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Blustering Sahibs and Section 377

This Alien Legacy: The Origins of "Sodomy" Laws in British Colonialism, Human Rights Watch

Blustering Sahibs and Section 377

Alexander Bubb

M
any societies have claimed that homosexuality is an alien custom, brought to their shores by the merchants, missionaries or colonists of other nations. Arab writers have attributed its presence to Persian influence, while the Persians passed on the blame to Nestorian Christians. John Boswell has written of how the diehard Anglo-Saxon aristocracy used it to discredit their N orman invaders, initiating a long tradition of parochial English squinting at the Continent’s vices (Vanita and Kidwai 2000). In India today it is pinned by turns on the Afghan dynasties which brought the Rubaiyat and the naach to the subcontinent, the ever-predatory British imperialist, or the glamorous lure of American capitalism. Will nobody own up to the “ invention” of same-sex love, or are we to assume that the practice was kept alive by a few regenerates who crawled from the ashes of Sodom and Gomorrah?

There is a rather conspiratorial mindset which assumes that homosexuality is like a secret society, a sort of free-love freemasonry which surreptitiously evangelises its initiates through various odd practices and queer rites. Of course homosexuality was never invented. It is, for reasons mysterious, intrinsic to the makeup of a large section of the population worldwide, including many who do not consider themselves “gay”. Anyone who grew up in a small Indian town, at least before the current debate on homosexual rights began, will know that the masti (horseplay) indulged in by young men, who will generally go on to get married, was something either winked at or not thought of at all. Rather, the individual’s homosexual orientation comes first, he or she seeks out like-minded fellows, and culture develops around that.

The beginnings are the same, but different societies have found various means of incorporating alternative sexualities in their civil spectrum. For patriarchal

Economic & Political Weekly

EPW
august 29, 2009

review article

This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism, Human Rights Watch,

2008; http://www.hrw.org/en/reports/2008/12/17/alienlegacy-0s

reasons, methods of sexual-social mobility have mostly been devised for the benefit of men. In ancient Greece mature men were expected to marry, but within the culture of the gymnasia and the academy they were also permitted the society of youths. The monastic foundations of Tibet have traditionally found means for those in vows to contract alliances, when necessary, with laymen of their own sex. India cannot be logically excluded. It is true that the educated youth from which most gay activists are drawn tend to model themselves after their political forbears in the west, but the social niches occupied by hijras and kothis (homosexual men who dress as women) are indigenous to India. The legacy left by ancient Sanskrit literature is a fluid view of human sexuality (ibid). Aristophanes charmingly suggested that we humans, the paired fragments of once mightier beings, sought reunion with our more perfect selves through coupling either with another man, another woman, or one of a different sex. But easily pre-dating him, scholars have found that the concept of three sexes – man, woman, or hermaphrodite, “has been a part of the Indian worldview for more than three thousand years”. Same-sex love is discussed in texts as diverse as Patanjali’s grammer, the Strinirvanaprakarana and the Kamasutra, although unlike the Greek sources, the Indians seem to allow for a more fluid interchange between h etero and homosexuality.

Witch Burning Paranoia

What is an “alien legacy” however, as the report of Human Rights Watch amply demonstrates, is the entrenchment and

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dualisation of these two definitions originally devised by European sexologists of the 19th century. The report outlines how Section 377 was a British invention, criminalising homosexual behaviour in colonies which had not previously done so. The rather cold and often cruel rulings of Freudian psychoanalysis went iron hand in velvet glove with the more familiar categorisation, legislation and regulation of social behaviour through which British Utilitarianism’s imperial enthusiasts sought to mould this country to their liking. The report traces the origin of the British criminalisation of homosexuality to the witch-burning paranoia of 16th century Puritanism, “sodomy” being one of many supposed moral corruptions associated with the departing order of the old church (p 14).1 The early to mid-19th century saw another kind of moral purge, as an aspiring middle class won reluctant concessions of democratic rights, before imposing the rigid behavioural standards which ensured that the impoverished workforce who underpinned their industrial wealth would not in turn demand a life, liberty and happiness of their own. This was a time which saw a great expansion of British power but an equivalent narrowing of national life: a regulation of her festivities, a uniform streetscape, a spying moral brigade which enforced both a cloying ideal of Christian virtue and a mandatory and arrogating Britishness. To cap it all off and keep it running smoothly: a faceless bureaucracy, the omnipresent constable, the workhouse, and an efficient criminal justice system.

As Ashis Nandy (1988) has written, the whole regulatory attitude of this brave new country was so unimaginatively thorough, it could only have begun as a germ in the colonial mind. It was the British taste for despotic rule in India which moulded the hypocritical and classridden nanny society – and harsh laws – of Victorian Britain. The report shows how

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India was the first of many “passive laboratories” for British ideas of how to construct a society, and how to construct a person (p 15). T B Macaulay’s penal code was the moral tool of an invasive state which sought to define, categorise and legislate for everything within its remit, including people. The Indian Penal Code was the prototype code for the British Empire – both the code and its Section 377 were replicated not only throughout the colonies, but also provided the template for the reformed sexual laws of Great Britain itself (p 15). Britain may have exported zealous Utilitarians and Evangelicals to India, but the moral codes they were allowed to enshrine there were exported back to Britain. The prosecution of citizens for their sexual preference, therefore is an unhappy legacy not only foisted by Britain on India, but also bequeathed to both countries by the tyrannic rationale of colonialism. The disapproving finger of Queen Victoria wags on throughout much of the former Empire, but thankfully she has been shown the door in Britain, South Africa, Fiji, Hong Kong and now Delhi.

Why did the British choose to criminalise homosexuality in a country with virtually no legal precedent for it? Indian prece dents were of no concern to Macaulay. For him, universal moral arbitration emanated from absolute British sovereignty, and he had no truck with the “Anglo-Hindu” or “Anglo-Mohammadan” codes of customary law drafted by officers like William Jones which, incidentally, did not concern themselves with a crime named for a mythical city of the Christian Old Testament. Macaulay’s dream was to bring India culturally in line with rightthinking Britain. Sexually, this meant teaching a slovenly tropical country to stand up straight. Victorian racists such as the explorer Richard Burton associated sexual deviance with sultry climates (p 16). In time-honoured fashion, Britain blamed its h omosexuals on someone else – buggery was “the Greek vice”. But then to quote another character from E M Forster’s Maurice “England has always been disinclined to accept human nature”. As with Greece, the British saw in India a noble ancient fabric riddled with debaucheries. How ever, they were struck with admiration for much of the culture of their bewilderingly large dependency, and with the hypocrisy characteristic of their age they set about the sacred duty of “reform”. They edited Sanskrit texts, covered or defaced “obscene” temple carvings, fantasised about rescuing scantily-clad women from funeral pyres and imprisoning their wicked relatives. They airbrushed out the corrupt accretions that had gathered like rust on an Ashokan pillar, helping Indian culture, so they thought, to realise its better self, and consigning all the verve and reality of history to a museum plinth. In short, they tried to make India “respectable”.

An Alien Respectability

But there is another reason besides Victorian prudishness why the British chose to legislate sexuality in India, and that was a fear of contagion. The reformers sought to maintain their own monopoly on respectability. The draconian prosecution of laws such as Section 377 was arguably less significant for civilising wayward Indians than punishing the peccadilloes

august 29, 2009 vol xliv no 35

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of sex-starved colonial personnel (p 49). Many will be familiar with the comic portrait of the British sahib with his swagger stick and solar topi. But what really makes this figure ludicrous, and rather pathetic, is his helpless dependence on the strutting a ssertion of his own masculinity. Much of the paraphernalia of British rule – from cricket to Martial Race Theory – hinged on an ideal of manhood (and gentlemanhood) embodied by the Englishman. Sexually speaking, he who could maintain a stiff upper lip was one who could restrain his stiffness elsewhere. Opportunistic s exual experimentation in an environment less beset by moral surveillance not only signified loss of manly resolve and consequent colonial prestige. To minds so warped as to think they were occupying their rightful position as the serene and pure master race at the summit of a dizzying caste hierarchy, copulation with any “native” implied defilement. Indeed, “loss of caste” was a term frequently used by the British in India to mean social disgrace. Worse, making love to an Indian man implied equality with that man, or perhaps even more than equality. “ Sodomy” was unacceptable because it undermined the racist and masculinist pretext of colonial rule.

An important point made by the report is that whatever Macaulay’s original intentions, the law as it has been applied in court and amended by government – not just in India – has been moulded to prosecute not so much an act as a person. It cites a series of depressing examples of convictions based on the most insidious brand of “character evidence”. The colonial state victimised so-called “habitual catamites” on the grounds of effeminate behaviour or dress, or sought to prove their guilt of “unnatural” sex acts by subjecting them to medical examinations as cruel and coerced as they were medically quackish and evidentially useless (p 33). Such practices, ironically always more sadistic and perverse than anything of which the h omosexuals themselves are accused, continue to serve the purpose of intimidating those who d eviate from social norms.

Whatever one may make of Foucault (1978), he was astute in pointing out that while moralists might profess disgust for

Economic & Political Weekly

EPW
august 29, 2009

“unnatural” sex acts (they are in fact

salaciously fascinated by them), it is

the concept of the homosexual lifestyle

that really disturbs them. By rejecting be

havioural norms, homosexuals are pre

sumed to threaten the social structure of

family and marriage. They do this only

inasmuch as they undermine gender

roles, the ways in which men and women

are expected to behave, which are of

course prescribed by patriarchy. Homo

sexuals do not threaten the family. They

threaten the power structure of the

family. The colonial state’s decision to

legislate against them was analogous to

its victimisation of the so-called “criminal

tribes”, who did not threaten, as sup

posed, the security of the highways but

the security of those who controlled or

wished to control the land. The two legal

drives came together to persecute the

person of the hijra. Defined as both a

criminal tribe and a sexual deviant, the

hijra was everything the British loathed:

a contradiction of official masculinity, a

roving population hard to police, and a

pagan oddity who had no place in the

purified version of Indian culture. For the

colonial courts, the very appearance of

the hijras was enough to prove their guilt

under Section 377 (pp 28-29).

Of course, there was no single school of

thought which determined the govern

ance of India. The colonial camp housed

many contending voices. But what really

mattered in the long run was the way in

which Indians shaped themselves and

their society in response to the expecta

tions of the imperialists. As in Victorian

Britain, an educated middle class emerged

to become the guardians and enforcers of

official, colonial morality. Macaulay’s chil

dren fulfilled all his wishes, up to and in

cluding their fostering of a national spirit

and securing of independence. But even if

in an effort to assert a modern Indian

identity they have kicked against the colo

nial heritage, their assumption of three

British characteristics – the belief that the

state can author private morality, the reli

ance on prescribed gender roles, and the

reinterpretation and “purification” of

I ndian culture – keeps them in the impe

rial shadow. If the British tried to remake

India in their own Victorian image, then

the measure of their success is the degree

vol xliv no 35

to which India is still infatuated with that outdated vision of itself.

A Minuscule Minority?

Queen Victoria is most certainly amused, because as a result of this “alien legacy” a queer thing has been happening recently. Whether they oppose the Delhi High Court’s ruling prohibiting discrimination on the grounds of sexual orientation or support only the decriminalisation of homosexual ity on the basis of right to health, homophobes are united by the trait of echoing the words of long-dead British colonialists.2

A reading of the report might ruffle the smooth prose of Swapan Dasgupta (Pioneer, 5 July 2009). He makes a gesture towards an accommodation of gay Indians, who reassuringly constitute only a “minusculinity” of the population. Dasgupta’s implication is that gay interest inhabits only the westernised urban elite, an inaccurate and patronising view which exposes the gay community to accusations of both i rrelevance and un-Indianness. Dasgupta concedes the gays their freedom from prosecution, but dismisses the idea of a gay identity as a newfangled and chimerical import to which the state should reply by reasserting “family values”. While not quite Victorian, his preoccupation with res pectability leads him to a notion of polite homosexual life anchored somewhere in 1950s Cambridge. The nation’s views of “ordinary decencies” have changed, he says, so that “decent individuals” such as Vikram Seth or Forster can indulge their perversion provided they do the decent thing and do not flaunt an “in-your-facegayness”. What the columnist fails to realise is that just as Forster was only able to survive within the intellectual sanctuary of the college – while his fellow Kingsman Alan Turing, the inventor of the computer, was arrested and driven to suicide for daring to show that he kept a male lover in his private home – the real victims of Section 377 are usually not Vikram Seth, but the hijras and working-class kothis who are beaten and raped by the bigoted police. Those among them who vent a gay identity are not in-your-face. Rather, the state gets into their faces with its laws and lathis, and what choice have they but to respond with a united voice? Why

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should we make concessions to a “minuscule m ino rity” like the Congress, asked the Viceroy Lord Curzon. They do not represent the “real India”. But as with the freedom-fighters, Dasgupta’s “minusculinity” are the few who speak out and give a voice to silent millions.

But Dasgupta could never countenance this analogy. Like Curzon, he believes in a “real” or “village India”. He would never suggest that the denizens of this pure moral zone should be consulted on far-reaching legislation, but they make a useful hook on which to hang spurious generalisations of Indian culture. It must be said to his credit that he does not allow his cultural definitions to cloud his verdict on the injustice of the law, and so it is unfortunate that he insists on society’s protection from moral pollution. Whose society does he mean? This position is taken to absurd heights in the appeal filed in the Supreme Court by the astrologer Kaushal. As patronising and paranoid as the most sun-addled British officer, this raving appeal first claims that the legalisation will lead to a venereal epidemic. Then it suggests that the Indian army will lose its glaciated resolve and turn pansy (always a worry for the lonely British frontiersman, who associated the local Pathans with boy-abducting as much as throat-cutting). Lastly, its bourgeois authors have the t emerity to suggest that it speaks on the behalf of what it condescendingly refers to as “a conservative and primitive society” which “still remains in social and cultural age of early 1900s”. I believe the citizen to whom the plaintiff refers is the “toiling ryot” beloved by Kipling, who does not know much but knows what is best for him.

It should not be presumed that a man of justice J S Verma’s intelligence shares these undemocratic sentiments, but even he falls into the unfortunate trap of echoing the narrow views of parochial Victorians. Just like the blushing British archaeologists who attempted to censor the erotic temple carvings, justice Verma declares the “unnatural sex exhibited at Khajuraho” an “aberration” which is not representative of the culture of ancient India. Consequently, he writes, let us not “ape the west” by incorporating it in our m odern culture.3 Ruth Vanita cites plenty of Sanskrit texts with which one could prove Verma mistaken, but let us instead consider whether he does have a point.

Both sides in the gay rights debate a ccuse the other of championing a foreign cause, but the greatest “alien legacy” afflicting India today is the relentless contest to define what is Indian and what is not. Any attempt of this sort is inevitably narrow and exclusionary, orthodox and ossifying. Even when undertaken by freedom fighters it was an obstacle to progress, for it remained rooted in a notion of “traditional India” that only ever existed in the imaginations of British mai-baaps. It was the reason Nehru toiled for almost a decade to enact the Hindu Code Bill. The only definition of India which even partially severed the Victorian fetters was that of Gandhi, for it stressed India’s limitless diversity and “faculty for assimilation” in contrast to the stultified, parochial, houseproud and systematised climate of contemporary Britain. It was this faith that the guiding spirit of the country need only be inclusiveness and equality which informed the Constitutional statutes that formed the backbone of the Delhi High Court ruling, and it is all the India of today should rely on. Anything to the contrary would have shown that the Orient had absorbed and assimilated a generation of baffled and blustering sahibs only too completely.

Email: alex_bubb@hotmail.com

Notes

1 The Report is available at http://www.hrw.org/ en/report/2008/12/17/alien-legacy-0. All page number references to this report are given in p arentheses in the main text.

2 Naz Foundation vs Union of India, writ petition no 7455/2001, Delhi High Court, decided on 2 July 2009.

3 Justice J S Verma’s comments on the Naz Foundation judgment, 24 July 2009, posted on Law and Other Things. Available at: http://lawandotherthings.blogspot.com/2009/07/justice-jsvermascomment-on-naz.html

References

Foucault, Michel (1978): The History of Sexuality Vol I, translated by Robert Hurley (New York: Random House, 1978, French original 1976).

Nandy, Ashis (1988): The Intimate Enemy: Loss and Recovery of Self Under Colonialism (Delhi: Oxford University Press).

Vanita, Ruth and Saleem Kidwai (2000): Same-Sex Love in India: Readings from Literature and History (Basingstoke: Macmillan).

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