By: Nishtha Aggarwal

Abstract: Despite a recent shift towards greater acceptance of LGBTQ+ rights, same-sex
marriage remains illegal in India. The article examines the current legal and social landscape
surrounding the issue, as well as the activism and advocacy efforts of the LGBTQ+ community
and its allies. The article argues that the struggle for same-sex marriage in India is not only a
legal battle but also a cultural one, requiring a broader societal shift towards greater acceptance
and understanding of LGBTQ+ rights.

On September 6, 2018, the Supreme Court of India abolished Article 377 of the Indian
Constitution that criminalised same-sex intercourse in the country. Calling this consequential act
a “victory of love”, tens of thousands of LGBTQIA+ community members and allies celebrated
all over the country as they rejoiced in this new-found freedom. However, the decriminalisation
of physical intercourse back in 2018 did not bring full justice and freedom of expression to same-
sex couples all over the country, who still could not legalise their union through the institution of
marriage. At present, in April 2023, same-sex couples and LGBTQIA+ allies are fighting for the
right to same-sex marriage, as the Supreme Court is currently in the process of hearing petitions
and making a final judgement over the matter. Within the context of this ongoing debate and
discussion, this article delves into the history of same-sex marriage and homosexuality in India
in order to understand the essentiality of such an argument and trace the significance of this
hearing.

When it comes to the history of homosexuality and same-sex relationships in India, it is
evident that popular beliefs about homosexuality being an aberrance brought on by the British
and the West persisted despite the hidden but not completely unknown existence of same-sex
couples in almost all strata of Indian society. However, one does not need to look too far into
Indian mediaeval literature to find traces of same-sex love and relationships. In Same-Sex Love
in India: Readings from Literature and History, Kidwai and Vanita discovered that same-sex
relationships and romantic friendships have existed in India under a variety of circumstances
without a long history of overt persecution. These types include invisibilized relationships,
highly visible romances, and institutionalised rituals like making vows to establish fictive
kinship that will last a lifetime and be respected by the families of both spouses. There were

sophisticated discourses surrounding same-sex love in pre-colonial India, as well as the usage of
names, phrases, and codes in many languages to distinguish homo-erotic love and individuals
who were attracted to it. Additionally, they discovered evidence that male homo-erotic
subcultures were thriving in some ancient Indian cities.

Ancient and mediaeval writings provide indisputable proof that the full spectrum of
sexuality was recognised in pre-colonial India, both through literature and mythology. In
Homosexuality in India: Review of Literatures, Nityanand Tiwari talks about how the Rig Veda,
which was written around 1500 BC, describes the pre-patriarchal era when a triadic, non-binary,
and female sexuality-focused philosophical system predominated. During this time, the idea of
the yoni, which represents the womb as an endless source of energy, was valued more than the
male-female partnership. The female twins, which served as its two luminary points, and the
earth, which served as its third point, formed the triangle that served as the yoni’s glyph. Twins
or Jami are symbols of homosexuality. The Sanskrit treatise Kama Sutra, written around the 1st
and 6th centuries AD and often known as the “Aphorism on love,” is universally acknowledged
as a great, premodern text on sexuality. It paints a realistic portrait of modern sexual norms and
contains descriptions of both male and female homoerotic acts. The court of Muslim kings
practised boy love during the Middle Ages, and Urdu and Sufi poets exalted it. In his work,
Tuzuk-i-Babri (Baburnama), Baber, the first Mughal monarch of India, wrote poetically of his
relationship with the kid Baburi at Andezan. Homosexuality was open and the accepted norm in
some Pathan tribes. It was common for Muslim nawabs to retain a separate seraglio of young
boys.

How then, in the presence of such a vast and deeply-rooted culture of homosexuality, did
homophobia manage to escape into Indian culture and society? One explanation is that although
these ancient texts all recognised homosexuality and its natural presence in society, few deemed
it ideal. For instance, the Kama Sutra looks down upon the commitment of homosexual acts by
Brahmans, the hierarchically highest-order caste in Indian society. Hindu law also appears to
directly conflict with the epic and Puranic stories when it comes to the issue of ayoni, or
extravaginal sex. It frequently forbids nonvaginal sex, despite the fact that sacred myths
frequently depict heroic children emerging from such intercourse. The Mahabharata and several
other Puranas are examples of texts that frequently contain both anecdotes and precepts and, as a
result, contradict one another when discussing whether nonvaginal sex is impure or sacred.

Although these instances of opposition to homosexuality were present in bits and pieces
before, it was the British Raj that, in the painful irony of their apparent purpose of colonialism,
strengthened these ideas of conservatism around sexuality and brought their homophobic ideals
to the country. During the British colonial rule in India, there was an attempt to impose Western
ideas and values on Indian society, which included a particular view on sexuality. The Victorian-
era morality that the British brought with them was heavily influenced by Christianity, which
viewed homosexuality as sinful and immoral. As a result, the British colonial authorities
introduced laws criminalising homosexual behaviour in India. Section 377 of the Indian Penal
Code was introduced in 1861 and criminalised “carnal intercourse against the order of nature.”
This law remained in place for more than 150 years, and despite several attempts to repeal it, it
was only struck down in 2018 by the Indian Supreme Court.

The impact of this law on the LGBTQ+ community in India was devastating. It
legitimised discrimination, harassment, and violence against individuals who identify as
LGBTQ+. They were forced to live in secrecy, and any public expression of their identity or
affection was criminalised. Furthermore, the legacy of colonialism and Section 377 continued to
perpetuate homophobic attitudes and discrimination against the LGBTQ+ community in India. It
reinforced the idea that homosexuality was a Western import and not part of Indian culture,
which disregarded the existence of queer individuals and communities in Indian history and
culture.

When it comes to postcolonial views on same-sex marriage in India, it has long been
stigmatised. Marriage is typically referred to in personal laws as a sacrament and the union of
two souls between individuals of different sexes. Same-sex partnerships are seen as immoral and
against religious and cultural norms. Marriage is a private subject determined by one’s religious
beliefs, hence gay and lesbian unions are viewed as unholy. This is also reflected in a survey
conducted by CSDS-Lokniti & Azim Premji University which found only 19% out of 24,000
respondents across 12 states to be accepting of gay marriage.

Under such an atmosphere of restraint towards same-sex marriage in the country, the
Supreme Court hearing becomes more relevant than ever. Legalizing same-sex marriage in India
would have significant social and legal implications. Currently, same-sex marriage is not
recognized in India, and same-sex couples are not entitled to the same legal rights and
protections as opposite-sex couples. Legalizing same-sex marriage would grant same-sex
couples the same legal recognition and rights as opposite-sex couples, including the right to
inheritance, property rights, and social security benefits. Moreover, legalizing same-sex marriage

would promote equality and inclusivity in society, reduce stigma and discrimination against the
LGBTQ+ community, and enhance their social acceptance and recognition. It would also pave
the way for the protection of LGBTQ+ individuals from discrimination and violence and
improve their access to healthcare, education, and employment.

Although an SC hearing in favor of same-sex marriage will cause a huge uproar in both
religious and political terms in the country, it is an important step towards overall social
progress. This discussion highlights the essentiality of noting that homosexuality has been
present in Indian culture throughout history, as evidenced by various historical texts and art
forms. Thus, we need to acknowledge and celebrate the diversity of sexual orientations and
gender identities in India, rather than dismissing them as foreign or abnormal. Bringing
education about homosexuality to the forefront of the country can help change the social and
cultural attitudes towards the LGBTQ+ community, increase visibility and representation, and
promote greater acceptance and inclusion.

About the Author

Nishtha Aggarwal is a second-year Economics and Psychology student at Ashoka
University.