In an article published in this blog ( ‘Delhi out of the Closet’ on 07.05.2009), we have learned that New Delhi’s higher court “overturned the gay sex ban.” The article says:
“Homosexuality became illegal in 1861 when, under British rule, Section 377 of the Indian penal court was passed that prohibited ‘carnal intercourse against the order of nature with any man, woman or animal’.”
What strikes me here is that the law was approached as colonial legacy, a reminder of the British rule that left its mark on the Indian society. This approach, however, misses an important point ; What was the situation before 1861? We can conclude from the above sentence that it wasn’t codified before 1861. Legality or illegality probably was not a matter of discussion. The right question may be how the society treated the issue; tolerant, indifferent or discontentful? Maybe it wasn’t a public issue at all. Perhaps the issue belonged to the private sphere as people didn’t see it as something to be publicized.
The rule has reminded me an interesting argument by Joseph Masad on the project of universalization of ‘gay rights’. I will simplify this sophisticated claim: What he calls ‘Gay International’, a group of organizations, discourses that have a ‘missionary’ role of saving and protecting human rights of the people who are discriminated on the basis of sexual orientation in especially non-Western world, led to the incitement to discourse in these countries. (in Arab Muslim countries) One outcome of this ‘incitement to discourse’ is the emergence of anti-homosexual law and harassment of these people by police, while before this discourse there wasn’t any law against same sex contact. Gay International’s mission is to “liberate Arab and Muslim ‘gays and lesbians’ from the oppression under which they allegedly live by transforming them from practitioners of same-sex contact into subjects who identify as homosexual and gay.” (Masad 2002, p.362) According to Gay International, same sex contact does not make the person a gay, rather they consider this kind of person as ‘not yet caught up in liberatory Western gay model.’
Distinction between same sex contact and homosexuality / gayness as identity makes the tolerance argument futile…Tolerance argument is the idea that in ancient societies (till modern times) , homosexuality was tolerated because there wasn’t any dichotomous gender constructions. In that sense, one should be hesitant to see the homosexuality as something transhistorical and timeless, a phenomenon that was experienced freely in the past, that it was through Western modernity (or colonial power in Indian context) that it was forbidden. Similarly, placing contemporary epistemology of homosexuality (which is inextricably related to modern forms of subject making processes) into the past is more than a naïve anachronism.
Sexuality is clearly an arena of political authority. Today, homosexuality (not same sex contact) has become an instrument to impose a particular cultural policy of modern life in almost every part of the world. This imposition may take different forms in different contexts: in non-Western world, it is in the form of a ‘liberatory social movement’ as Masad shows, in Euro-American side, it is more connected to the gay industry that works within the logic of cultural capitalism.
Masad, J., 2002. Re-Orienting Desire: The Gay International and the Arab World. Public Culture, 14(2), 361–385.