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  • Rudra Sen

The Criminalisation of Homosexuality: A Colonial Legacy?

Colonisation in the Nineteenth and Twentieth Centuries resulted in the forceful transfer of laws and institutions from one society to another. Such a high degree of domination enabled the expansion of European society along with its norms and values. It also led to its control over culturally distinct societies in the world. British imperialism, for instance, endeavoured to rule and transform its colonies by using British laws as part of its "civilising mission". While the 20th Century witnessed the formal end of European colonisation, it did leave behind a legacy that is still prevalent in the legal systems of post-colonial states.

Noted author Devdutt Patnaik claims that while ancient India celebrated homosexuality, societal attitudes changed drastically during colonisation due to the imposition of Victorian norms. Wilhelm's book Tritya-Prakriti extensively examines various Sanskrit texts and finds that homosexual people existed in both ancient and medieval India with their identities being widely accepted too. The book also highlights the probable deliberate mistranslation of Sanskrit words by British scholars such as "swarini" - meaning "independent women" - used to refer to lesbians instead as "corrupt women". Such misinterpretations helped cover up the acknowledgment and recognition of homosexuality by Vedic literature. Hindu mythology also acknowledged same-sex intimacy and, for instance, was mentioned by Valmiki’s Ramayana wherein Hanuman witnessed intimacy between women in Lanka.

However, the Manusmriti, one of the oldest texts on Hindu laws dating back to the 2nd century BCE punished same-sex intimacy in ancient India. Patnaik agrees that although “pre-modern Hindu society wasn’t a paradise for homosexuals”, one cannot conclusively claim that opposition to gay rights stems out of Hinduism. He substantiates this argument by saying that penalties for same-sex relations in the Manusmriti were lighter, such as taking a part in a ritual bath for purification, in comparison to the death penalty for heterosexual wrongdoings like adultery.

Similarly, same-sex relationships were not new on the African continent. For instance, the 5th dynasty tombs of Niankhkhnum and Khnumhotep in Saqqara, Egypt are argued by a branch of scholars to be a tomb of a same-sex couple. While no text defines the relationship between the two individuals, the scenes and poses depicted on the tomb are usually used to depict husband and wife. Same-sex relations also existed among the Imbangala of Angola in the 16th century which was reported by an English traveler, Andrew Battell: “beastly in their living, for they have men in women’s apparel, whom they keepe among their wives”. Ethnographic evidence also showcases that tribes like Azande of Congo, Pangwe of Gabon, and the Nama of Namibia had same-sex relationships in pre-colonial Africa. Like the aforementioned mistranslation example in India, it is contended that Western anthropologists in the colonial era attempted to minimise and suppress same-sex sexuality in their pursuit to conform with colonial ideologies and practices.

Since the beginning of the 1860s, the British Empire started enforcing laws specifically aimed at male-to-male sexual relations in its colonies based on the colonial legal codes of India and Queensland. A significant reason behind the criminalisation of homosexuality in colonies was to ensure that British soldiers and administrators who were not married did not turn astray from the prevalent Victorian conceptions of sex. Additionally, Dr Han notes that the Empire wanted to protect its innocent soldiers from the "exotic Orient".

Such colonial norms can be traced back to the Buggery Act of 1533 which was passed under the rule of Henry VIII. The Buggery Act codified sodomy as an act against the will of God which was, upon conviction, punishable by death. The Act not only targeted men but also sodomy between men and women, as well as bestiality. Consequently, this law was used as a framework for certain sections of the Indian Penal Code (IPC) by Lord Thomas Babington Macaulay which came into force in 1862. Unlike the Buggery Act, it did not impose the death penalty instead those convicted were imprisoned for life. For example, Section 377 of the IPC states the following:

“Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life] or with impris­onment of either description for a term which may extend to ten years and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section".

India’s Supreme Court in 2018 ruled in favour of decriminalising homosexuality. The Indian government told the Supreme Court that they would not contest the aforementioned judgment, thereby ending the legacy of Victorian morality imposed on Indian society. It also marked the end of British law being imposed on queer citizens of independent India.

That being said, Section 377 still exists in some shape or form in many former British colonies. Countries like Uganda which still have similar laws are struggling to get rid of anti-gay laws that have facilitated arbitrary arrests, unfair trials and social exclusion. Another example is Kenya, where a significant proportion of the population believe that homosexuality is against their culture. On this issue Kenyan writer, Ngugi says that the “British empire on one sense ended, but its language is now the language of the world”. Singapore too continues to follow this colonial edict and its High Court has upheld the law that criminalises gay sex. In all these examples, the cross-cutting theme is the intertwining of one’s perceived culture with Victorian laws along with the inability to acknowledge one’s colonial past.

A study taking into account 185 countries revealed that former British colonies are more likely to criminalise homosexuality than other countries. Moreover, more than 70 percent of states with a British colonial past still criminalise homosexuality. In contrast to the British, the French did not leave such a legacy as they had decriminalised sodomy between consenting adults in 1791; this was subsequently spread by the French Empire. Despite this, the very same research shows that there is no substantial reasoning to show that British colonies should take longer than other former colonies to decriminalise anti-gay laws.

Hans and O’Mahoney’s research paper finds that legacy of British colonialism did and still has a detrimental impact on the rights and freedom of LGBT people around the world. They also suggest that acknowledging and emphasising this colonial past might help decriminalise such laws that did not originate from post-colonial states. Even though some scholars might still argue against the claim that British colonialism continues to have an adverse effect on LGBT rights and freedoms, former Prime Minister Theresa May’s statement to the Commonwealth nations further weakens their argument:

“I am all too aware that these laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK’s prime minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence, and even death that persists today”.

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