The first article in the three-part series traced the pre-colonial history of homosexuality in India. It focused on the remnants of same-sex love and its prevalence in mythology, vernacular literature and religious text.
In Part II, the article talks about the infiltration of colonial morals and how the anglicisation of selective religious text polluted the connotation of same-sex love in India. Thus, further inscribing British orthodox morality into the constitution and elsewhere. Deepanshi Mehrotra writes how S. 377 was implemented as a tool of disciplining desire. And even after independence was used for harassment by the police and society alike.
The Advent of the British: Colonial History of Homosexuality
Section 377 of the Indian Penal Code (IPC) was forced upon India and Indians as part of the British colonial project, which smothered civil and moral values in the name of reformation. Similar provisions that forbid homosexuality are visible in all countries that the British empire colonised.
Colonisers perceived native cultures as sexually corrupt. Colonial legislators believed that their laws and policies could indoctrinate ruled masses with European morals.
Therefore to control visual signs of sex or sexual pleasure, Thomas Babbington Macaulay drafted Section 377 IPC in 1838 and implemented it in 1860.
India was the first colony where the British outlawed same-sex relations. But, unfortunately, it also became a template for the other British ruled colonies. In addition, S. 377 influenced Asia, Africa, and the Pacific Islands. Even today, more than half of the seventy or more countries that ban or penalise homosexuality are former British colonies or protectorates.
The British notion of opposition to homosexuality got so deeply embedded in the Indian mindset that the people of India started to believe that homosexuality is against Indian values and culture. Unfortunately, we forgot our history and continue to carry colonial wisdom with us even after the decriminalisation of Section 377.
Noted historian Harbans Mukhia pronounces the need to be familiar with Indian history to understand why the British made gay sex illegal. He further states,
“The British brought their own rules to India, including Section 377, which banned homosexuality and made it a criminal act. This law was enforced by them, but it didn’t conform to India’s attitude toward homosexuality. It was more to do with their Christian belief systems.”
Explaining Section 377 IPC and Its Making
Section 377 was an archaic, socially conservative colonial-era law that criminalised and punished certain sexual acts terming them ‘unnatural offences.’ The provision penalised all forms of anal and oral sex.
It invaded privacy and degraded an individual’s dignity based on who they are or who they love. In addition, authorities misused this provision to arrest, blackmail, discredit or abuse a person.
Section 377 of IPC read:
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.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section.
S. 377 is a British legacy, modelled on the ‘Offences Against the Person Act’ 1828, inspired by the 1553 Buggery Act that proscribed homosexuality.
Convictions under the Buggery Act were punishable by death. Replicating the original law in India, the interpretation of S. 377 included homosexuality within its ambit.
The Buggery Act, ratified under the reign of King Henry VIII, defined ‘buggery’ as ‘an unnatural sexual act against the will of God and man’. It intended to criminalise bestiality, anal penetration, and in the broader sense, homosexuality.
It was the first law in England that was inspired by religious ideals. It brought the offence of sodomy from the Church to the state. Later, the ‘Offences Against the Person Act’ replaced the earlier legislation and broadened the definition of unnatural sexual acts.
We must understand that sodomy laws were a colonial imposition. No native participated in their formation.
Furthermore, the British government in India also passed the controversial Criminal Tribes Act 1871. The Criminal Tribes Act had declared ‘eunuch’, loosely used to define transgender persons, as a criminal tribe or individuals who are hereditary criminals. This law resulted in intense surveillance of the transgender community and abuse by the police, which increased stigma against the third gender, making them invisible to the state policies.
Another issue with S. 377 is its position in the Indian Penal Code. The Section follows the category of ‘sexual offences’ against women, falling right after Section 376, ‘Punishment for rape’. Macaulay interpreted the provision for both ‘homo-‘ and ‘hetero-’ sexual activity. However, independent India and the Supreme Court interpreted Section 377 to punish homosexuality exclusively. Thus, the provision does not merely apply to anal sex but was interpreted to include homosexuality in general.
The interpretation of S. 377 stretched from punishing particular sexual conduct to punishing individuals who might engage in the sexual behaviour, punishing consensual sex. Hence, making criminals out of people who happen to have non-heterosexual orientation.
Since consent didn’t figure anywhere, S. 377 ended up equating same-sex love with rape and perversity.
Factors Contributing to the Change in Mentality
The notion that homosexuality is perversive and abominable got thrust upon India by the British.
Victorian law was inspired and influenced by the ideals and morals of the Church. As a result, the British adhered to Victorian values that borrowed heavily from Christian values of sin.
They perceived Indians as pleasure-seeking individuals and initiated steps to discipline them. They wanted to inculcate European mentality among the colonised population.
The Christian values stated that the purpose of sexual activity is to procreate. Therefore, any sexual activity not meant for procreation was taboo. Thus, since procreation biologically needs a man and a woman, sex for pleasure was perceived as morally corrupted.
However, this notion goes against the perception of sex as per ancient Indian values since pre-colonial India was riddled with instances that indicated acceptance for same-sex love.
Furthermore, there was a massive difference between how ‘queer’ persons were treated in India and Britain before the British conquered India.
Indian society was more liberal and tolerant of homosexuality. But, on the other hand, Britain declared buggery a capital crime. Due to the same, many individuals residing in Great Britain did not want to be sexually repressed and tried to escape Victorian society to come to India.
It was then that the Britishers decided to impose their morals of punishing buggery upon India. Soon this became the norm.
S. 377 IPC intended not only to modify the sexual behaviour of the Indian populace but also to prevent moral lapses among the Britishers.
Enze Han, in his book ‘British Colonialism and the Criminalisation of Homosexuality’, states that law is difficult to dislodge once brought into action. Mainly because it infiltrates the mind of the general populace, and soon they start believing that it reflects their morals and practices.
“The law book says it’s illegal so that means that it has this general societal inference, changing the social normative views of gay sex.”
Misplaced Understanding of Indian History of Homosexuality: Affected Till Now
“The Indian society prevalent before the enactment of the IPC had much greater tolerance of homosexuality than its British counterpart, which at this time was under the influence of Victorian morality and values in regard to family and the procreative nature of sex.”
Former Attorney-General G.E. Vahanvati maintained the statement above in the Supreme Court while arguing upon a bunch of appeals against the Delhi High Court Judgment.
The impact of the British ideology is evident till now. As its aftermath, multiple religious groups and individuals do not acknowledge and accept the existence of the LGBTQIA+ community, let alone their rights.
The colonial whitewashing goes to the extent that even after years of independence, we cannot go back to ancient and medieval India, which was much more liberal and open-minded.
Indians strive to strike a balance between Victorian ideals and Ancient and Medieval Indian ideals.
As columnist Gurcharan Das puts it,
“Tragically, the colonial brainwashing was so deep that this un-Indian imposition remained on our statute books for 71 years after the colonisers had left.”
The British Empire and its enforced laws can be held responsible for homophobic attitudes and promoting heteronormative behaviour in India.
Until the Supreme Court’s judgment on decriminalisation of Section 377 IPC, LGBTQIA+ persons lived like culprits in India. The afterlife of colonial laws had a dehumanising effect on LGBTQIA+ persons as the archaic notions of the colonial Church hampered queer persons access to basic rights such as education and work. It also had a severe psychological impact on the concerned individuals and their families.
The Supreme Court took the first step of undoing the British legacy in Navtej Singh Johar v. Union of India. The five-member constitutional bench ruled that S. 377 does not apply to sexual acts between consenting adults.
However, the fight against bias is still existent and needs fighting on the ground level. Change in cultural attitudes requires more time and effort. The need of the hour is to spread more awareness and ensure understanding of our history of homosexuality and the present essential ideas of privacy and rights protection.
Note for readers: While the first two parts covered the pre-colonial and post-colonial history of sexuality in India, Part III will shift its attention towards the recent decades and how they changed the ways ‘homosexuality’ was perceived. The last part of the three-part series will talk about the activism in India that pushed for the decriminalisation of Section 377 in India. The last part will give a nuanced account of recent history and the history in the making.
Das, Gurcharan. “Gays and colonial brainwashing: Learn from India’s open, exuberant past and respect those who differ from us.” The Times of India, September 11, 2018, Accessed July 2, 2021, timesofindia.indiatimes.com/blogs/men-and-ideas/gays-and-colonial-brainwashing-learn-from-indias-open-exuberant-past-and-respect-those-who-differ-from-us/.
Gupta, Alok. “Section 377 and the Dignity of Indian Homosexuals.” Economic and Political Weekly, Vol. 41, Issue No. 46, November 18, 2006. https://www.epw.in/journal/2006/46/special-articles/section-377-and-dignity-indian-homosexuals.html.
Han, Enze, and O’Mahoney, Joseph. British colonialism and the criminalisation of homosexuality, Taylor&Francis,2018, https://www.google.com/books/edition/British_Colonialism_and_the_Criminalizat/c3dZDwAAQBAJ?hl=en&gbpv=1&dq=british+colonialism+and+the+criminalization+of+homosexuality&printsec=frontcover.