The Supreme Court judgment reinstating Section 377 of the Indian Penal Code, the anti-sodomy law, nowhere states that same-sex relations are contrary to Indian traditions or culture, or will damage the family or society. In a democracy, fundamental rights conferred by the Constitution can be taken away from citizens only if an overriding social or national interest requires it.
The judges were perhaps not convinced by the appellants’ arguments that same-sex relations between consenting adults in private would damage society, morality and the nation. Therefore, the judgment simply states that Section 377 is not unconstitutional, but does not adduce any evidence.
However, those who agree with the judgment continue to assert that it proves the immorality and unnaturalness of same-sex relations whereas in fact it does not. The judges pointed out that Section 377 does not outlaw LGBT identities; it only outlaws certain acts (oral and anal sex) which occur between men and women too. Why, despite overwhelming evidence to the contrary, do so many people insist that same-sex relations are unnatural and immoral?
The answer has to do with Macaulay. In 1835, Macaulay famously stated that the British education system in India should create ‘a class of persons Indian in blood and colour, but English in tastes, in opinions, in morals and in intellect’.
Macaulay’s dream began to take shape only after the 1857 rebellion was crushed, and north India’s culture, along with Indian self-confidence, lay shattered. Macaulay headed the commission that instituted the penal code in 1860, and added Section 377 to it in 1861.
Section 377, which prescribes 10 years to life imprisonment for sodomy, was a progressive law for England at that time. England had for centuries been torturing men to death for having sexual relations with each other. But in India, as far as we know, no one had been executed for same-sex relations until the 16th century, when the Portuguese rulers in Goa burnt a boy to death for sodomy.
In Europe, sodomy was called the crime not to be named among Christians; that is why Oscar Wilde’s lover Lord Alfred Douglas coined the phrase ‘the love that dare not speak its name’. In India, same-sex sexuality was never unspeakable. Indians had been writing about it in numerous languages for centuries.
Over the next century, many Indians internalised the irrational fear of homosexuality (homophobia) that was dominant in England in Macaulay’s time. With regard to sexuality, to a great extent we absorbed English tastes, opinions and morals. But times have changed. Britain got rid of its anti-sodomy law in 1967, and today gay Englishmen and women are entitled to the same civil rights as non-gay ones.
Unfortunately and ironically, some Indians retain the English tastes, opinions and morals of Macaulay’s time, with regard to sexuality. Why fixate on being like or unlike the West? Why not, for a change, look Eastward?
Japan, which, like India, has a history of accepting the full spectrum of human sexuality, criminalised homosexuality for the first time in 1872 during the Meijei era, and then decriminalised it in 1880. Thailand decriminalised homosexuality in 1956. China decriminalised homosexuality in 1997, before the United States did in 2005.
So why should Indians feel that we are imitating the West if we confirm constitutional rights for LGBT citizens? Why not view ourselves as following Japan or Thailand? As long as we measure ourselves only by the West, we will not wake up from Macaulay’s dream.
Ruth Vanita is the co-editor of Same-Sex Love in India: A Literary History, and the author of Gender, Sex and the City: Urdu Rekhti Poetry 1780-1870.
The views expressed by the author are personal