In 1861, during British colonial rule, Section 377 was introduced into the Indian Penal Code: a law with origins in England’s Buggery Act of 1533. This marked, in Victorian language, India’s criminalisation of homosexuality. With the independence of India in 1947, Section 377 survived.
In 2009 the Delhi High Court, in response to a petition by the Naz Foundation, ruled that Section 377’s references to homosexual sex were unconstitutional, thus effectively decriminalising homosexuality. Various petitions attempted to challenge this ruling, one of which made it to the Supreme Court of India — who, in 2013, overturned the decision of the Delhi High Court, stating that only parliament, not the judiciary, can make such a judgement. Once again, homosexuality in India was criminalised. The latest Supreme Court ruling on 6th September 2018, the result of six petitions by gay professionals and activists, has decreed that the parts of Section 377 referring to homosexual sex between adults are unconstitutional. India has (once again) decriminalised homosexuality.
Writing in the New Yorker on this historic ruling on gay rights, Samanth Subramanian makes two astute points in the context of those who pitch this legal victory as one of an authentic, sexually liberal India over an antiquated, sexually illiberal British colonialism. He states:
Old Hindu myths, like Greek ones, are propelled by the sexual needs of gods and goddesses, and the stories placidly accept the fluidity of gender, lust, and love. As a result, some critics of Section 377 like to argue that opposing homosexuality is foreign to India—that a restrained approach to sex arrived here in the baggage of other religions. It’s a strange and dangerous argument: using ancient yarns to justify a liberty is just a beat away from using them to justify a bias or a constraint. Regardless, since 1947, when India became independent, its society has stayed conservative enough to look on homosexuality with disfavor, and striking Section 377 from the penal code has never been a political priority. “We believe that homosexuality is an unnatural act and cannot be supported,” Rajnath
Singh, now India’s Home Minister, said in 2013, months before his party came to power.
On the actual reality of the ruling, Subramanian cautions:
A country decolonises itself slowly. The Supreme Court’s decision on Section 377 snips away one more tether binding India to its colonial past. But the verdict resembles a strong beam of light only because it pierces through the stormy, illiberal weather around it.
The other problems besetting India - a hideous right-wing Hindu nationalism; unpunished violence against minorities and lower castes; political corruption; arrests of civic activists under trumped-up accusations; yawning disparities of wealth; the spoiling, perishing environment — are all homemade. They cannot be blamed on anyone else; that heaviness of responsibility is part of the compact of growing up. For allowing these dysfunctions to flare, and for failing to stamp them out, India will be able to blame no one but herself.
Of relevance here is Karl Marx’s essay ‘On “The Jewish Question”‘ (1843), in particular, his exploration of the relationship of political to human emancipation. Marx insists on a critique of political emancipation in order to expose the relationship of political emancipation to human emancipation. He acknowledges the “great […] real, practical” progress of political emancipation, but on its limits he argues that while the capitalist state abolishes in its own way the distinctions of class, birth, profession, and education, by declaring them “to be unpolitical differences”, it allows them “to have an effect in their own manner. Hence humankind leads a twofold existence: “a heavenly one and an earthy one”; the former as communal beings in political community and the latter as private, alienated, egoistic individuals in civil society:
Man [sic] was […] not freed from religion; he received freedom of religion. He was not freed from property; he received freedom of property. He was not freed from the egoism of trade; he received freedom to trade.
Marx deplores the debasement of theory, art, history, nature, and human relations itself by religion, property, commodities, and commerce, and concludes that our liberation is contingent not merely on political emancipation but on human emancipation too.
The recent repeal of key parts of Section 377 is hugely significant progress for gay rights in India, demonstrating (paraphrasing Marx) the great, real, and practical progress of political emancipation. However, the current conditions of existence in India are such that gay sexuality will continue to be shamed and oppressed by dominant relations and forces of power, but now without the use of this law.
Political emancipation is one decisive step forward, what’s next is the fight for human emancipation which, in India today, involves a struggle against religious patriarchy fused with capitalist social relations.
Karl Marx ( 1977) On ‘The Jewish Question’. Karl Marx: Selected Writings, edited by David McLellan.
Samanth Subramanian (2018) ‘India’s Historic Gay-Rights Ruling and the Slow March of Progress’. New Yorker, 6 September 2018.