LGBT rights celebrated in India at long last as colonial homophobic law crumbles
A five-judge Constitutional bench of the Supreme Court Thursday (6 September 2018) decriminalised Section 377 of the Indian Penal Code (IPC). Gay sex between consenting adults is now legal in India.
Section 377 of the Indian Penal Code is not remotely an Indian issue, not a Hindu issue, for it is a colonial law dating back to 1860 that punishes sexual conduct “against the order of nature” with up to life imprisonment.
Although some will seek to paint propagation of this law as indicative of Hindu right-wing influence in the Narendra Modi version of India, the law is steeped in the antiquity of Victorian times.
The single law on homosexual conduct was imposed by British colonial rules in 1860 and was similarly imprinted upon Papua New Guinea and Nigeria, for example. As far as the colonial project was concerned, places like India were at best morally ambivalent on the issue of sexuality, and in some cases, completely lax, even nefarious.
It was Human Rights Watch who explained that “Colonial legislators and jurists introduced such laws with no debates or cultural consultations, to support colonial control,” further adding that “they believed laws could inculcate European morality into resistant masses. They brought in the legislation, in fact, because they thought “native” cultures did not punish “perverse” sex enough. The colonised needed compulsory re-education in sexual mores. Imperial rulers held that, as long as they sweltered through the promiscuous proximities of settler societies, “native” viciousness and “white” virtue had to be segregated: the latter praised and protected, the former policed and kept subjected.”
This hatred of homosexuals for conducting an entirely private matter, behind closed doors no less, was particularly atypical of the Victorian era; an era which saw homosexual conduct through the lens of The Bible and in words furnished with punishment and abhorrent, polluting practice.
Reading out his judgement on the case in Delhi, the Chief Justice of India Dipak Misra said interpreting Section 377 to criminalise gay sex was “irrational, arbitrary and indefensible”.
“Any consensual sexual relationship between two consenting adults — homosexuals, heterosexuals or lesbians — cannot be said to be unconstitutional,” Mr Misra said.
Now while colonialism has long left India, taboos and misconceptions remain intertwined within mazes of prejudice. I delved deeply into this issue in my book ‘The Butterfly Room’ analysing the psychological approach of the South Asian mind when it came to the issue of homosexuality.
In India, we still live in times where the character of a woman is judged based on what she wears. Politicians can dare to make comments like “Boys will be Boys” and still continue to receive huge public support.
Until today’s judgement it was fair game to ask how we could expect people to wrap their heads around the idea of repealing 377 or the idea of homosexuality and homosexual encounters behind closed doors.
As for the law itself, it’s high time for it go. It should not have been implemented in the first place. We even reverted all of our city names to their original pronunciation after British left, why should we keep clinging onto a draconian law that was not ours to begin with.
Removing it is not going to solve all the discrimination and stigma that LGBT people face but it is definitely a good start in a right direction.
Saurav Dutt is the author of ‘The Butterfly Room’ which analyses the societal approach towards LGBT rights and homophobia within South Asia. He can be found on Twitter at Saurav Dutt
