Section 377: A British legacy from which we have finally broken free

The century-old the law against homosexuality was imposed on pre-independent India in accordance with the Christian principles on which the British kingdom was founded.

Written by Adrija Roychowdhury | New Delhi | Updated: September 6, 2018 4:32:02 pm
Homosexuality, Section 377, section 377 verdict, section 377 supreme court verdict, section 377 ipc, section 377 ipc punishment, section 377 colonial era law, section 377 british law, India News, Indian Express Homosexuality in the words of British politician Thomas Coke was considered “a detestable and abominable sin…committed by carnal knowledge against the ordinance of the Creator.” (File)

India was introduced to the law against homosexuality almost 80 years before it became independent. At its zenith, the British Empire as part of its ‘civilising mission’ imposed the criminal law of England, including the anti-sodomy law, on its colonies. While the United Kingdom Parliament legalised homosexuality in England and Wales way back in 1967, and in Scotland in 1980, several British colonies — India until today — are yet to junk the colonial-era law.

“The early history of England incorporated in its common law an offence of ‘sodomy’ in the context of the provision of protection against those who endangered the Christian principles on which the kingdom was founded,” writes Australian jurist and academic Michael Kirby in his article, “The sodomy offence: England’s least lovely criminal law export?”. This was back in the thirteenth century when England was yet to experience the Catholic Reformation and there were barely any lines distinguishing the Roman Church from the State. At this point in time, the law was targeted not just on homosexuality, but on any kind of sexual activity that was not done with the intention of procreation. Therefore, the law was directed towards anybody considered a ‘polluter’ including Jews, heretics, lepers, prostitutes, and sodomites.

Homosexuality, Section 377, section 377 verdict, section 377 supreme court verdict, section 377 ipc, section 377 ipc punishment, section 377 colonial era law, section 377 british law, India News, Indian Express The British Empire as part of its ‘civilising mission’ imposed the criminal law of England, including the anti-sodomy law, on its colonies. (File)

When England experienced the Catholic reformation under Henry VII, and the English church severed its ties with Rome, the English common law had to be revised. The statute of 1533 considered sodomy a crime under the description of the “detestable and abominable Vice of Buggery committed with mankind or beast”. The Buggery Act of 1533 was the country’s first civil law against sodomy. The offence was made punishable by death.

Under the reign of Mary I who was the descendant of Henry VII, the statute was repealed with the intention that the Church would take decisions on such matters. However, it was re-enacted by Parliament under the reign of Elizabeth I in 1563. By now, a number of writers on English law wrote extensively on how grave the offence of sodomy is.

Consider this piece of writing by British politician Thomas Coke, “Buggery is a detestable and abominable sin, amongst Christians not to be named…It is committed by carnal knowledge against the ordinance of the Creator and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast.” Similar views were also expressed by English jurist William Blackstone who considered the law to be the most precious piece of legislation that English law passed on to its people.

Law against homosexuality in British colonies

Kirby writes that over 80 countries of the world had or still have laws against homosexuality. Over half of these were those that were at some point in time governed by the British. The Indian Penal Code of 1860, often referred to as the Macaulay Code, after Thomas Babington Macaulay who was its principal author, was the foremost jurisdiction that criminalised homosexuality in India. Its impact was such that it was copied in several other British colonies like Fiji, Singapore, Malaysia, and Zambia. Section 377 of the code, that was followed up on at the Supreme Court today read as following: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 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.”

Over the years, the criminal laws implemented by British authorities in many of its colonies remained in place several years after the Crown stopped ruling them.  By the middle of the twentieth century, England itself though was undergoing rapid transformation in its understanding of its law against same-sex activities.

A growing body of scientific research in Europe and elsewhere, as well as an emerging global media,  ensured enough information being passed on to the public on the issue. Finally, in 1967, the United Kingdom Parliament changed the law for England and Wales. Several of its colonies though, are yet to come of its shadow.

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