I think this is an important story. Views on LGBTQ issues are shifting globally and presage massive change. The history of colonialism endures in ways invisible to most. But I am not Indian, and do not have the lived experience to tell you about what that’s like. Read that here and here.
Until Thursday, India retained an old law that made any "carnal intercourse against the order of nature” illegal and punishable by life in prison. It was challenged and overturned as unconstitutional by the Delhi High Court in 2009, but reinstated by the Supreme Court in 2013 before finally being gutted yesterday. (The law remains on the books, but only applies to bestiality.) In reframing the law, the Supreme Court went further, and called for full and equal constitutional rights for LGBTQ Indians.
The law, known as Section 377 of the Indian Penal Code, dates back to 1861. At the time, India was still very much a British colony, and would be for another 86 years. The Penal Code reflected the rather buttoned up morality of Victorian England, and imposed its Western mores on an population it oppressed. And so comes this insight from Shahmir Sanni:
India has a long and very queer history all its own, no modern Western LGBT scene necessary. Hinduism, the dominant religion, basically invented the concept of third gender people, and stories of gender-shifting gods and queer relationships are littered throughout their mythology and art – they’re as gay as the Greeks.
“Oh but Orlando if they’re so queer and forward thinking how come it took 70 years to overturn it??” Now here’s the real meat of it. First, of course, those ancient stories and writing were not overwhelmingly pro-LGBT – the Manusmriti, a set of rules dating back to 200 BC, provides for a fine against girls who love girls, and loss of caste for gay men – but neither did they enshrine in law the threat of lifetime imprisonment for the act of queer sex. The British imposed a universal legal code that influenced how Indians saw each other and themselves.
These attitudes do not shift overnight. A penal code instituted 150 years ago by a foreign government can endure long past its expiration date if it lives on in the heart of the people. Just as we are raised by society to be homophobic and racist, though not intentionally so, so too do entire nations fall prey to prejudices not their own, which endure long past their welcome.
The process of decolonization is a long and grueling one. How does one excise the foreign from the original? The bad from the good? Are the two always the same? If it takes humans decades to overcome their biases, then how long does it take a civilization over 3,500 years old? How much longer when the same foreign civilization that oppressed you and gave you those biases turns around and calls you backward for having them? India isn’t modernizing. It’s decolonizing. #fpf