India’s Supreme Court is moving quickly toward a decision on whether to overturn the country’s anti-gay law. If it does, which many people believe is likely, the decision would be “one of the largest leaps for human rights at any one time anywhere.”
The court is scheduled to take the first procedural steps tomorrow on the case challenging Section 377 of the Indian Penal Code, which bans sexual intimacy between men.
The case, along with several other high-profile cases, will be heard by a newly established five-judge panel. The creation of that panel, selected by Chief Justice Dipak Misra, was not without controversy. Four senior Supreme Court justices have complained publicly about not being included.
A decision to declare Section 377 inapplicable to consenting adults would … be applauded around the world. Based on simple population statistics, a decision to change the law would, at one shot, remove the stigma of being deemed a criminal from more than one-sixth of all LGBT people in the world. It would be one of the largest leaps for human rights at any one time anywhere.
It was always absurd to treat people as criminals for something intrinsic to them. It was always absurd that love between consenting adults is subject to the censure of the state.
And it was always absurd beyond belief that the 19th century British law that underpins this, continues to apply in such a different time and place. Last year marked the 50th anniversary of the UK removing the law itself, and yet that same proscription continues to apply in India.
India’s importance as the location for international businesses’ call centers has made LGBTI rights more important in modern India, the Economic Times stated:
One of the unexpected beneficiaries of the call-centre boom were young LGBT kids from middle-class families and small towns. At one time such kids would have had no option but to follow their families’ choices for them, getting married before they had any real chance to understand their sexualities. But call centres, with their constant need for new young workers, offered them jobs at just that young adult phase.
Homosexual activity was never condemned or criminalized in ancient India. Such activities were tolerated as long as people fulfilled the societal expectations of marriage and procreation.
This is the context in which the British came to India as part of their mission of colonial expansion.
In Great Britain, from the Middle Ages, heterosexuality was understood as the divinely ordered and natural norm for human sexuality, and any deviance from this norm was perceived as immoral and unnatural, and hence a sin against God. Christian sexual ethics based on heteronormativity thus led to the imposition of Sodomy Law in Great Britain.
The understanding of sexual ethics of the British colonial administration was deeply influenced by Victorian morality and its particular interpretation of the Judeo-Christian scripture and theology. So, the British authorities considered tolerance towards homosexuality as a social evil, and based on heteronormative principles, they initiated stringent measures to criminalize homoeroticism as part of their mission to civilize the heathens in India. In 1861, the British colonial administration imposed the Sodomy Laws in India to “purify” and “cure” the Indians of their primitive and deviant sexual practices. …
However, in 1967, the United Kingdom repealed the Sodomy laws, and the Church of England played a significant role in it. The first report in Britain, calling for decriminalization, was initiated and published by the Anglican Church. Further, there was a significant Anglican presence in the Wolfenden Committee, appointed by the government, which recommended to the Parliament to repeal the Sodomy Law.
In the contemporary context of growing fascism, it is important for us to understand the Sodomy Law as legal codes of fascism as they provide the State the power to intervene, invade, regulate, and monitor even the intimate spheres of human life. The Sodomy Law legally sanctions a regime of imperial gaze where the people are always under the surveillance of the State. This repressive legal code further reduces human body and sexuality into “colonies” that can be invaded, tamed, and redeemed with the display of abusive power by the law enforcement officers and the judiciary of the State, and the violent interventions of moral policing by the Religious Right.