Transforming landscape of the sexual minorities in India: historical constraints of current status (2009-2019)

1.3 RESULTS

We have considered many examples of queer traditions in the Indian culture coming from Hinduism. In Sikhism and Buddhism there were no obvious manifestations and references to representatives of sexual minorities and attitudes towards them, whereas Islam had some influence on the issue under study. It is important to mention that the Pakistan factor is excluded from our study, as well as the states of Jammu, Kashmir and Ladakh. If we consider the historical influence of Islam on queer part of society of India, during the Mughal Empire an official punishment for zina (unlawful intercourse) was introduced. However, as the researchers note it was practically not activated among the Hindu majority of the population of India. The practice of castration was also introduced in the Mughal period, and members of the Hindu third gender are still incorrectly described as eunuchs.

We can say that various sexual practices that deviate from the heteronomous concept existed and quite peacefully coexisted within the Hindu social system of Ancient India. This applies primarily to representatives of the third gender. Moreover, these practices were not illegal at all, in most cases. However, of course, this does not confirm the ubiquity of queer culture. Within the framework of religious cults, the queer tradition in India was very widespread. Research confirms that the vast majority of the ordinary population lived in heterosexual families (Cooper, Stoler, 1997). Despite this, our research has shown that the abundance of religious aspects directly related to queer culture is sufficient to suggest that it was a peacefully cohabiting part of the Indian culture at whole.

2. SEGREGATION OF QUEER IN INDIA

Following the overview of Indian queer traditions and Hinduism in particular, it is consistent to turn our attention next to more modern period. Specifically, in this chapter we look at the correlation between societal rejection of queer culture and the law regulating this culture. To achieve our final goal and understand the impact of the colonial period on queer culture in India, it is important to find the difference in the perception of queer culture in colonial and post-colonial periods. The law of sexual life regulation in India does not reflect the national system of values, since it was imposed from outside. Public opinion can be considered through the prism of court decisions on LGBT cases (Green, 2011). Thus, we not only reveal the different stages of the struggle for equal rights on the sexual minorities, but also analyze how much the human factor in the process of court decisions influenced the final results.

The disgust theory explains the reason of rejection on human level, how this phenomenon becomes social and then is clothed in the form of the law. The theory explains the approach to the concept of queer in general, where India is no exception, even in spite of its rather rich queer traditions explored in the previous chapter. At first, we look more carefully at the chronology of legislative changes towards regulation of LGBT communities during the period of our interest, i.e. in India of 2009-2019. Then there is an analysis of society with disgust theory, and we turn to five specific cases that demonstrate vividly the public and legislative attitude to queer behavior in India. Two of these cases are from the colonial period history and four of them are related to modern Indian history.

2.1 LEGISLATIVE CHANGES BETWEEN 2009 AND 2019

The final decision of remarkable 2018 to remove the ban on open sexual behavior in India had a long and thorny path to its humane and fair finale. Section 377 of the Indian Penal Code introduced in 1861 during the British rule of India has been moved from the dead point for the first time in 2009. The Delhi High Court decision in Naz Foundation of 2009 found Section 377 and other legal bans on private and consent same-sex relationships a direct violation of the basic rights embedded in the Constitution of India. Section 377 stated that: "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 fine," and there is an added explanation that: "Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section" (Indian Penal Code).

Kama sutra However, despite the decision made by the Delhi High Court in 2009, there were arrests of people involved in «carnal intercourses». On 23 February of 2012, the Ministry of Home Affairs expressed its opposition to the decriminalization of homosexual activity, explaining this by stating that in Indian history such relationships have always been considered inappropriate and illegal (Doniger, 2014). In response, the Central Government publicly expressed its position in support of decriminalization of LGBT communities on February 28, 2012. The Government of India has received a lot of criticism in media for the frequent change of viewpoints.

On 11 December 2013, the Supreme court revoked the Delhi High Court's decision on decriminalization of homosexuality in 2009. The Court reenacted the Section 377. This decision caused a huge outcry among liberal and progressive groups in Indian society as well as among activists and human rights fighters outside the country. The period between 2013 and 2018 was one of the most difficult for the queer community in India. Based on the 2009 decision to decriminalize homosexual behavior, there were immense number of complaints resolved and charges against members of the LGBT community were withdrawn for years up to 2016. Also, queer behavior has ceased to be considered as a clinical disease in Indian psychiatry (Jacob, 2010). The 2013 decision was also criticized from a legal and human rights perspectives.

Between 2009 and 2013, a large number of confession writings were published, especially a large contribution to the literature on this topic belongs to representatives of the third gender, Tritiya-Prakritis (Sathyanarayana, Jacob, 2014). Indian scientists and students began publishing researches on the nature of queer in Indian culture. Indian psychiatry was approaching the fateful decision to cancel conversion therapy, which was only made in February 2014. All these trends were crushed by a sudden step back in 2016.

In India, there is a government organization called Naz Foundation, which is engaged in the field of HIV/AIDS disease and sexual health of the Indian population researching. This organization that first initiated the hearing in favor of repealing Section 377 of the Indian Penal Code. The fundamental line to prove the line was the fact that section 377 in action does not help to suspend the spread of HIV infection but mostly helps it. Fear of prosecution causes people to hide symptoms of HIV infection, which consequently leads to lethal results (Doniger, 2014).

The Naz Foundation played an important role in supporting representatives of the LGBT community during the difficult period between 2013 and 2018. The Foundation tried to protect people who began to openly declare their sexual identity after the Supreme court decision in 2009, and who were at risk of charge under law after 2013. Of course, in its struggle to refute the 2013 court decision to restore the force of Section 377 the Naz Foundation pointed to the violation of basic rights of Indian citizens. The actions of the Government, which in 2013 assumed the prerogative to change the law, were particularly criticized. Since Section 377 criminalizes the sexual acts of two consenting adults, this directly violates articles 14, 15 and 21 of the Indian Constitution, which states the private rights of every citizen.

Eventually in early 2016 the Supreme Court decided to review its decision on the criminalization of queer behavior. By August 2017, there was realistic hope for legitimate freedom of sexual minorities, the High Court ruled that a person's sexual life is private, while all Indian citizens have the right to personal privacy (Narrain. 2018).

During 2018, the High Court heard several petitions regarding the issue of repealing Section 377 of the Indian Penal Code. The government has announced that it will fully refer the issue to the High Court and will not interfere. The hearing on the petition to legalize the rights of LGBT communities and repeal Article 377 began in July 2018, and on September 6, 2018, the Supreme court delivered its verdict. The court unanimously decided that section 377 is unconstitutional as it violates the basic rights to autonomy, intimacy and identity, thereby legalizing homosexuality in India (Narrain, 2018).

2.2 STIGMATIZED MINORITIES: THE DISGUST THEORY

In India, despite the decriminalization of homosexual behavior in 2018 by the Delhi High Court, the criminal statute persists in the minds of generations of Indians, serves as an excuse for prejudice in society, and also justifies the existence of sexual violence towards LGBT representatives. India as the scene of the struggle for sexual minorities rights can be contemplated in terms of the theory of disgust. Starting with the concept of disgust theory, American philosopher, Martha Nussbaum in her book «Hiding From Humanity: Disgust, Shame, and the Law», 2004 reveals the concept of disgust as a social construct that forms different types of discrimination, such as xenophobia, racism, and homophobia. Using research in cognitive psychology, M. Nussbaum shows that disgust as a social phenomenon leads to discrimination at the state and legislative levels (Nussbaum, 2004 (1)).

From a legal point of view, India can be compared with most common law countries, such as the United States. India is also a country with a written Constitution that details the rights of the individual. Chief architect of the Indian Constitution, Bhimrao Ramji Ambedkar held a certain opinion about the need to protect social minorities from pressure of majority. In the recent struggle for the rights of LGBT communities in India, the fundamental rights of the individual and majoritarianism, i.e. the tyranny of the majority, play a central role (Koppelman, 1994). Here we try to explain the irreconcilability of these two concepts using the theory of disgust.

Based on the results of research by M. Nussbaum, as well as other American psychologists, we can explain the reason for the rejection of sexual minorities in Indian and British society on a basic individual level. Every person has a primary disgust, which is probably universal for all cultures and is based on centuries of experience in the development of world culture. This universal disgust is experienced, for example, when human is facing the decomposition of a corpse. Such a reaction on the biological level can be explained by the inherent instinct of self-preservation in the human psyche. Protection from potential danger is probably the origin of social disgust in terms of evolutionary development (Nussbaum, 2004 (1)).

However, despite the fact that initially disgust supposedly protected us from danger, from a cognitive point of view, the concepts of disgust and fear are completely different. For example, many dangerous things are not disgusting, but people can feel disgusted even when the danger is objectively absent. Based on the study of cognitive psychology, M. Nussbaum argues that we reject what we associate with our own animality. This is a fairly harmless phenomenon at the level of personal perception, however, transforming into something more threatening on the social level.

The concept of "projective disgust" in the theory of disgust is usually understood as a phenomenon when the social majority projects some kind of disgust to a mini-group, a minority. People seek to create a buffer zone in an attempt to reject their own animality and project their disgust to specific characteristics onto a powerless minority. The general intention is clear, it is to compare their characteristics with those of a smaller social group and analyze their development in favor of themselves. Characteristics of rejection often are such universal thing as a bad smell, animal sexuality, i.e., its demonstration, etc. There is a lot of stigma, which imposed a veto to such themes in the society of the majority. For example, let's take the image of the Jew, which for many centuries prevailed in European anti-Semitism, where Jews were depicted as hyper-bodied, smelly, hypersexual, yet endowed with a special level of intelligence. Also, for example, for the higher Hindu castes, Untouchables have always been considered weak, dirty, and passive in their social position (Rukmini, 2014). An Untouchable Indian could never touch food for members of the higher caste, did not share housing with them, and even water for representatives of these two castes was supplied from different taps.

As for the correlation between disgust and sexual deviance or queer, the standard characteristic for projecting attitudes toward gays, lesbians, transgender people, and other members of sexual minorities is, of course, an appeal to anal intercourse. The projective attitude inevitably leads to the avoidance of bodily contact. To consider the issue of projective disgust and the legal struggle for the rights of sexual minorities in India, it is worth turning again to Hinduism, as we did in the last chapter. As we have already found out in the religious minorities of India, such as Muslim, Sikh, and Buddhist, there is no talk of queer freedom yet, and accordingly the question of a projective attitude is not yet considered. However, in Hinduism, the struggle for "purity" has not stopped since early times. And this struggle receives considerable reinforcement from Victorian Christianity (Delvin, 1994).

Hinduism is the religion on the world stage that explicitly glorifies bodily pleasure. The sexuality described there is not limited to heteronormativity, as we discussed in the previous chapter. A lot of sexual intercourses are celebrated without stigmatization. The ancient epics discussed in the first chapter also describe various kinds of relationships. Further, Hinduism becomes a little more ossified and this is primarily due to the formation of the caste system. The caste hierarchy has been developing and ideas of disgust to the Untouchables were gaining momentum. The untouchability of the lower caste is primarily due to feel of disgust to the nature of their work. For example, people working in the funeral business, tanners, and cleaners were clearly stigmatized. An ideology of revulsion has formed and divided Indian society into hardline groups for centuries.

Not only rot, feces, and dirt started to be associated with untouchability, but also the celebration of sexual pleasure according to Hindu tradition. Gradually, extramarital sexual relations also became stigmatized, and then the manifestation of sexuality in general became associated with disgust (Nussbaum, 2007). This sharp turn from traditional sexual freedom to stigmatization can be explained by the influence of British Puritanism. Indian sexual freedom was the complete opposite of what was considered normal and normative in British Victorian society. The accepted British view was that the Hindu religion is dirty. Winston Churchill famously expressed this view when he remarked in 1942: "I hate Indians. They are a disgusting people with a disgusting religion." (Amery, 1980).

The time passed and the influence of the century (from 1858 to 1947) as the colonial dominion of Britain revealed itself with Indian society began to assimilate Victorian criticism (Delvin, 1994). First, to distract criticism, the Hindus began to imitate British Victorian Puritanism. Sexual purity and caste restrictions have become central concepts in Indian culture. While initially Hindu culture was a manifesto of femininity, not only female, where the concept of masculinity was considered overly aggressive. Early Hindu traditions glorified sensuality.

To please the Victorian perception of normality, Indian society struggled with its own traditions of glory and body joys. Mahatma Gandhi was a progressive leader and he fought fiercely against untouchability. In this matter, he was brought to prominence by his instructions that all his followers should perform tasks traditionally related to Dalits, such as cleaning latrines. However, along with his progressive view of the caste system, Gandhi was also famous for his emphasis on purity in everything. He followed a strict diet as well as sexual purity (Lelyveld, 2011). This was an alien feature for Hinduism, since Gandhi's ideas about purity were drawn from Christian circles, including the time he spent in Britain. Gandhi sought to eradicate sexuality in himself and encouraged his followers to do the same. He disgusted the sexuality in any form and strongly expressed his disapproval of other people's sex lives (Nussbaum, 2003).

As an opponent of sexual acts as such, Gandhi particularly stigmatized same-sex acts. Unlike heterosexual acts of love, same-sex acts could not be justified in the eyes of the leader even by the sacred function of procreation. It seems significant that Gandhi also despised Oscar Wilde, famous for being jailed for his immoral same-sex behavior. Thus, in an attempt to break down the caste boundaries of people's bodily communication, Gandhi reinforced these same boundaries in sexual communication. Gandhi's ideas were very popular and significantly influenced the further spread of puritanical Victorian values in India (Nussbaum, 2004 (1)).

I would also like to return to the topic of the influence of Islam on Indian culture, in particular in the issue of acceptance of homosexual behavior. In the previous chapter, we have already pointed out the falseness of the accusations against Islam. Multiple memoirs prove the tolerance with which the Muslim ruling elite treated manifestations of sexuality, including homosexuality, in Indian culture (Eraly, 2009)

Projective disgust, however, does not imply homogeneity of opinion in society. Of course, disgust also had its opponents. For example, poet, philosopher, composer and choreographer Rabindranath Tagore was a defender of equal citizenship. Like Gandhi, he believed in the need to eliminate caste division. However, he also presented the idea of the celebration of life in the human body as a positive one, in which he strongly echoed the early Hindu traditions. At his school in Santiniketan, he started creating a style of youth education aimed at physical reconciliation and love (Nussbaum, 2011).

As a dancer himself, Tagore taught dance and music. The main message of his dance was freedom of the body. Of course, in his time, he did not promote these ideas openly and publicly. His dance style can be interpreted as androgynous, in tune with the Hindu tradition of sensuality, where aggression is an alien concept (Sen, Sinha, 1994). Studying Tagore's philosophical writings, we found that he further reveals the idea of sexual freedom and contrasts it with Victorian Puritanism. For example, in the work "The Religion of Man" (1931), Tagore describes in detail the lifestyle of Bengali bauls. He calls them the prototype of the love that society needs. Bauls still exist in modern South Asia and they are a marginal community of hermit minstrels who have left civilized society. Bauls became well known for promoting countercultural sexual practices with partners of different genders in their community. Also, among bauls there is a rite of initialization, which consists in giving up the feeling of disgust, namely, the need to taste all the body fluids. Of course, in the Victorian world, the bauls were rejected by society. In 2005, UNESCO included bauls in the list of Masterpieces of intangible cultural heritage.

Tagore also draws a connecting thread between sexual, caste, and racial disgust. These three themes have always been closely intertwined in Indian multi-ethnic culture. Tagore concludes about the spiritual equality of all castes and genders and argues that India should accept same-sex relationships (Nussbaum, 2011). Modern India has passed a thorny path to the legislative acceptance of sexual freedom. However, there is still enough Puritanism in India that negatively affects women's freedoms and queer freedoms. The Victorian era of Puritanism had a huge impact on Hindu law and continues to tacitly promote bodily purity. Victorian Puritanism for many years opposed the scientific perception of Hinduism as a religion. In this regard, a very large number of studies on the subject of sensuality and open sexual behavior in early Hinduism have been severely criticized. In the Indian scientific circles themselves, any topics related to the queer community were coursed exclusively within the framework of psychiatry until 2009.

Very revealing is an episode of modern Indian history, when in 2011 Narendra Modi banned a book-biography of Gandhi authored by Joseph Lelyveld, in which Gandhi is allegedly attributed to homosexual behavior. However, it was suspended by the Justice Minister after reading the book. Lelyveld did not actually describe any of Gandhi's homosexual behavior, and he claimed that in the book he never even used the word bisexual or homosexual. Thus, there is clearly a kind of sexual panic in India, and right-wing Hindus and the Victorian past are once again joining forces to stigmatize members of India's LGBT communities (Nussbaum, 2014). Next, we will look at six illustrative documented cases of attitudes towards members of sexual minorities in colonial and post-colonial India.

2.3 SIX DOCUMENTED CASES

Laws criminalizing same-sex behavior have sought to restrict the rights of members of the LGBT community since colonial era (Narrain, 2018). By late 2010s, the perception of sexual minorities in India appeared to be in a precarious position between sympathy and contempt. Given the ample evidence of queer traditions in Indian culture, the fine line between empathy and disgust has been observed over a long period from the colonization of India by the British Empire to the present day. Now we are going to discuss six cases, two of which date from colonial India, and the remaining four are directly related to modern India. The six cases we selected cover the period between 1884 and 2018. Cases dating from the colonial period of Indian history (Queen-Empress V. Khairati (1) and Navshirwan V. Emperor (2)) demonstrate the transfer of methods of persecution of LGBT persons straight to modern Indian ones. Four cases from modern Indian history (Naz Foundation V. NCT Delhi (3), Suresh Kumar Koushal V. Naz Foundation (4), National legal services authority V. Union of India (5), Navtej Singh Johar V. Union of India (6)) are the epitome of dedicated hopes for a fair policy towards members of the LGBT community.

(1) Khairati V. the Emperor 1884

The Khairati case of 1884 is the first documented case of the IPC Section 377 enforcement against a transgender person. Since there were many references to gender reassignment in Hindu texts, and the Tritiya-Prakriti (third gender) group had a sufficient number of followers, the Khairati case was the first to reach a legal impasse, since Section 377 of the Indian Penal Code does not regulate such legal situations (Nussbaum, 2004 (2)).

Khairati, a transgender man who lived with a family in the village of Muradabad, was handed over to the police with a charge of inappropriate behavior, namely crossdressing. Khairati was arrested while singing with a group of women outside her home in women's clothing. Since the charges of wearing women's clothing were not sufficient for a trial, the authorities put forward a proposal to check other possible "inappropriate practices" committed. The medical examination of Hirati, according to court protocol, showed that Khairati had signs of the usual sodomite. On the hearing Hirati was described as a eunuch.

During the arrest Khairati was subjected to violation of bodily integrity and dignity. This was the first time that authorities were implicated in creating a discourse based on an disgust to transgender people. Although Section 377 does not regulate the original "crime" committed by Khairati, namely, singing in women's clothing, the district authorities of Moradabad considered that the practice of crossdressing was sufficient to arrest Khairati, and the judges supported the authorities' desire to "check the disgusting practices" that Khairati most likely committed.

This case clearly demonstrates the collision of the legal field of Section 377 and the real situation in Indian society, where representatives of the Tritiya-Prakriti community were not uncommon. Disgust to the defendant because of the discrepancy between biological and psychological gender led to gratuitous violence during the arrest. Medical examination revealed that Khairati is not a eunuch, and therefore belongs to the male biological sex. Khairati herself denied the latter fact, which made her a potential criminal under Section 377. In court, Khairati was acquitted because the judge did not consider the charges sufficient to carry out the sentence under the Section 377 (Dreshcer, Byne, 2009). Khairati case starts the story of how the law in colonial India was used for harassment based on gender identity.

(2) Nowshirwan V. Emperor 1935

The second case we consider occurred in 1935 in North-Indian town Sindh. This case represents how 377 Sections was applied to private homosexual behavior among men. A young Iranian shopkeeper, Norshirvan, was charged with committing a crime against an 18-year-old Indian man, Ratansi. In court, the case appeared as follows: Ratansi acted as a plaintiff and accused Norshirvan of forcible sexual intercourse in the shopkeeper's room. Witnesses were a police officer Solomon and his friend Gulbuddin, who watched the violence through the keyhole and after handed Noshirvani over to the police station (Grey, 1980).

However, a more detailed examination and reading of the fragments of the court's decision in this case creates a completely different picture. On the day of the crime, Ratansi was seen drinking tea in the hotel nearby Norshirvan's shop, then he left it. Next, Ratansi moved to the pier, where he spent some time until Norshirwan approached. The two men chatted for a while and then went back to the hotel, to Norshirvan's room. A witness a police officer and his friend watched them through a keyhole and after performing a sexual act broke into the room and took Norshirvan to the police station. However, the prosecution of the witnesses did not convince the judge that Norshirvan forced Ratansi to any carnal relations. The judge was not willing to rely on the testimony of witnesses, Solomon and Gulbuddin, behavior of which he found strange. The evidence of the medical examination could not prove the violence of the sexual act. Ratansi gave quite a confusing testimony, so the judge suggested that he was forced to impersonate the plaintiff (Narrain, 2018).

The story of Norshirvan and Ratansi seems to be an Indian version of the one with Oscar Wilde and Lord Alfred Douglas. The judge said that according to the medical examination Ratansi came to a meeting with Norshirvan voluntarily. However, due to an accident, when their relationship was discovered by a police officer, it turned into a public scandal. The prosecution tried to turn an act of consent between two men into a story of homosexual rape. However, the judge's alleged word that the relationship was consensual did not justify Ratansi from becoming a victim of judicial wrath. The court charge includes terms such as "animal" and "despicable", which placed the sexual act in the framework of moral disgust. The story of Novshirvan and Ratansi can be considered as borderline in the history of the battle against the 377 Section and as one of the first recorded tragic victims (Murray, 2000, p. 221).

(3) Naz Foundation V. NCT Delhi 2009

The first time when Indian judicial system transcended the pattern of decisions described above occurred 158 years after the entry into force of the Indian Criminal Code and 59 years after the entry into force of the Indian Constitution. Of course, the social field and context that existed at the beginning of the 21^st century was very different from the one described in the first two cases. Despite the full legislative force, Section 377 and the norms that it forms began to be questioned. On the world stage of that time the issue of gender and sexuality was very acute. In Noshirvan and Ratansi times there was no idea of the LGBT community and their rights concept. While by the beginning of the 21^st century, Indian history already counts a certain amount of social struggle against 377 Section by queer minorities. For example, the arrest of HIV/AIDS workers in Lucknow (2001).

In 2001, a group of lawyers filed a petition to the Delhi Supreme Court challenging the Section 377 of IPC on behalf of the NAZ Foundation. The main argument against Section 377 was the emphasis on constitutional human rights. Namely, the Naz Foundation proposed to stop criminalizing same-sex sexual relations by mutual consent in a private situation. It was proposed to limit the effect of Section 377 cases of sexual violence against children.

The petition itself was submitted by a non-governmental organization, but still gradually became representative of the entire community. The legal team and the Naz Foundation called it a process of turning their interest litigation into a truly "public" one. There were series of meetings pro petition. Over the next seven years, this process continued and contributed to the fact that Section 377 has become a more politicized issue. The national AIDS organization (NACO) joined the petition stating that the Section 377 hinders efforts to combat HIV/AIDS. The applicants were looking forward to the hearing.

India in the post-liberal era was not exactly a welcoming space. In judicial practice, there used to be a line of hostility to such applicants as, for example, slum dwellers and other “politically unpopular minorities” (United States Deptt. of Agriculture v. Moreno, 1973). Since the main matter was a recognition of the constitutional rights of Indian citizens, the applicants were concerned about whether they would be able to convince the judges that human rights in this LGBT case were really at stake.

During the hearing, what happened quite unexpectedly could be described as judicial empathy. The judges' questions and comments on the Naz Foundation case were characterized as empathizing with the suffering of the LGBT community. During the hearing, there was no desire to humiliate or deviate the social discourse of homophobia (Narrain, Eldridge, 2009, p. 49). The judges were sensitive not only to cases of severe violence, but also to more subtle forms of discrimination. In such circumstances, the Naz petition seemed likely to win in favor of decriminalizing homosexuality, based on Hart's (1967) position that regulating the zone of private morality is not within the law's purview.

In this case the main question was the Section 377 opposing to constitutional rights. The judges' decision was a turning point in the history of the queer community in India. It was stated that constitutional morality in judicial reading requires LGBT people be treated as equal citizens of India. LGBT persons should not be discriminated on their sexual orientation. Only when the dignity of LGBT individuals is respected does the Indian Constitution live up to its fundamental promise. Going one step further, constitutional morality also requires that the court play the role of a counter-majoritarian institution that takes responsibility for protecting constitutionally enshrined minority rights, regardless of what the majority believes. Here is a brilliant quote from the judicial decision in the case of Naz 2009:

“If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of `inclusiveness'. This Court believes that the Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as `deviants' or `different' are not on that score excluded or ostracised.” (Nussbaum, 2010)

Thus, this case led to a total shift in the LGBT paradigm at the social and legal levels in India. Sexual minorities now had their rightful place in constitutional law. They were guaranteed this right, regardless of what it means for the social majority. However, the victory was in some ways fragile, as evidenced by the decision in 2013 in the case of Suresh Kumar Koushal V. Naz Foundation, which we consider next.

(4) Suresh Kumar Koushal 2013

This 2013 case became fatal for LGBT individuals in India when the court decision overturned the Delhi High Court case Naz Foundation V. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code. It criminalized sexual intercourse "against the order of nature". The decision of the Supreme court of India on 11 December 2013 did not find sufficient grounds for declaring part of 377 Section unconstitutional and overturned the decision of the Delhi High court. The judges' conclusion was as follows:

“A miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” (Nussbaum, 2014)

Two affidavits read in court attest to this willful blindness of the judges in this case. The first of the two testimonies was the confession of Kokila, a transgender man who was raped by police. The second testimony was a letter from the mother of a gay son, both of whom constantly lived in fear of revealing the child's sexual orientation, so as not to expose him to persecution in society. These statements about rape and harassment did not affect the court. For all those who supported the Naz Foundation in protecting LGBT individuals and their right to Express themselves through sexual attachments without being constrained by barriers of sexuality, religion or caste, the decision in the Koushale case was a clear failure in the fight.

(5) National Legal Services Authority V. Union of India 2016

The only case concerning the rights of a large group of transgender people in Indian society has been successful. After a resounding defeat in the Koushal case, another panel of the Supreme court issued a surprisingly progressive decision. The judges began with a powerful recognition of the injustice done to the transgender community over the past centuries of Indian history:

“Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are side-lined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.” (Narrain. 2018)

The judges then focused on the role of the transgender community in Indian history and mythology. The judges gave "cultural sanction" to the existence of a group of transgender people, referring to their description in two great Hindu epics (Mahabharata and Ramayana). It was even emphasized that during the period of Muslim rule in India, this social group was a privileged part of the ruling class (Nussbaum, 2010). The court recognized that the current stigmatized status of the third-gender caste, the Tritiya-Prakritis received only during the colonial period. In 1871, under the new Criminal Tribes Act, the British declared the existence of a third-gender caste illegal. The judges in National Legal Services Authority V. Union of India even referred to the Khairati case we mentioned. The actions against the Khairati were described as part of the colonial policy with the goal of destroying the Tritiya-Prakritis as a caste (Narrain, 2018).

The court's decision states that denying rights to the transgender community is a violation of the constitutional right to equality (article 14), the right to non-discrimination (article 15), the right to affirmative action (Article 16), the right to freedom of expression (article 19(1) (A)) and the right to dignity (Article 21). The judges also interpreted the right to personal liberty very broadly under the article 21:

"Thus, legal recognition of gender identity is part of the right to dignity and freedom guaranteed by our Constitution... gender self-determination is an integral part of personal autonomy and self-expression and falls within the scope of personal freedom guaranteed by article 21 of the Constitution of India.” (Narrain, 2018)

This case plays a huge role in the long-standing struggle for transgender equality for the right to Express themselves. Although section 377 was re-enacted earlier in 2013, the position of the Tritiya-Prakriti in Indian society has finally been officially recognized. In the previously mentioned context of inclusiveness expressed by the judges in the Naz Foundation case in 2009, gender self-determination in India has reached unprecedented progressive heights.

The judicial decision in this case is in sharp contrast to the decision in the Koushal case. The judges stated that they could not express their opinion on the constitutionality of article 377, since the issue had already been considered in Koushal. The polar divergence of opinion in the cases of Koushal and the National office of legal services highlighted the need for a broader panel of the Supreme court to resolve this contradiction.

(6) Navtej Singh Johar v. Union of India (2018)

In 2016, several people including media personalities, filed a petition in the High Court challenging the constitutionality of the Section 377 of the Indian Criminal code. The applicants claimed that the application was concerned with issues other than those raised in Koushal case. The applicants claimed that their rights were infringed because of the existence of Section 377 of the Criminal Code. It is interesting to note that in opposition to the appellants were made by organizations such as Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries (Naz Foundation v. Union of India and others, 2018). The government of the national Democratic Alliance (NDA) took a neutral position, leaving the decision to the court.

The case was referred to the constitutional panel of the High Court. On September 6, 2018, the court delivered its unanimous verdict, declaring parts of the law relating to consensual sexual acts between adults unconstitutional. This automatically canceled the decision of 2013 in the matter of Suresh Kumar Koushal. Naz Foundation. The verdict also noted that representatives of the LGBT community have the right to equal protection under the law, without any discrimination. It is important to note that the Largest constituent party of the National democratic Alliance, the right-wing Hindu nationalist coalition, which currently has a majority in the Indian Parliament, has not officially commented on the court's decision. Queer activists can only hope that this was the last step in a long struggle for equal rights in Indian society.

2.4 RESULTS

The stories we have reviewed illustrate the judicial reluctance to apply the language of the Indian Constitution in both colonial and independent India. The legal freedoms of LGBT individuals were first legalized only in 2009. However, in the 2009 case, legal liberties were considered only in the context of the absence of criminal liability for wrongdoing under the Section 377 of the IPC (Nussbaum, 2013). In the Koushal case, all the heights achieved were lost, however, in the NALS case, some of the rights of transgender queer culture representatives were restored. Only in the final case of 2018 can we talk about considering the decriminalization of LGBT communities through the prism of the rights to equality, dignity and privacy. This is in line with the constitutional promise of full equality for all people, regardless of their gender or sexual preferences.

To sum up, throughout Indian history the laws governing private sexual relations between citizens have been enforced from the outside. Undoubtedly, there are such laws in Indian law that are rooted in Hindu traditions, for instance, the laws governing disputes on the basis of property ownership in marriage. However, as our brief legal study in this chapter makes clear, the ideas of regulating the sexual life of citizens were taught from outside, primarily by British rule with the Victorian doctrine of chastity. Indian traditions do not seek to regulate same-sex behavior, while non-Indian Christian traditions in Indian law directly control the private lives of subjects, as was customary in Victorian England. India even for a long time was a haven for British gays, but then this freedom was suppressed (Nussbaum 2004 (1)). This brings us to the main question of our research. Why were the traditions of British Puritanism, alien to traditional Indian culture, preserved in Indian law and maintained in Indian society until the beginning of the second decade of the 21^st century?

3. THE ROLE OF BRITISH LEGACY

In the first chapter, we have analyzed enough examples from the religious and social spheres of ancient Hindu society to argue for a tolerant coexistence of queer traditions with the Hindu social system. The long period of Mughal rule also proved itself to be tolerant to the variety of Hindu religious practices of bodily joys, or Kama. In the second chapter, we reviewed the process of forming a projected social disgust, which arose in Indian society under the influence of the norms of British Puritanism of the Victorian period. Briefly, we have already analyzed the path of legal and social struggle made by LGBT persons during the 2010s.

In this last part of our research we are going to analyze the connection between the historical constraints of the British colonial period and the current very precarious position of LGBT communities in India. The first step in this analysis is to explain the concepts of queer culture, queer tradition and queer social and cultural values with general theory of modernization. We will consider several approaches, including the West-Centered and Indian approaches to the perception of national culture and tradition and the inclusiveness of queer in them.

Next, we will analyze the rotation of cultural values, including the acceptance of queer culture as part of the national society, based on the theory of global society. We will consider two approaches, both of which imply an intolerant attitude to queer culture as a result of borrowing the value system of the British Empire during the colonial period.

As a final theory that once again confirms the important role of the colonial period in shaping the modern value system in India, we will take the theory of cultural trauma. The theory of cultural trauma considers the concept of inclusiveness of LGBT communities in the social structure of society as a sociopolitical phenomenon. Observing the manifestation of LGBT parades that have swept the Western world since the last quarter of the 20^th century, India perceives queer culture as a propaganda of the Western-type social culture system. Thus, experiencing cultural trauma syndromes after a traumatic experience of the colonial period, Indian society refuses to accept queer culture as being on the Western agenda.

3.1 INDIAN MODERNITY

To demonstrate the differences between modern Indian society and its pre-colonial stage of development, we rely on the concept of queer tradition. The queer tradition, the features of which we found in the first chapter analyzing the ancient Indian culture, has transformed into a culture of acceptance of queer in society. Perhaps, without the powerful influence of British Puritanism on Indian society at the end of the 19^th century, the culture of accepting queers would have gradually developed into a culture of tolerant perception of LGBT minorities by the end of the 20^th century. Indian society would skip the stage of legal struggle for the rights of sexual minorities and thus avoid repeating the Western history. However, Indian society has come a long way towards moving to a new level of cultural and social development, characterized by the cancellation of the Section 377 of the IPC. The West-centric approach in the theory of modernization would mark this step as decisive and catching up with Western society, but of course the theory of modernization has long not considered the history of the East one-sidedly, only from the West.

Since the West-centric concept of modernity has been criticized, Indian sociologists consider India as a country of multiple modernities. Despite the fact that recent event of legislative recognition of sexual minorities demonstrates just the success of India's accession to the modern system of values, modern Indian cultural base includes rich traditions of different cultures influencing on. Modernization theory in the context of the issue of sexual minorities focuses on the concept of cultural value in society, namely how Indian society broadly accepts queer value at the social and legislative level. Here we come up against two fundamental but contradictory approaches within the theory of modernization. Considering the theory of modernization from its origins, we can see that the two approaches meet a contradiction in the question of the impact of economic development on the development of cultural and social values of society. Theorists such as Karl Marx and Daniel Bell have argued that the acceptance of higher and more developed cultural values in a particular society is possible only after reaching the appropriate stage of economic development. In opposition to this view are the theories of other sociologists, such as Max Weber and Samuel Huntington, claiming cultural values having an enduring and autonomous influence on society. There is still no single point of view on this issue (Inglehart 1997).

Since our research does not directly address the question of the relationship between the levels of economic development and cultural development, we will consider the evolution of the value of social acceptance of sexual minorities through the prism of such an approach of modernization theory, which takes into account the presence and absence of dependence of economic development on the development of cultural values in society. In the early 21st century, American sociologists Ronald Inglehart and Wayne E. Baker conducted a study of the relationship between the level of economic development of the country and its level of cultural modernization, that is, the movement towards liberal cultural values. Among the liberal cultural values, tolerance towards social minorities, including sexual minorities, and equal constitutional rights for representatives of the LGBT community were among the first mentioned.

Based on a comparison of data from three researches of the World Values Survey, sociologists reaffirmed that the societies of the non-post-modern world, including India, tend to more homogeneous cultural values (Inglehart & Baker 2000: 20). Among the measures, there were such selected values as attitude towards religion, family, nation and state, authorities, etc. The survey showed that the importance of the family is located among main themes: in traditional societies, the life goal for people is to make their parents be proud of their children. They emphasize social conformity in opposition to an individualistic pursuit. In countries with secular-rational values prevalence of respondents choose the opposite options to all questions. The absence of security concerns generates in people, which belong to communities with secular values, such features as trust, tolerance, subjective well-being, political activism, and self- expression. “At the opposite extreme, people in societies shaped by insecurity and low levels of well-being tend to emphasize economic and physical security above all other goals, and feel threatened by foreigners, by ethnic diversity and by cultural change” (Inglehart & Baker 2000: 25). This leads to intolerance to any social manifestations of the "alien", i.e. foreign and disgusting in terms of disgust theory, any sexual minorities, as well as to the strengthening of standardized gender roles in a society.

A central component of this dimension involves the polarization between materialist and postmaterialist values. Numerous studies within the theory of modernization confirm that such a transition characterizes the shift from an emphasis on economic and physical security towards an increased emphasis on self-expression, subjective well-being, and quality-of-life concerns (DiMaggio 1994). This transition is considered reasonably as a characteristic of advanced modern society. Such cultural values are absorbed from birth in an environment where the person does not have to worry about survival. Cultural norms of such societies include attention to equal gender rights, diversity of sexual preferences of individuals, attention to environmental issues, as well as increasing activism in the political life of society. Over the past quarter of a century, noted norms have taken a firm position inside the system of values of all developed countries (Inglehart & Baker 2000: 28).