Section 377 and the Colonization of the Mind

Indeed, while it is popular today to condemn the period of the Muslim rule in India as regressive and narrow minded, attitudes towards homosexuality were far more progressive among Muslim rulers than the British who replaced them.

There is a vibrant debate taking place in India over decriminalization of homosexuality. While the Supreme Court did not support the repeal of the antediluvian section 377 of the Indian Penal Code [IPC], popular culture is gradually becoming more accepting of homosexuality. Younger people especially exhibit more open attitudes to homosexuality. Yet a curious anomaly persists when it comes to the objection raised by some that homosexuality is un-Indian.

Despite the fact that it is mostly conservatives who oppose repeal of section 377 of the IPC on the grounds that homosexuality is a western concept the fact of the matter is that homosexuality was accepted in India during pre-colonial times

Indeed, while it is popular today to condemn the period of the Muslim rule in India as regressive and narrow minded, attitudes towards homosexuality were far more progressive among Muslim rulers than the British who replaced them. Scholars such as Saleem Kidwai speak of same sex relationships among noblemen “since the inception of Muslim rule in India.”[1]  Furthermore he describes Sufi poetry as “decidedly this-wordly in its homoeroticism.”[2] Even Mughal rulers opposed to homosexuality, such as Akbar, did not prosecute gays.

Uncovering and recognizing this openness in pre colonial culture can go a long way in correcting mistaken notions and myths about Indian barbarity and Muslim backwardness. Ratna Kapur discusses the othering of Muslims in contemporary times[3] and it is a very useful legitimization of this project to distort history and make it seem as if a seamless thread of Muslim backwardness runs through history. This makes contemporary depictions of Muslim backwardness seem natural.

Ira Trivedi sets the historical record straight when she says that “it is homophobia, not homosexuality, that is primarily a foreign import”[4] She explains how it is actually social reform movements of the 19th century in India that aimed to liberate Indians from supposedly retrograde ways of life that sowed the seeds of sexual Puritanism. As a result, “by the middle of the twentieth century, the country had become far less liberal on matters of sexuality.”[5] This is in stark contrast to earlier eras, when temple carvings freely depicted “same-sex couples copulating.”

In fact, Mahatma Gandhi stood apart from the tide of narrow-mindedness regarding homosexuality in modern India. While he was not someone who would be described today as a gay rights advocate, he did not share the retrograde views of many of his contemporaries. He eschewed differentiation between homosexual and heterosexual lust and according to the book “Same-Sex Love in India” advises those critical of homosexuality to focus on themselves rather than worry about others.

Indeed, empirical research reported on by the Washington Post confirms that it is British colonizers who imported anti-homosexuality laws into many of their colonies. The research further shows that the British were far more likely than other colonial powers to introduce anti-homosexuality laws in their colonies. It is extremely important therefore to recognize the hypocrisy of claiming that homosexuality is foreign.

It is equally important to recognize that state power can be a double edged sword. While many believe in state intervention in personal matters in the interest of progressive values, the sordid legacy of section 377 of the IPC reminds us that the British wished to further their agenda of anti-homosexuality ‘reform’ through the vehicle of the state as well. Indeed, many scholars have shown that this colonial proclivity to intervene in indigenous cultures by castigating them as backward continues in present day India. Consequently, contemporary governments should think twice before stereotyping and disempowering vulnerable minorities as the British did when they enacted section 377.

[This post has been contributed by Professor Sachin Dhawan. He is a Professor of Law at Jindal Global Law School, Sonipat.]

Featured Image: The Emperor Bahadur Shah II as painted by Ghulam Ali Khan. Credits: Wikimedia commons.

References:

[1] Same Sex Love in India

[2] Same Sex Love in India

[3] Erotic Justice

[4] The Indian in the Closet

[5] The Indian in the Closet

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