Constructing Commonalities. Deconstructing Geographies.

Legacy of British Constitution in Independent India and Section 377

with 3 comments

British Prime Minister Gordon Brown, left, shaking hands with Indian Prime Minister Manmohan Singh in New Delhi, India.

British Prime Minister Gordon Brown, left, shaking hands with Indian Prime Minister Manmohan Singh in New Delhi, India.

The British gave Indians a lot of things. Out of all the legacies that the English left, the most cherished and loved is the language itself. English is not the language of the elite in India but the language that is understood by even the masses to some extent. A language that is understood and assumed to be the ticket to success and a great professional life. Thanks to the British, Indians also got the railways, iron and steel plants, press, abolition of crimes such as widow burning and child marriage. The British constitution during the early part of the 20th century is what makes up Indian constitution today. British laws are revered and honoured, venerated and admired for their clarity and reason.

However, the bubble soon bursts when you encounter the infamous Section 377. In 1860, the English criminalized homosexuality in India, in a country where homosexuality was frowned upon but not criminalized. ‘Sodomy’ was made punishable by 10 years in prison and hefty fines were collected from those who were suspected to be homosexuals. Indians were especially thankful for this law, as the Indian society has been traditionally conservative and abhorrent towards topics related to sex, be it heterosexuality or homosexuality. If the British had to say something is wrong, it just had to be so.

Though the British can’t be blamed for the law, it can be safely said that the colonial subservience present among Indians still make it almost impossible to change the Section 377 which criminalizes ‘unnatural sex’. The law is used to intimidate men, extort money, sexually abuse male prisoners, and further stigmatize the already self-hating LGBT community of India. Lesbians do not come into picture because, strangely, lesbians do not get criminally implicated as often as men do. This perhaps is due to the lack of ‘sodomy’ in a lesbian relationship.

Gay men in India are perhaps responsible for their continued abuse by the society and the law, because they let themselves be abused, fearing societal consequences and out of fear of the truth coming out in the open. What is feared more than the lonely existence behind the bars for 10 years and sexual abuse by a cop is the abandonment by family members and being the objects of ridicule of the society and family. Vinay Chandran, a noted gay rights activist opines that just repealing the law against homosexuality would not work, until the society opens its mind and learns to accept people on the basis of what they are, but not whom they sleep with. Moreover, a law against child sex abuse needs to be strengthened for that is what the real problem is. Most children in India are sexually abused.

Indian Constitution for now continues to criminalize something that the British did away many decades ago. Recently, all the political parties of India agreed that homosexuality is ‘against the culture of India’ and needs to be criminalized. In fact, when the discussion was brought to the Indian parliament, there was a unanimous agreement that gays need to be prosecuted as legalizing homosexuality would create problems of law and order, encourage people to have illicit sex, break the family unit, offend the ‘spiritual force’, and spread sexually transmitted diseases. Unfortunately, most Sexually Transmitted Diseases in India are spread through contaminated needles, heterosexual men and prostitutes. Indian society is basically a homophobic society that does not value the life of LGBT people and consider them as deviants and as being against the law of nature. This attitude perhaps needs to be changed through education and awareness campaigns.

How far India will successfully be able to overcome its homophobia, allow its gay citizens to lead a life that does not have the threat of being imprisoned for 10 years, depends on homosexuals themselves, who need to come out in the open and discuss. Though one cannot expect the average citizen to reveal his/her sexual orientation in India, prominent gay people who have led lives behind the closet need to come out and push the government to decriminalize homosexuality. Organizations that have been working for the cause of gay people need to be supported by media, philanthropists and academics. Organizations such as Humsafar, The Naz Foundation, Sangama, Swabhava and many others need to be supported financially and politically. This would help the organizations to continue their work, and also help create educative materials to tackle homophobia.

It perhaps is inane to blame the British constitution, when Indians are still stuck with a law that has been done away by the British long time ago. Someone rightly said that the last Englishman could be found in India. Indian lawmakers need to realize that homosexuality is not ‘against the culture of India’ and that lurid paintings and sculptures depicting homosexuality can be found in ancient temples and texts, which imply that homosexuality is present in all cultures in the same frequency. Homosexuality has no borders and is not related to the culture of a country. In a modern democratic country that likes to follow everything that is western, it perhaps is hypocritical to talk about culture. Culture has nothing to do with who you sleep with.


A list of LGBT organizations can be found here. The Naz Foundation in New Delhi has been working actively in the National Capital territory and has been working on getting the Section 377 repealed. Vinay Chandran can be contacted at Swabhava.

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Via: GreatReporter

Written by Jaiyant Cavale

November 4, 2008 at 9:16 pm

Posted in LGBT

Tagged with , , , , ,

3 Responses

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  1. Laws do not change a culture. It’s people and a huge investment in time that change the sum total of a people’s way of thinking. Would you know of any legislated mandate against homophobia anywhere in the world? There might be one that comes to my mind presently. There is a revision in the Civil Rights Act of the US that includes sexual orientation as something that should not be discriminated against.

    Ronan Travis

    November 5, 2008 at 6:56 am

  2. A very good and well balanced post. I just wrote a post on this same topic, but from the point of view of my blog, which is trying to probe the endless past of the civilizations.

    This topic seems very hot all over the world.

    The organisation Human Rights Watch has recently published a 66-page report describing “how laws in over three dozen countries, from India to Uganda and from Nigeria to Papua New Guinea, derive from a single law on homosexual conduct that British colonial rulers imposed on India in 1860.”

    We are also at a time when French President Nicolas Sarkozy has just proposed to the UN to decriminalize homosexual acts all over the world, and all 27 European nations have agreed. The Church of Rome is instead strongly against it.

    I’m not here to market my blog, although a comment from someone with higher knowledge on the Sub-Continent would be really welcome.

    All the best wishes from Rome, Italy

    Man of Roma

    Man of Roma

    December 21, 2008 at 1:14 pm

  3. […] very well balanced post by IssuesBeyondBorders: Legacy of British Constitution in Independent India and Section 377 Possibly related posts: (automatically generated)Permanences IILegacy of British Constitution in […]

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