Growing up in the cultural juxtaposition of British Asian communities in London, little did I know that the colonial “Raj-era hangover” law which criminalises homosexuality in India could alter my chances of future happiness. Since last week, the rights of LGBTI citizens and question of whether Section 377 is unconstitutional is now being revisited by the Supreme Court of India.
It is a draconian law from the Indian Penal Code, stemming from the laws which resulted in the trial of Oscar Wilde v. Queensberry in 1895. Forced upon colonial India in 1861, Section 377 still applies directly not only in India, but in my experience also affects Indian diaspora communities around the world. As a British-Indian lesbian planning to come out to my parents, it was only throughout my university years in the UK and Ireland that I realised Section 377 from 1861 still applied today.
Coming out was a difficult prospect and as we come from a very close family, I dreamt of a time when I can tell my extended family in India and be accepted.
During my time at university, I had really worked hard to build bridges in my community as best I could with my peers.
However, I found myself being confronted with a series of academic “hate acts” during university and needed my family for support, but due to fear of being shunned I could not turn to them. I found it so difficult to cope with the combined racism and homophobia. My experiences echoed the words of American-Asian Arati Warrier’s powerful poem on Section 377: “I picture myself coming out and my parents’ heartbreak flooding all of India.”
A few years later, I was listening to an Asian radio station with my mum, which was discussing the same “double-bind” of discrimination – a deep-rooted homophobia in South Asian communities as well as racism in the British LGBTI communities. Clearly, more needed to be done for British Asian LGBTI individuals who were struggling with their sexuality and who were seeking acceptance from their families, as well as individuals from these communities who were willing and able to safely advocate for LGBTI rights globally.
I decided to defend LGBTI rights myself and started the British Asian LGBTI support group. This online forum aims to help unite this community and reduce isolation and discrimination, defend global LGBTI rights including repealing Section 377 in India and Asia.
British Asian LGBTI asks questions such as, “Why is this minority group so underrepresented and what is the common experience?” and “Why the dearth of South Asian Lesbians?” One of the answers is Section 377, which silences diaspora Indian LGBTI communities in the UK and around the world. It also affects families and the mental health of diaspora communities. The Indian Psychiatric Society has recently also backed the decriminalisation of gay sex, stating once again that homosexuality is not an illness.
We set up a #Repeal377 Change.org petition which called for a full repeal of the 19th century law and obtained over 22,500 signatures when sent to Indian prime minister Narendra Modi.
We’ve had rays of hope before, but they were short lived. Delhi High Court’s 2009 decision to decriminalise carnal intercourse “against the order of nature” was reversed by the Supreme Court in 2013.
But in the hearing last week, the Indian government declared that they will “leave [the] decision on constitutional validity of Section 377 to wisdom of [the] court.” This weak move has been criticised, with their affidavit betraying nothing but disdain for LGBTI rights.
When discussing this petition with my human rights law lecturer, we had an interesting discussion about the extent to which we can blame modern-day Britain for our continuing battle for human rights.
British politician Thomas Babington Macaulay, author of the penal code in India, has left a legacy of homophobia which continues to affect an estimated 50 million LGBTI individuals in the country, and millions more in other former UK colonies. Ruth Vanita and Saleem Kidwai, in their book on Same Sex Love in India, documented how many Urdu poems about homosexuality were systematically destroyed by the Victorians.
Present-day opponents of decriminalisation of gay sex should not forget the dangers of “Macaulayism”, which used the education system in India to eradicate the indigenous culture and substitute it with western teachings and the English language.
My lecturer felt that India has had ample chance to change the law since independence. I argued that some action needs to be taken as this Draconian law is used for a political purpose. Harassment, blackmail, extortion and abuse on the LGBTI community gives rise to multiple discrimination, including existing inequalities due to caste, class and gender.
It is more relevant than ever to defend global LGBTI rights as well as the rights of diaspora communities in Britain because decriminalising homosexuality is the first step towards establishing genuine equality before the law.
Theresa May’s recent apology for the legacy of anti-gay laws at the Commonwealth Summit was a welcome step, but it is not enough. The final decision from the Supreme Court will be made and announced before Chief Justice Dipak Misra retires in early October. This is the crucial time for the court to realise that repealing this colonial era law has far-reaching consequences, legally, socially and culturally, for years to come.
The writer is founder of British Asian LGBTI, a support group.