HistoriCity | Delhi’s place of pride in the gay rights movement in India
As this year’s pride month draws to a close let’s look back at the history of legal battles fought over the now-decriminalised Section 377
In the epic Mahabharata, most of which is set around what is considered to be the present-day National Capital Region of Delhi, we find one of the first references to a major transgender character in Indian mythology, Shikhandi, who was responsible for the death of Bhishma, the patriarch of the Kurus.
Shikhandi was born as a daughter to the king of Kashi but was brought up as a boy. Different versions of the Mahabharata proffer different stories of Shikhandi’s gender transformation, some like the Javanese version have him born as a male who later becomes a woman. The ancient epic seemingly shows more tolerance for transgenders than modern polity, despite all the social and technological progress that has been made over the last few centuries.
Section 377 was brought in 1861 when India was under British rule. This law itself was modelled on the Buggery Act of 1533 which was enacted by King Henry VIII, that banned anal intercourse with man or beast. The colonial-era law and Victorian morality instilled a rancid prejudice against transgenders, which gradually developed deep roots in both the Indian psyche and law.
The first major legal challenge to this arcane and inhumane law was brought by the Naz Foundation in the Delhi High Court in December 2001. The Foundation demanded that Section 377 of the Indian Penal Code be repealed completely and that homosexual intercourse between consenting adults be legalised.
This led to outrage and protests by mainly right-wing groups who just a few years ago, in 1998, had violently opposed the screening of the movie, Fire, which was based on a 1942 Ismat Chugtai story (‘Lihaf’) that portrayed a romantic relationship between two women.
Naz had challenged Section 377 on the grounds of it being both unconstitutional and discriminatory. Indira Jaisingh, of Lawyers’ Collective, who took up the case for Naz, said at the time, “We can't do advocacy amongst a section which is essentially criminal in the eye of the law. How do we recommend safe sex to prevent HIV-AIDs to people who are criminals in law?”
In 2004, the Delhi High Court dismissed the Naz Foundation’s petition stating that the NGO had no locus standi to file the petition. Undeterred, Naz went to the Supreme Court in 2006 and got a favourable verdict saying that it was their right to file a public interest case and directing the Delhi High Court to hear the case. In the same year, National Aids Control Organisation (NACO), which is a government organisation went to the Supreme Court for the legalisation of homosexuality.
Delhi High Court took up the case in 2006. A two-judge bench of Justice A P Shah and Justice S Muralidhar categorically agreed with the contention that 377 violates the right to equality before law and equal opportunity for homosexuals. The verdict asked the government to amend 377 to decriminalise homosexuality.
Eight years of legal battle ended with cries of joy and disbelief among gay activists and their allies across the country. But visceral opposition soon followed on the streets, led by orthodox religious Hindu, Muslim and Christian leaders.
The see-saw struggle for basic human dignity and legal rights was far from over. Petitions challenging the High Court’s verdict were filed in the Supreme Court.
In 2013, the Supreme Court reversed the gay rights movement’s hard-won progress. A two-judge bench of Justice G S Singhvi and Justice S J Mukhopadhyay heard the contention of various religious and social organisations who argued that homosexuality is against India’s cultural and religious values. The bench reversed the Delhi High Court verdict of 2009 and ruled that homosexuality is indeed a crime, and therefore Section 377 should be retained in the penal code.
Among those who opposed decriminalisation were the Delhi Commission for Protection of Child Rights, Raza Academy, yoga guru Ramdev’s follower S K Tijarawala and astrologer Suresh Kumar Kaushal.
The Supreme Court justices also stated that a “minuscule fraction of the country’s population constitutes LGBT”.
Once again, the gay rights movement was back to where it had started in 2001. In 2016, several prominent Delhi citizens including classical Indian dancer Navtej Singh Johar, hotelier Aman Nath, and journalist Sunil Mehra among others went back to the Supreme Court.
Their petition stated that Section 377 violates their and others’ rights to “sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality along with the other fundamental rights enshrined under the constitution”.
On 6 September 2018, gay rights in India received a further and hopefully final win, when a larger Supreme Court bench of five judges which included the present Chief Justice of India, D Y Chandrachud, decriminalised homosexual intercourse between consenting adults. This was a partial striking down of Section 377 as the Supreme Court upheld those provisions under 377 that pertain to non-consensual acts and sexual acts with animals.
Six years since that day, the gay rights community has remained cautious. In 2023, according to media reports the Parliamentary Standing Committee on Home Affairs recommended Section 377 be reinstated and homosexuality be recriminalised.
It is in a way fitting that the legal struggle for gay rights has played out most prominently in Delhi, a city that is dotted with many monuments and shrines revered by the transgender and queer community. The Jamali-Kamali tomb abuts the eponymous mosque in Mehrauli and is believed to be the final resting place of a 16th-century poet Shaikh Fazlullah (Jamali) and his lover Kamali, who is believed to have been queer.
Another revered shrine among the queer community is the Hijron Ka Khanqah, a 15th-century complex of 49 tombs all believed to be of Eunuchs who lived and thrived during the reign of the Lodi dynasty.
HistoriCity is a column by author Valay Singh that narrates the story of a city that is in the news, by going back to its documented history, mythology and archaeological digs. The views expressed are personal
In the epic Mahabharata, most of which is set around what is considered to be the present-day National Capital Region of Delhi, we find one of the first references to a major transgender character in Indian mythology, Shikhandi, who was responsible for the death of Bhishma, the patriarch of the Kurus.
Shikhandi was born as a daughter to the king of Kashi but was brought up as a boy. Different versions of the Mahabharata proffer different stories of Shikhandi’s gender transformation, some like the Javanese version have him born as a male who later becomes a woman. The ancient epic seemingly shows more tolerance for transgenders than modern polity, despite all the social and technological progress that has been made over the last few centuries.
Section 377 was brought in 1861 when India was under British rule. This law itself was modelled on the Buggery Act of 1533 which was enacted by King Henry VIII, that banned anal intercourse with man or beast. The colonial-era law and Victorian morality instilled a rancid prejudice against transgenders, which gradually developed deep roots in both the Indian psyche and law.
The first major legal challenge to this arcane and inhumane law was brought by the Naz Foundation in the Delhi High Court in December 2001. The Foundation demanded that Section 377 of the Indian Penal Code be repealed completely and that homosexual intercourse between consenting adults be legalised.
This led to outrage and protests by mainly right-wing groups who just a few years ago, in 1998, had violently opposed the screening of the movie, Fire, which was based on a 1942 Ismat Chugtai story (‘Lihaf’) that portrayed a romantic relationship between two women.
Naz had challenged Section 377 on the grounds of it being both unconstitutional and discriminatory. Indira Jaisingh, of Lawyers’ Collective, who took up the case for Naz, said at the time, “We can't do advocacy amongst a section which is essentially criminal in the eye of the law. How do we recommend safe sex to prevent HIV-AIDs to people who are criminals in law?”
In 2004, the Delhi High Court dismissed the Naz Foundation’s petition stating that the NGO had no locus standi to file the petition. Undeterred, Naz went to the Supreme Court in 2006 and got a favourable verdict saying that it was their right to file a public interest case and directing the Delhi High Court to hear the case. In the same year, National Aids Control Organisation (NACO), which is a government organisation went to the Supreme Court for the legalisation of homosexuality.
Delhi High Court took up the case in 2006. A two-judge bench of Justice A P Shah and Justice S Muralidhar categorically agreed with the contention that 377 violates the right to equality before law and equal opportunity for homosexuals. The verdict asked the government to amend 377 to decriminalise homosexuality.
Eight years of legal battle ended with cries of joy and disbelief among gay activists and their allies across the country. But visceral opposition soon followed on the streets, led by orthodox religious Hindu, Muslim and Christian leaders.
The see-saw struggle for basic human dignity and legal rights was far from over. Petitions challenging the High Court’s verdict were filed in the Supreme Court.
In 2013, the Supreme Court reversed the gay rights movement’s hard-won progress. A two-judge bench of Justice G S Singhvi and Justice S J Mukhopadhyay heard the contention of various religious and social organisations who argued that homosexuality is against India’s cultural and religious values. The bench reversed the Delhi High Court verdict of 2009 and ruled that homosexuality is indeed a crime, and therefore Section 377 should be retained in the penal code.
Among those who opposed decriminalisation were the Delhi Commission for Protection of Child Rights, Raza Academy, yoga guru Ramdev’s follower S K Tijarawala and astrologer Suresh Kumar Kaushal.
The Supreme Court justices also stated that a “minuscule fraction of the country’s population constitutes LGBT”.
Once again, the gay rights movement was back to where it had started in 2001. In 2016, several prominent Delhi citizens including classical Indian dancer Navtej Singh Johar, hotelier Aman Nath, and journalist Sunil Mehra among others went back to the Supreme Court.
Their petition stated that Section 377 violates their and others’ rights to “sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality along with the other fundamental rights enshrined under the constitution”.
On 6 September 2018, gay rights in India received a further and hopefully final win, when a larger Supreme Court bench of five judges which included the present Chief Justice of India, D Y Chandrachud, decriminalised homosexual intercourse between consenting adults. This was a partial striking down of Section 377 as the Supreme Court upheld those provisions under 377 that pertain to non-consensual acts and sexual acts with animals.
Six years since that day, the gay rights community has remained cautious. In 2023, according to media reports the Parliamentary Standing Committee on Home Affairs recommended Section 377 be reinstated and homosexuality be recriminalised.
It is in a way fitting that the legal struggle for gay rights has played out most prominently in Delhi, a city that is dotted with many monuments and shrines revered by the transgender and queer community. The Jamali-Kamali tomb abuts the eponymous mosque in Mehrauli and is believed to be the final resting place of a 16th-century poet Shaikh Fazlullah (Jamali) and his lover Kamali, who is believed to have been queer.
Another revered shrine among the queer community is the Hijron Ka Khanqah, a 15th-century complex of 49 tombs all believed to be of Eunuchs who lived and thrived during the reign of the Lodi dynasty.
HistoriCity is a column by author Valay Singh that narrates the story of a city that is in the news, by going back to its documented history, mythology and archaeological digs. The views expressed are personal