented in academic scholarship as well as newspaper reports. In the absence of evidence aliunde, the details narrated in newspaper reports are not facts which are proved in terms of the Indian Evidence Act 1872. However, in cases (such as the present one) which require this Court to examine social phenomena and their incidence, newspaper reports serve as a useful tool in the exercise of illuminating social realities.
This Court need look no further than the petitioners in this case to illustrate the point that queerness is neither urban nor elite:
a. One of the petitioners grew up in Durgapur, West Bengal and Delhi and states that she came to terms with her sexuality when she was an adult. Another petitioner in the same case grew up in Varanasi, Uttar Pradesh and states that she knew that she was a lesbian from a young age;
b. One of the petitioners hails from Muktsar, Punjab and happens to be OBC. Another petitioner in the same case happens to be Dalit. They come from working class backgrounds;
c. Another petitioner was born in Mumbai to Catholic parents. She attempted to die by suicide and later had to beg on the streets in order to survive;
d. Some petitioners before this Court are transgender persons and activists. One of them is a public personality – Akkai Padmashali. She hails from a non-English speaking, working class background. At a young age, she left home. She worked as an assistant in a shop selling ceramics but quit because she unable to hide her true gender identity.
Circumstances forced her to become a sex worker to sustain herself. Later, she was awarded the Karnataka Rajyotsava Award, Karnataka’s second highest civilian award, for her contribution to social service.
e. Yet another petitioner who is a transgender person was born in a family of farmers who grew coconuts and betel leaves. She later worked in a factory.
In her case, too, circumstance forced her to become a sex worker. She is now a social activist; and
f. One of the petitioners is a lesbian who lives in Vadodara, Gujarat.
Ruth Vanita, an academician, studied the history of queer marriage in India in her scholarly works. She narrates that she married a Jewish woman in 2000 with both Hindu and Jewish ceremonies.
Her book titled Love’s Rite: Same-Sex Marriage in India and the West records numerous instances of queer unions and partnerships in India:
a. Two young women who were classmates fell in love. One of them underwent a sex reassignment surgery in 1989. The two then married each other but one of their fathers (a wireless operator) opposed their union. He filed a complaint stating that the partner of his child had abducted her. When the young woman was produced in court, she stated that she wished to live with her husband. She was then released and the couple proceeded to live together;
b. In 1993, two women in Faridabad married each other in a Banke Bihari temple, with a priest officiating;
c. Two men, one Indian and the other American, married according to Hindu rites in a ceremony in New Delhi in 1993;
d. In 2004, a twenty-four year old Dalit woman and a twenty-two year old Jat woman travelled to Delhi and performed the rites of marriage in a temple. Their families opposed the union;
e. Two young women, whose parents were construction workers in Bhopal, Madhya Pradesh, lived in a slum. One of them was employed as a peon in a school and the other was unemployed. They ran away in 2004 and are reported to have told the police that they would live together regardless of any attempts to separate them;
f. Also in 2004, a twenty-one year old Christian woman and a twenty-three year old Hindu woman from a southern state in India declared their life-long commitment to one another after a tabloid alleged that they were lesbians;
g. Two young Muslim men (one aged twenty-two and the other aged twentyeight) married in Ghaziabad, Uttar Pradesh. Their friends and family physically assaulted them for marrying but it was reported that they continued to intend to live together; and
h. Two nurses in Patel Nagar, Delhi met as students, fell in love, declared that they were life partners, and decided to live together. At the time the book was written, they had shared a home for fifteen years. Their neighbours were aware of their relationship and were unfazed by it.
In addition, other sources record varied instances of persons entering into atypical unions or expressing their homosexuality or gender identity:
a. Two women who happened to be Adivasi married according to the customs of their tribe, in a small village in Koraput district, Orissa;
b. A woman who was the daughter of a government school teacher and a woman whose father was a labourer garlanded each other in Hamirpur district, Uttar Pradesh and sought to register their marriage at the local subregistrar’s office. They each divorced their husbands before entering into this union;
c. Two women from Kanpur travelled to Delhi to marry each other; and
d. Young, gay men in a small town called Barasat in West Bengal expressed their desire to be a part of the queer community. One of them worked in a clerical job.
The AIDS Bhedbhav Virodhi Andolan (the AIDS Anti-Discrimination Movement) released a citizen’s report on the status of homosexuality in India, titled ‘Less Than Gay’ in 1991. The report discusses some of the arguments which were put forth more than three decades ago. In its attempt to address whether homosexuality is a ‘western’ concept or is restricted to the socioeconomically privileged classes, it asserts that the queer community is not a “coherent, easily definable group.”
The report details the various lived experiences of gay men and lesbian women, information regarding which was collected by interviewing them. It tells the stories of a lesbian hostel warden, a gay teacher at a government polytechnic college in Madhya Pradesh, an auto-rickshaw driver in Pune, two male municipal sweepers in Mumbai who lived together and loved each other, and a gay man from a slum in Delhi.
Ruth Vanita also documents attempted suicides and suicides arising from the difficulties faced by persons in queer relationships:
a. In 1980, Jyotsna and Jayshree died by suicide after they jumped in front of a train in Gujarat. In a letter they left behind, they explained that they chose to die because they could not endure having to live apart after their marriages to men;
b. Gita Darji and Kishori Shah died by hanging in a village in Gujarat, in 1988. They were nurses and worked in a hospital; and
c. In January 2000, two young women named Bindu and Rajni were stopped from eloping. A few days later, they jumped into a granite quarry in Kerala and died. They each left behind notes to their families in which they explained that they wished to die because it was impossible for them to live together.
In Loving Women: Being Lesbian in Unprivileged India, Maya Sharma gives an account of various persons (most of whom are women) in same-sex or queer relationships. The book was written after detailed interviews with its subjects, and focuses on working class persons.
The author explains that one of the purposes of the book was to:
“… dispel the myth that lesbians in India were all urban, Westernised and came from the upper and middle classes.”
The author also highlights that public discourse has not created space for the voices and experiences of persons from the LGBTQ community who also belong to marginalized communities:
“… the lives of most of our subjects are equally distant and alienated from upperclass, urban Indian as well as all Western representations of homosexuality, and their personal struggles, which cannot be separated from their socioeconomic struggles and traditional contexts, are largely unmirrored and therefore remain largely unknown.”
The book variously gives accounts of women in queer relationships from different religions and communities, hailing from different parts of the country. They or their family members worked as domestic workers, factory workers, construction labourers, and Home Guards, amongst other professions.
The discussion in this segment has not scratched the surface of the rich history of the lives of LGBTQ persons in India, which continue into the present. Yet, even the limited exploration of the literature and reportage on the subject makes it abundantly clear that homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities.
The discussion in the preceding paragraphs reveals the diversity of the queer population. People may be queer regardless of whether they are from villages, small towns, or semiurban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English-speaking man with a white-collar job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works in a farm in an agricultural community.
Persons may or may not identify with the labels ‘queer,’ ‘gay,’ ‘lesbian,’ ‘trans,’ etc. either because they speak languages which are not English or for other reasons, but the fact remains that many Indians are gender queer or enter into relationships with others of the same sex. In the words of a person (assigned female at birth) who worked at a factory in Ajmer:
“You ask if I have heard the word “lesbian”. No, I have not heard it. … I consider myself a male. I am attracted to women. Why create categories, such deep differences between male and female? Only our bodies make us different. We are all human beings, aren’t we? … When a human being is born, he does not know anything. He is told, “These are your parents, sisters, father and brothers”.
Similarly we are told, “You are boys, and you are girls”. But I say I am a man. I choose to be one. Despite our physical differences, we can be who we want to be and do what we want to do. … But the final analysis, we are all the same, we are all human beings, we are all equal, regardless of what kind of bodies we have. This common factor should be considered, not the ways in which we are different.”
“Persons may or may not identify with the labels ‘queer,’ ‘gay,’ ‘lesbian,’ ‘trans,’ etc. either because they speak languages which are not English or for other reasons, but the fact remains that many Indians are gender queer or enter into relationships with others of the same sex.”
To imagine queer persons as existing only in urban and affluent spaces is to erase them even as they exist in other parts of the country. It would also be a mistake to conflate the ‘urban’ with the ‘elite.’ This renders invisible large segments of the population who live in urban spaces but are poor or otherwise marginalized. Urban centres are themselves geographically and socially divided along the lines of class, religion, and caste and not all those who live in cities can be termed elite merely by virtue of their residence in cities.
Finally, it is essential to recognize that expressions of queerness may be more visible in urban centres for a variety of reasons. For one, cities may afford their inhabitants a degree of anonymity, which permit them to live their true lives or express themselves freely. This may not always be possible in smaller towns or villages, where the families or communities of queer persons may subject them to censure and disapprobation, or worse.
The experiences of queer persons may also be more visible in urban spaces because such persons have greater access to the various resources required to make one’s voice heard. This only means that the marginalized are yet to be heard when they speak and not that they do not exist. This is not to say that society does not inflict violence upon the LGBTQ community in cities but only to indicate potential reasons for their increased visibility in cities.
In conclusion, queerness is not urban or elite. Persons of any geographic location or background may be queer.
“Cities may afford their inhabitants a degree of anonymity, which permit them to live their true lives or express themselves freely. This may not always be possible in smaller towns or villages, where the families or communities of queer persons may subject them to censure and disapprobation, or worse.”
The rise of Victorian morality in colonial India and the reasons for the re-assertion of the queer identity
In pre-colonial times, the Indian subcontinent was home to a diverse population with its own, unique understanding of sexuality, companionship, morality and love. Stories, history, myths, and cultural practices in India indicate that what we now term ‘queerness’ was present in pre-colonial India. It would not be a faithful description of the times to say that queerness was “accepted” by the populace.
Rather, society did not often view (many manifestations of) the queer identity as something that required acceptance to begin with because it formed a part of ordinary, day-to-day life, similar to the heterosexual or cisgender identities. This was true for many parts of the country at many points of time, though perhaps not everywhere and at all times.
This is not to suggest that society did not inflict any violence upon members of the LBGTQ community in pre-colonial times. Rather, it is to highlight that current beliefs, attitudes, and practices which are hostile to the LGBTQ community are not necessarily natural successors of the past.
The native way of life gradually changed with the entry of the British, who brought with them their own sense of morality. It was not their morality alone that they brought with them but also their laws. This Court discussed the legal legacy of the colonizers at length in National Legal Services Authority (supra) and Navtej Singh Johar (supra). To recapitulate, Section 377 of the IPC inter alia criminalized queer sexual acts and in so doing, imposed the morality of the British on the Indian cultural landscape.
The British also enacted the Criminal Tribes Act 1871 to provide for the “registration, surveillance and control of certain criminal tribes and eunuchs.” It permitted the government to declare a group of persons a “criminal tribe” if it was of the opinion that the group was “addicted to the systematic commission of non-bailable offences.”
Part II of the Criminal Tribes Act regulated transgender persons (which it referred to as ‘eunuchs’) and subjected them to enormous indignity inter alia by permitting the government to medically examine them, providing for harsh penalties if they dressed “like a woman” or danced or played music, preventing them from making gifts, and rendering their wills invalid.
Although the Criminal Tribes Act was repealed by the government after independence, its underlying prejudices seem to continue in various central and state enactments on ‘habitual offenders.’
The criminalization of the LGBTQ community and their resultant prosecution and conviction under these laws coupled with the violence enabled by these laws drove large sections of the community underground and into the proverbial closet. Society stigmatized any sexual orientation which was not heterosexual and any gender identity which was not cisgender. Persons with an atypical gender identity and/or sexual orientation were therefore compelled to conceal their true selves from the world.
Their presence in the public sphere gradually shrunk even as homophobia and transphobia flourished. Despite their alienation from mainstream society, many queer persons continued to live their lives in ways that were visible to the public eye. Indeed, many of them (such as hijras) often did not have a choice but to do so. Others expressed their sexual orientation only in the comfort of their homes, in the presence of their families and friends.
Yet others led double lives – they pretended to be heterosexual in public and while with their families and made their sexual orientation known to a select few persons, who were often themselves of an atypical sexual orientation. Some people entered into ‘lavender marriages’ or ‘front marriages’ which are marriages of convenience meant to conceal the sexual orientation of one or both partners.
It is evident that it is not queerness which is of foreign origin but that many shades of prejudice in India are remnants of a colonial past. Colonial laws and convictions engendered discriminatory attitudes which continue into the present. Those who suggest that queerness is borrowed from foreign soil point to the relatively recent increase in the expression of queer identities as evidence of the fact that queerness is ‘new,’ ‘modern,’ or ‘borrowed.’ Persons who champion this view overlook two vital details.
-The first is that this recent visibility of queerness is not an assertion of an entirely novel identity but the reassertion of an age-old one.
-The second factor is that establishment of a democratic nation-state and the concomitant nurturing of democratic systems and values over six decades has enabled more queer persons to exercise their inherent rights.
An environment has been fostered which is conducive to queer persons expressing themselves without the fear of opprobrium. This Court also recognizes that queer persons have themselves been crucial in the project of fostering such an environment.
“Colonial laws and convictions engendered discriminatory attitudes which continue into the present. Those who suggest that queerness is borrowed from foreign soil point to the relatively recent increase in the expression of queer identities as evidence of the fact that queerness is ‘new,’ ‘modern,’ or ‘borrowed.’”
The constitutional guarantees of liberty and equality have gradually been made available to an increasing number of people. This seems to be true across the world – the global turn towards democracy has created the conditions for the empowerment of queer people everywhere.
Progress has perhaps been inconsistent, non-linear, and at a less than ideal pace but progress there has been. We must recognize the vital role of Indian society in contributing to the evolving social mores. The evolution may at times seem imperceptible, but surely it is.
Who is an Indian and what practices are Indian?
The tenor of the arguments put forth by some of the respondents implied that a union between two persons of the same sex is not Indian. To determine whether this contention is correct, it is necessary to query when something or someone is ‘Indian.’
This question is all the more important in a country as diverse as ours, with twenty-eight States, eight Union Territories, a population of more than one billion persons, twenty-two languages recognized by the Constitution and scores more which are spoken by its people, at least eight religions, tribal and non-tribal populations, and varying cultures which are sometimes at odds with one another.
A thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes place here, or is practised by Indian citizens. Something which is Indian could be present from time immemorial or it could be a recent development. Regardless, this is not a game of numbers. The constitutional guarantee certainly does not fade based on the level of acceptability that a particular practice has achieved. Sexual and gender minorities are as Indian as their fellow citizens who are cisgender and heterosexual.
‘A thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes place here, or is practised by Indian citizens. Something which is Indian could be present from time immemorial or it could be a recent development”
Surpriya @ Supriyro Chkroborty v. Union of India (2023)
 3 Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319