India’s Section 377: India, Britain and the ongoing legacies of imperialism

Onni Gust

On 11^th November, 2013, the Indian Supreme Court upheld section 377 of the Indian Penal code, which declares “carnal intercourse against the order of nature against any man, woman or animal” to be a crime. The ruling came as a shock to LGBT rights activists. In 2009, following a ruling by the Delhi High Court that homosexual acts between two consenting adults in private was not illegal, it looked like the path to decriminalization across the country was set. Yet with pressure from a vocal religious right comprising all denominations, the Supreme Court overruled the High Court and announced its refusal to review the verdict, effectively re-criminalizing homosexuality.

In a rare bridging of religious divides, religious leaders issued a joint statement of support for the Supreme Court ruling stating that it is in line with “eastern traditions of this country, moral values and religious teachings” and that its continued criminalization relieves apprehensions of Westernization.  This is despite the fact that the Indian Penal Code, of which 377 is a part, was written and legislated by the British in 1860, in part as a response to the Indian rebellion of 1857.  Many of the newspapers that covered the ruling pointed to the irony that Britain has itself long since repealed the laws that it introduced into India (the Sexual Offences Act of 1967 repealed the criminalization of homosexuality in private between consenting male adults over 21 years).

The legacy of imperial Victorian sexual mores continue to haunt the lives of gay people in India, as well as of those across large parts of former British colonies.  From a Western perspective, however, I would question whether that wider legacy is really as exorcised in the ‘West’ as is being so widely acclaimed.

Whether we live in the so-called ‘West’ or ‘East’, our lives are interconnected through the history of imperialism, which continues to influence the ways we can imagine our worlds.  Liberal imperialism, which drew heavily on Enlightenment thinking, understood control of sexual ‘passions’ as a marker of a higher stage of civilization.  Sex between a married man and a woman, in private, was the only form of sex permitted as belonging to a ‘civilized’ people.  ‘Indecency’ covered a wide range of practices, many of them drawn from observation of non-European people, including nudity, polygamy, non-binary genders, same-sex practices and a range of temple-based practices including dancing girls.

Despite the complexity of meaning and tradition surrounding all these practices, they were each in different ways, placed under the rubric of ‘indecency’ and understood as markers of a lower stage of civilization and the sign of a degenerate society.  This in turn offered a moral justification for imperial rule and for the sustained and frequently violent oppression carried out in the name of Empire.  Today, the mantle has been passed to the post-colonial state under the guise of cultural authenticity.

That ‘the West’ has apparently changed its mind about which sexual acts can be considered ‘indecent’, allowing consenting adults to decide who they have sex with in private, does not mean that the paradigm of superiority has disappeared alongside decriminalization.  LGBT activists and queer theorists have pointed to the ways in which tolerance of homosexuality – as long as it follows a similar model to normative, middle class heterosexuality (privacy, marriage, mortgages, children) – has become another marker through which nations are represented as barbaric or civilized and another spurious justification for imperial wars.  Meanwhile, those who engage in practices and relationships which continue to be seen as unnatural or immoral, such as polyamory, sex work or gender dissidence, remain stigmatized as criminals and outsiders.

Onni Gust is Mellon post-doctoral fellow at the University of Illinois Champaign-Urbana, researching and teaching on early-nineteenth century gender formation in the context of European imperial expansion, particularly in India. Onni teaches European Imperial History and Gender and Sexuality Studies, works with LGBT youth and takes part in queer anti-racist and trans activism in the UK and USA.

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