India: Whose law is it anyway ?

Cultural justifications for upholding Section 377 of the Indian Penal Code which criminalizes homosexuality are untenable, given the colonial antecedents of the legislation, the cultural heterogeneity of the populations it was imposed upon, and the liberal sexual mores which prevailed among many sections historically.

Bina Agarwal
6 January 2014

In a landmark ruling, the Delhi High Court in India declared in 2009 that Section 377 of the Indian Penal Code which criminalises gay sex, was unconstitutional, and affirmed that people of the LGBT community are equal citizens and entitled to all the protections of equality and non-discrimination that the Indian Constitution offers.  On 11 December 2013, however, the Supreme Court of India set aside the Delhi High Court ruling, holding that it is Parliament, and not the judiciary, which should be amending or repealing Section 377. In effect the Supreme Court (SC) judgment re-criminalised homosexuality. The SC judgment was widely criticised in India by a large cross-section of citizens as well as some major political parties such as the Congress, the Communist Party (Marxist) and the Janata Dal (United), but some significant political parties—such as the Bhartiya Janata Party (BJP) and the Samajwadi Party—lauded it on the grounds that homosexuality is an unnatural act, and that the judgment is in keeping with the mores of Indian culture.

Does Section 377 of the Indian Penal Code which criminalises homosexuality uphold ‘Indian culture’, as these political parties have argued to justify keeping in place an archaic, unconstitutional and blatantly unjust law? Such political parties clearly need lessons in South Asian history!

The law which was upheld by the Indian Supreme Court was passed in 1860 by the British who were then steeped in Victorian mores. In fact, as historians and human rights authors such as Douglas Sanders note, its antecedents lie in the 1534 law on ‘buggery’, which was supposedly enacted to deal with sexual indiscretions by the clergy, but in fact sought to undermine the hold of the Catholic Church in England, take over monastic properties, and help King Henry VIII establish control over the Church of England. Later expanded and ‘secularised’, and incorporating sexology terms such as ‘against the order of nature’, the British enacted Section 377, or its equivalent, in many of its Asian and African colonies, not just India. In other words, it cut across a diversity of countries and cultural contexts. European colonisers also introduced anti-gay laws in parts of the Middle East where none existed before.

The Indian Penal Code of 1860, drawing heavily on English law, was drafted by Thomas Macaulay who thought of Indians as lesser breeds, needing English education to civilise them. Today, while the former colonisers have legislated equality in law for its citizens, irrespective of sexual preference, many Indian politicians and political parties—in this winter of our discontent—are clinging to the cloak of colonialism and representing it as ‘Indian culture’. Really?

India is and always has been a mosaic of cultures. Mid-18th century South Asia was teeming with communities which allowed sexual freedoms that left the colonisers very uneasy—Kerala’s Nayars, Meghalaya’s Garos and Khasis, Sri Lanka’s Kandyan Sinhalese, South Asia’s matrilineal Muslims, and numerous tribal groups. In most of these communities the British imposed their Victorian notions of morality and family, condemning and legislating against practices that did not conform to their norms - as I have described in my book, A Field of One’s Own.

The matrilineal Nayars of central Kerala, for instance, in a pre-puberty tali-tying ceremony ritually married the girl to a suitable man who then had no necessary role in her life. She could enter into sexual unions or sambandhams with one or more men belonging to her own or higher caste, who visited her at night and left at dawn. The visiting ‘husband’ left his arms outside the door to signal his presence to the others. Children belonged to their mother's taravad (matrilineal joint family) and were considered legitimate heirs.

This social freedom led to a barrage of European criticism of Nayar sexual morality. To bring it in line with their own ideas, the British set up the Malabar Marriage Commission,  which severely indicted traditional sambandham relationships as ‘based on a doctrine that there is no merit in female virtue, and no sin in unchastity’, of which ‘the very defenders of the system are heartily ashamed’. The Commission suggested drastic changes in marriage and property laws, despite recognizing that the majority did not favour this, although some elite Nayar men, influenced by Tamil-Brahmanical and western ideas and embarrassed by their customs, did support the change. Women's opinions were not even solicited. The ensuing legislation made men responsible for maintaining their wives and minor children, in keeping with the then prevailing British notion of a man’s ‘natural’ instincts.

Similarly in Sri Lanka, traditional Sinhalese customs which allowed easy divorce and remarriage conflicted with the British idea of marriage as a monogamous, lifelong union sanctioned by Church and State. In the Kandyan highlands, where wedding ceremonies were rare except among the rich, all children were legitimate except those born of specified cross-caste unions. In 1859, the British made unregistered marriages illegal, restricted divorce, and recognized only children born from registered marriages as legitimate. As a result, ten years after the law was passed, as a British Governor noted, some 66 per cent of marriages were considered illegal and 80 per cent of children born in that period were considered illegitimate!

Basically, across its colonies, most laws passed by the British from the mid-19th century, including Section 377, emerged from their cultural norms, not ours.  Why, one may ask, would political parties who swear by the ancient Sanskrit scriptures, support Section 377 which was drafted by a man like Thomas Macaulay who considered those scriptures to be of ‘small intrinsic value’, containing ‘monstrous superstitions’ to teach which would be ‘hardly reconcilable with reason and morality’? We don’t even need to cite the ancient Kama Sutra which recognized homosexuality as part of acceptable sexual practices. Liberal sexual mores existed in India even at the time when Section 377 was enacted. This law was contrary to our culture then, and is certainly unacceptable in Independent India.

Alongside its blatant potential for human rights violations, the re-criminalisation of homosexuality will also have high economic costs. Travel agencies catering to LGBT travelers have already faced a large number of cancellations. This will escalate, as news spreads during high tourist season. Non-Indians will be harassed, as happened recently when a gay diplomat’s spouse was refused a visa. The law can also be used against political opponents. The criminal conviction of Malaysia’s former Deputy Prime Minister, Anwar Ibrahim, of sodomy, under its own section 377 (taken from India) is a case in point.

We need to find the quickest and most effective way—judicial or legislative—to overturn the Supreme Court judgment, before we can make claims to being a humane, tolerant and modern society, guided by a far-sighted constitution.

A version of this article was first published in The Indian Express, on 20 December 2013 






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