On 6 September 2018, the Indian Supreme court overturned Section 377 of the 1861 Indian Penal Code. The ruling decriminalised consensual homosexual sex – a decision which signals India’s transition not only towards sexual liberation but also away from its colonial past.
As members of the LGBT+ community celebrated the ruling, prominent activist Harish Iyer proclaimed: ‘I’m elated… We have thrown out the British once again.”
This landmark decision provides a framework for exploring the surviving impact of colonial rule, a practice used by the British empire to transplant their ethical codes and cultural modes into the countries they ruled.
As Section 377 illustrates, throughout the colonial era, the British claimed both India’s land and its right to set its own social or moral consensus through legislation. The law, which encapsulated the Victorian spirit of Christian moral purity, criminalised what the British defined as sex acts which fell outside of the ‘the order of nature’. Thus, for the next 157 years, the sexual liberty of Indian LGBT+ individuals was to be defined and policed by a loosely defined notion of what falls under this heteronormative ‘order’.
India today is an independent state responsible for its own laws, with legislative authority reassigned from Britain and India in 1947. However, section 377 demonstrates the reality that, whilst the British left India over 70 years ago, many of their social codes and political tactics remained and are even kept alive today through current legislation. For example, The Law of Sedition (Section 124A of the Indian Penal Code), initially drafted by the British in order to quell opposition from anti-colonialist leaders, is still in place, employed today to curb public criticism of the government. Although in 1962, the Supreme Court made incitement to violence a condition for arrest, human rights campaigners claim that authorities still make arrests even when such conditions are not met. For example, Kanhaiya Kumar was arrested in 2016 for alleged anti-India slogans during a university protest. In 2014, M Salman was charged with sedition for allegedly sitting while the national anthem played at a movie theatre. The court rejected his bail, citing his behaviour as anti-national. This year, journalist Kamal Shukla was charged with sedition for sharing a cartoon which allegedly mocked the judiciary and the Indian government. Thus, the Sedition law, deeply rooted in the commanding authority of British rule, serves as an example of the Indian government using anachronistic policies inherited from the British to deal with dissent -with the consequence of stifling free speech and silencing the voices of journalists, activists, students and the general public.
Here, we can see that colonialism was not just the material ruling of a foreign land and its people, but the spreading of British values to other nations. Such values were ingrained into the national consciousness of colonised countries, being passed through generations and upheld by cultural practices and through law. Consequently, in former colonies, the presence of the British empire lingers like a phantom limb, with its ideas and practices surviving centuries after its detachment.
As we have seen, a number of ‘backwards’ policies which the West claim superiority over due to our contrastingly ‘progressive’ Eurocentric values, are the same values which the British itself introduced and legitimised through law. These attitudes, however, are changing, and the repeal of Section 377 has been regarded as one of many attempts to decolonise the law in India and to dismantle the remnants of its past in favour of forwarding progress. Also in 2018, India’s supreme court decriminalised adultery, a colonial-era law entrenched in antiquated notions of traditional morality based on the institution of marriage. The law, which only applied to men, defining adultery as ‘sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man’, was rightfully recognised by the court as discriminatory against women, denying their human agency and placing them under the ownership of men. Thus, by striking down this law, the Indian court recognised the agency of women as individuals, not simply as wives or victims whilst ceasing the unfair conviction of men for a crime women are equally capable of committing or being responsible for.
The British empire was vast and its legal and cultural legacy widespread. Thus, the eradication of its past legislation reaches an international level, with other countries following India’s path in extinguishing anti-LGBT legislation, for example. The importance of Britain in the past and future of global same-sex rights has been acknowledged by world leaders. In 2016, Theresa May expressed ‘deep regret’ for colonial LGBT laws, urging commonwealth nations to overhaul them. Ahead of the 2018 Commonwealth summit, the UK based Peter Tatchell foundation issued to Commonwealth officials a strategy for the reversal of anti-LGBT laws, stating ‘Criticism and condemnation of anti-gay countries won’t work and will be counter-productive; especially if it comes from western nations like Britain, Canada and Australia. This would be construed as western diktat and neo-colonialism.’
The move to decriminalise homosexual relations in former colonies is showing signs of success. In 2018, Trinidad and Tobago deemed its sodomy law unconstitutional. During the trial, Justice Devindra Rampersad stated that the retention of the law had “everything to do with homosexuality and the colonial abhorrence to the practice.” Meanwhile, as Kenya shares many colonial laws with India, the recent ruling of the latter has revived activist led challenges to British-enacted anti-sodomy laws in court. Outright International maps similar legal challenges that have arisen in ex-colonies, stating that hearings are to be heard in Jamaica and Singapore.
The dismantling of Britain’s colonial legacy is a slow but vital process and, whilst Britain is not solely responsible for the current laws and attitudes of its former colonies, we must not forget its historical contribution to the very policies and cultural attitudes we lambaste as unprogressive – You cannot plant a seed and then detach yourself from the consequences of its growth. Today, India and other countries from the British empire can use their political autonomy as independent nations to recognise anti LGBT and anti-freedom laws as outmoded relics from their colonial past. With the repealing of same-sex laws, we can see these changes continuing to materialise in an increasingly progressive world.