Dead Imperialists and 377

3 July 2009

Dead Imperialists and 377

 By Gwynne Dyer

It is 42 years since homosexual acts were legalised in Britain. A Labour government did that, of course, but now even the Conservatives have jumped on the bandwagon. The current Conservative leader, David Cameron, who will almost certainly be prime minister within a year, declared this week that just as his party gave Britain its first woman prime minister (Margaret Thatcher), so “we are bound to have the first black prime minister and the first gay prime minister.”

That remains to be seen, but things are moving on in the rest of the world, too. In India, they have finally done what the British did in 1967 and legalised homosexuality. But then, it was the British who criminalised same-sex relations in India in the first place.

For a century and a half, Section 377 of the Indian penal code, originally imposed by the country’s British rulers, prohibited “carnal intercourse against the order of nature with any man, woman or animal.” Nobody was gone to jail for breaking that law for years, but it made life a nightmare for Indian gays and lesbians. Corrupt police all over the country regularly used it as a pretext to shake them down for bribes, beat them up, and even rape them.

Now Section 377 is gone. On July 2nd the Delhi High Court handed down a 105-page decision that said: “The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone … Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized.”

It is no longer against the law to be gay in the world’s second biggest country, and the best thing about the ruling was the reason the judges gave for their decision. They didn’t let themselves be drawn into any foolish arguments about whether this or that kind of sexual behaviour was good or bad. They simply said that section 377 was at odds with the equal-opportunity provisions in the Indian Constitution.

It’s a useful reminder of what the politics of the past two centuries has really been about: the ever-widening application of the principle of equality until it includes every citizen of the country, even all the people in the world. The very first people in the Western world to abolish discrimination against homosexuals were the French revolutionaries, in 1791, and wherever the revolutionary armies went, the new policy went with them.

But the French Revolution was ultimately crushed, and during the 19th century, when European empires ruled almost the entire world, Europe’s own anti-gay laws were extended to most of the imperial possessions in Asia and Africa. Even a country like India, with its long tradition of tolerance for a wide variety of sexual preferences and practices, was forced into the same anti-gay legal regime.

Now it is emerging from that long darkness, only a few decades after Europe itself did. Moreover, the Delhi High Court has shown a clear understanding that what is at stake here is not sexual practices but human rights. It would have made precisely the same decision, on exactly the same legal principles, if it were dealing with caste discrimination, gender discrimination or racial discrimination.

Creating legal systems that genuinely respect human rights is a huge undertaking, and it may be another century before all people everywhere live under such legal regimes. It may be even longer before the police everywhere respect the law, and private citizens everywhere have really accepted the notion of equal rights for people who are different. But the lives of millions of people are changing for the better, and that matters.

Half a century after the collapse of the European empires, almost all the former colonial territories in Asia, apart from the Muslim countries, have revoked the laws that discriminated against homosexuals. Indeed, the only remaining bastions of discrimination are the ex-imperial territories of Africa (with the shining exception of South Africa), most of the smaller West Indian islands, and most Muslim countries (with the shining exception of Turkey).

Since China also legalised homosexuality twelve years ago, we have now arrived at a situation where at least three-quarters of the world’s people live in places where the law no longer criminalises gays. It shouldn’t have taken so long, and it should have been less of a cause for wonderment when it finally arrived, but this actually does qualify as real progress on human rights.

It’s not over yet in India. The High Court judgement only applies to Delhi, strictly speaking, although other jurisdictions will find it hard to ignore the precedent created by this decision. However, various hard-line religious leaders in India are condemning the judgement and demanding legislation to reverse it.

“We are totally against such a practice as it is not our tradition or culture,” said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council. “This Western culture cannot be permitted in our country,” said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow. Neither of them, presumably, has ever seen the Khajuraho paintings, or learned anything about India’s pre-colonial history.

But they will not win. Already, the newly re-elected Congress government is talking about re-writing the law so that all discrimination against minority sexual orientations becomes illegal. The clock will not be turned back.


To shorten to 725 words, omit paragraphs 12, 13 and 14. (“It’s not…turned back”)