The legal shadow of empire

By Maria O'Dwyer

To decriminalise homosexuality in India, activists were fighting not only prejudice but also a 19th century penal code set down by the British Empire.

On 6 September 2018, the Indian Supreme Court made history when it voted to decriminalise homosexuality in the second most populous country in the world.

It upheld a 2009 decision by the Delhi High Court which declared that Section 377 of the Indian Penal Code – a section that criminalised “carnal intercourse against the order of nature” (widely read to mean homosexual sex) – was unconstitutional.
International media interest followed. With the combination of celebrity advocates, a legal love affair (members of the petitioning legal team, Menaka Guruswamy and Arundhati Katju, subsequently came out as a couple) and similarities to same-sex marriage campaigns in Western countries, the judgement became a perfect publicity storm. It was covered by major media outlets such as CNN, the BBC and The New York Times, and Guruswamy and Katju became two of Time’s 100 Most Influential People of 2019.

The landmark ruling and surrounding media coverage shone a spotlight on the issue of LGBTIQ+ rights in India, but skirted around how Western influence has impacted India’s LGBTIQ+ community – Section 377 is a legacy of British colonialism, and forms of the code remain in the legal frameworks of many Commonwealth countries today.

Though global attention to the cause came only recently, the fight to decriminalise homosexuality in India has roots going back three decades; it is a story of tireless lobbying from lawyers, activists and health workers in the Indian LGBTIQ+ community.

Attempts to repeal Section 377 first began in the 1990s when AIDS organisation Bhedbhav Virodhi Andolan unsuccessfully filed a petition in the Delhi High Court to challenge the Section’s legality. In 2001, a new petition was filed by Anand Grover and Indira Jaising – two human rights lawyers acting for the Naz Foundation, which worked in HIV/AIDS prevention and treatment. The petition sparked years of intense and widespread consultation with activists and members of the Indian LGBTIQ+ community. Grover and Jaising ensured that the community was consulted extensively throughout their two-decade-long battle against Section 377.

In 2006, 12 NGOs and progressive groups formed the coalition ‘Voices Against 377’. It became an intervening party in the Naz Foundation’s litigation and, in 2009, the Delhi High Court deemed Section 377 a violation of fundamental rights. This was an extraordinary victory that was, in equally extraordinary fashion, overturned in 2013 by the Indian Supreme Court. While a curative petition was waiting in the wings, a new petition was filed by five celebrities which finally resulted in the 2018 decision to decriminalise homosexuality, sparking celebrations around the globe.

Melbourne Law School PhD candidate Danish Sheikh is a human rights lawyer who was involved in the litigation. In his view, the Western media coverage overly simplified the result. “The reporting that followed seemed to hinge the victory on a more recent legal intervention which doesn’t square with the larger history of the litigation, or indeed the movement from which it emerged.”

Indeed, the coverage prioritised individual heroes over a more complex – and more Indian – story of consultation and collective action. As Associate Professor Tarun Khaitan, Future Fellow at Melbourne Law School and Professor of Public Law and Legal Theory at Oxford University, notes, “India has a long tradition of social movements that are not necessarily without leaders but are necessarily more consultative and communitarian in their orientation. And that got completely lost in the Western media’s representation.”

This question of representation runs parallel to Section 377’s relationship to British colonialism itself. Instituted by Lord Babington Macaulay in 1860, the Indian Penal Code functioned, as Human Rights Watch puts it, as “a colonial attempt to set standards of behaviour, both to reform the colonised and to protect the colonisers against moral lapses”. As Khaitan points out, the impact of the Code and Section 377 spread far beyond India, operating as a template from which to elide difference and modify the behaviour of the colonised all over the world. “The Indian Penal Code became a model for all the other colonies,” says Khaitan. “The presumption was that they are all the same anyway.”

It is a legacy that still has an impact today, as many former colonies work to free themselves from legal shackles instituted over a century ago. In June 2019, Botswana decriminalised homosexuality (citing the Indian ruling from 2018), but, one month prior, Kenya voted to retain the legal strictures around same-sex relations.

Of the more than 70 countries around the world which still criminalise gay sex, over half are former British colonies. According to Professor Jeff Redding, Senior Research Fellow at MLS, it is a difficult legacy to negotiate: “Nationalists in most decolonised countries replicated colonial forms of governance. And, as a result, all of us have serious and hard work to do in order to achieve societies where social and cultural differences are not treated as pathologies that we need to extirpate.”

This “hard work” is happening in the courts and in the streets, but when media reporting simplifies that work, it can have negative effects. As Khaitan explains, “Hero worship is damaging to social movements, particularly when that hero worship is selective and uneducated.” For the LGBTIQ+ community in India, the repeal of Section 377 was decades in the making. For activists across the former British colonies, it is just the beginning.

Banner Image Credit: Arpan Basuchowdhury

This article originally appeared in MLS News, Issue 22, November 2019