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print versionThe Guardian, 11 December 2013
The Delhi supreme court’s decision to uphold a law criminalising homosexuality is a servile adherence to colonial bigotry
A long-running campaign in India to end the unconscionable criminalising of same-sex relations between two consenting adults received a major blow today as the supreme court refused to uphold the Delhi high court’s 2009 decision striking down section 377 of the Indian penal code. The latter judgment, while an undoubted milestone, had somewhat prematurely been hailed as "legalising homosexuality in India". The distinctly Victorian nastiness of section 377 in fact forbids "carnal intercourse against the order of nature with any man, woman or animal". For India’s British colonial rulers this could have meant many things, including consensual fellatio between a man and a woman, but its squeamish machismo clearly had in mind penetrative sex between two adult males, a spectre that continues to terrify the morally correct across the world.
With the making of a new and relatively progressive constitution in 1950, the Indian state had the opportunity to revise the statute books entirely. This did not happen. Many colonial laws, including draconian statutes against "sedition" and "offending religious sensibilities" remained on the books. Rather than breaking with the moralising authoritarianism of the colonial state, its postcolonial successors in many parts of the world chose continuity. But, as the high court’s judgment pointed out in relation to section 377, this has meant violating the egalitarian ethos of independent India’s constitution, which explicitly upholds equality before the law and prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
The existence of a law targeting and criminalising homosexuality makes for an untenable contradiction; there can be no contest as to whether the Indian state should uphold its own constitution or keep dithering over the nonexistent merit of vicious 19th-century disciplinary frameworks. If the racial hierarchy put in place by the colonial state was unacceptable – and all fully postcolonial states enshrine this unacceptability in their very being – then so too is its outdated and punitive sexual order. You cannot have one without the other. As long as India continues to adhere to this sexual hierarchy it cannot be said to be fully culturally independent of Victorian Britain. No high growth indices or boasting about being an economic "powerhouse" can cover up the scandal of a servile adherence to colonial bigotry.
It is important to note, of course, that while the legislation itself is colonial, hostility to non-heterosexual and non-reproductive sexuality runs deep in many patriarchal cultures. Section 377 has allowed for bigots of various religious and moral persuasions to temporarily suspend their own opportunistic mutual hostilities and unite to make the case for persecuting sexual dissidents. While it is true that the legislation has rarely been used to prosecute homosexuality, its existence allows for intolerance and harassment. It also leaves the gate open for a future Hindu religious chauvinist government – not at all an impossibility in India’s near future – to exercise state violence against those it deems to be outliers. This possibility makes the repeal of the section particularly urgent and the supreme court’s suggestion that it needs to be debated in parliament is nothing more than, well, stonewalling. What sense is there in delaying a long overdue and emphatic rejection of discriminatory, indeed anti-Indian, laws? There is no more sense in permitting such a law remaining on the books than there would be in keeping one that prohibited darker-skinned people from acting as judges over light-skinned defendants or prevented women from joining the medical and legal professions, also Victorian colonial ideas.
Depressing as this latest setback has been, the commitment and courage shown by numerous civil rights organisations and campaigners continues to galvanise and inspire. It seems unthinkable that they will not prevail in the long run, with both right and the spirit of the constitution – whatever the supreme court’s current judgment – so clearly on their side. A poster held up by a young campaigner reads "Pyaar kiya koi chori nahi kee", a musical line from the film Mughal-e-Azam in which a courtesan who will be sentenced to death for daring to love a prince insists that she has loved someone, not stolen something. Indian legislation would be well advised to make this distinction between desire and crime, one that was so blurred for an empire that was happy to criminalise the harmless while it plundered and stole, all in the name of piety and righteousness.
• This article was amended on 12 December 2013. It originally stated that "Pyaar kiya koi chori nahi kee" was a line from the film Anarkali. This has now been corrected.
