Thomas Babbington Macaulay is the author of the Indian Penal Code—the laws that govern our country. He was key to drafting the words in Section 377. He was also key in forcing Indians to learn English customs under the British rule. This connection is no accident—homophobia is not natural or part of our history, it had to be taught.

What is the history of homosexuality in pre-colonial India, and what were the attitudes of people at the time?

We meet Dr Ruth Vanita and Dr Jyoti Puri and learn just how carefully the British defined homosexuality, outlawed it, and taught people to react with horror and disgust at its very mention, both in India and across the British Empire.

Show Notes

All clips and voices used in this podcast are owned by the original creators.

The following guests appeared in this episode:

• Siddharth Dube
• Dr Ruth Vanita, professor of English at the University of Montana, and author of Love’s Rite: Same-Sex Marriage in India and the West (2005) and most recently, the novel, Memory of Light (2020)
• Anand Grover
• Dr. Jyoti Puri,  professor of sociology at Simmons University, and author of Sexual States: Governance and the Struggle against the Antisodomy Law in India’s Present (2016)
• Anjali Gopalan
• Ashley Tellis, academic and gay rights activist

References

• Shashi Tharoor’s speech at the Lok Sabha, on his proposed bill to decriminalize homosexuality, courtesy Mango News: https://www.youtube.com/watch?v=fxFjhiIt3Ps&t=175s
• ‘Angrezi Bolke Sunaao Na’, courtesy Amazon Prime Video, India: https://www.youtube.com/watch?v=hd9ZpS98pys&t=3s
• Interview with Alok Gupta, November 2011, from This Alien Legacy courtesy. Envisioning Global LGBT Human Rights at York University, Canada, directed by Dr Nancy Nicol
• Straits Times’ announcement about Singaporean High Court judge’s dismissal of challenges to Section 377A: https://www.youtube.com/watch?v=9A9WrfOgf4g&t=1s
• ‘Kenyan court upholds criminalisation of gay sex’, courtesy AP News: https://www.youtube.com/watch?v=n_QGGhd_BzI&t=47s

Full transcript of Episode 3

Shashi Tharoor, the well-spoken and articulate Member of Parliament, tried more than once to get India’s anti-gay sex law repealed. This is him, delivering a speech in the Lok Sabha during one such attempt in 2016.

Shashi Tharoor:
Unfortunately for us, the British came, and they passed laws in the Indian Penal Code and after, that have criminalised a whole lot of human behaviour and human reality that in India, had not been criminal. 

It is ironic to see the self-appointed defenders of Bharatiya Sanskriti on the treasury benches now acting as the defenders of the worst prejudices of British Victorian morality.

We’ll come back to the point that he makes… but for now, I want to focus on something else. Shashi Tharoor is known for his big words, British-“ish” accent and excellent command of the English language. 

Shashi Tharoor:
I mean, my parents would embarrass me too when guests came over. “Shashi, uncle ko angrezi bolke sunaao na?”. And I’d go, “Daddy, please… I can’t entertain this! Pardon my recalcitrance.”

Tharoor symbolises a generation of Indians who inherited a complicated legacy after Independence. They are sometimes referred to as Macaulay’s children: Anglicised, English-medium educated, grappling with the aftermath of British rule.

Now, who was Macaulay and why did he have so many fake children, even though he had none in his real life?  Thomas Babington Macaulay was a 19th-century British colonial officer. He ensured English was taught in India because he believed the entirety of writing in Sanskrit, Arabic and Persian was all worthless when compared to European literature. He wanted to create an English-educated class of Indians that would help the British rule over the native masses. He famously phrased it: “Indian in blood and colour, but English in taste, in opinions, in morals, and in intellect”.

He also wrote the Indian Penal Code. The set of laws that India continues to enforce till today.

Why is he important to this podcast? Why was his name mentioned twenty-five times in the judgement against 377? Because he wrote the law. As the author of the IPC, he was also responsible for Section 377. 

The man responsible for a large part of the education system is also the one who wrote our laws. That’s no coincidence.

From ATS Studio, I’m Sindhuri Nandhakumar and this is 377, a show about a very specific law, its outsized impact on Indian society, and the movement to get rid of it 

In our last episode, we talked about the HIV/AIDS crisis in India. How gay men, a largely invisible community in India, were starting to safeguard themselves from the deadly virus through the repeal of this law. 

Siddharth Dube:
Many of them got up and fought,  they said they were going to die anyway and they were going to fight to make life better for other people who were either at risk of HIV or had HIV. So they became the most incredible fighters. It was a disease that really transformed people. Because there was so much stigma and so much hatred of people with AIDS, and so much fear.”

Today, we’re going to talk about the history of 377—where that stigma came from and how homophobia became so intrinsic to Indian society. Like Mr Tharoor noted, how did staunch Hindu groups become defenders of a law steeped in British morality? 

They argued that homosexuality was ‘un-Indian’ — that it is a Western import. But if anything is a western import, it is homophobia. 377 came to us from colonial England. It was modelled on a 16th-century law from the time of Henry VIII and it was rooted in Christian morality.

Today, even though England has done away with its own anti-queer laws, many of us in former Commonwealth nations continue to live under them. In 2018, Theresa May, then Prime Minister of the UK, offered a public apology on behalf of her country:

Theresa May:
Across the world, discriminatory laws made many years ago continue to affect the lives of many people, criminalising same-sex relations and failing to protect women and girls. I am all too aware that these laws were often put in place by my own country. They were wrong then and they are wrong now. Nobody should face persecution or discrimination because of who they are or who they love.

Now, I want to be careful about romanticising pre-colonial India. These were diverse regions and territories that we today know as one country. I don’t want to generalise. 

Yes, we do have depictions of homosexuality in our history: the Khajuraho paintings, the Manusmriti texts. The Kama Sutra mentions a third sex and even has a detailed chapter on male-male sexual relations. India also has a vibrant and rich history of trans culture. But I’m wary of making the broad claim that before the British came, queer people got all of the respect that they deserved. 

I discussed this with Dr Ruth Vanita. 

Ruth Vanita:
I’m a professor at the University of Montana, and earlier I had taught at the University of Delhi for many years

She’s a scholar who has done a lot of research into the history of pre-colonial India. And I asked her about the attitudes towards homosexuality before the British came.

Ruth Vanita:
in earlier literature before the British period, for the colonial period, we find in many Indian languages… texts from many Indian languages which I have read, including Sanskrit and later modern languages like Bengali Hindi, Urdu, etc., that same-sex relations are openly discussed and with a whole range of views. 

It’s not that everyone likes it or approves of it, but there’s a whole range of views, I would say, from a mild disapproval to open celebration and everything in between, but it was never unspeakable. Whereas in Europe, from about the 13th century onwards, and definitely from the 15th-16th century onwards, so one 16th century onwards actually, it’s not only treated as sinful but also as illegal, made criminal It was not the case, and it also comes to be called the sin that is not nameable among Christians… should not be named. 

Ruth also says that Hinduism, the dominant religion in the region, was not intrinsically homophobic.

Ruth Vanita:
Okay, first I should clarify there are many Hindus who are homophobic, so the people are different from what the religious texts say. There is a difference between those two things which one should be very clear, right?

Hinduism has thousands of texts and they all say various things, but overall, reading the texts, one finds that there isn’t any similar kind of horror and disgust at same-sex relations. 

That horror and disgust came into Indian jurisprudence through Section 377. At the time, the British wanted to create a set of laws to govern the regions they controlled. They wanted these laws to apply to their own citizens, who were stationed in the colonies, and also to the locals, natives who needed to be “educated” and taught British morals.

One particular fear was that British officers would be encouraged to engage in sexually fluid activities, including gay sex. Some of them had left wives and girlfriends behind, and this worried the British administrators; who felt that Indian culture wasn’t as restrictive as their own. All-in-all, a moral order had to be enforced. It was therefore Macaulay’s duty, to put into legalese, that sodomy was wrong.

So, the word sodomy confuses me. The producer of this show, Ashim and I, spent a bit of time trying to figure out the best definition for the word. And we couldn’t really pin it down. Because… the meaning has expanded over time. 

Macaulay had this same problem — he had trouble… defining the word. But his concern was also that he didn’t want to make the definition too explicit, in case it gave anyone ideas. Lawyer and historian Alok Gupta explains this process:

Alok Gupta:
He used to always say, and you can laugh about it, if you define it too accurately, it will only create interest in it. So you have to define it surreptitiously, furtively, so only we know what we’re talking about.

Remember, we’re talking about a law. That should be defined so no one understands it.

Alok Gupta:
He first defined it as the offence of ‘unnatural touching’ because he was so scared of defining an offence that would relate to sex. He said, “anybody touches anybody with unnatural lust in their mind is sodomy.” And the Committee was like, “this is absurd. This is too vague. Come up with something less vague. And that’s when he came up with this definition which we have.”

That was 1860. The law was approved.

Anand Grover:
Have you got the section in front of you?

Sindhuri:
No, I have it somewhere one second I just yeah

Sindhu and Anand overlapping:
Whoever voluntarily has carnal intercourse against the order of nature [overlapping] with a man, woman or, or an animal shall be punished with imprisonment for life. Yeah.

I go through the wording with Anand Grover, the activist lawyer we met in the last episode. It may seem excessive to go through it word by word, but this is a law. The words make all the difference, and interpreting them is what judges do all day. 

The problem is, they’re so vague: “carnal intercourse” meaning sex. “Against the order of nature”—who’s going to speak on behalf of nature and what is and is not against it? I mean, just in my family, my mother and I wouldn’t agree on what constitutes unnatural behaviour. How are lawyers and judges expected to reach a consensus when someone’s life hangs in the balance?

An important aspect of the law is that it can be applied consistently. That it means the same thing to everyone.

The vague terminology meant that the law could be applied in a range of situations. And the judges could use their own biases and moral codes to decide how it could be enforced. The US Supreme Court in 1964, when trying to ban pornography, famously used the phrase: “I’ll know it when I see it”. That’s arbitrary. That gives judges a lot of individual power. And exactly that was happening with 377.

The application of the law kept expanding. Certain acts that were not considered criminal were later successfully charged under 377. For example, oral sex. Originally, penetration was necessary if you wanted to book someone under the law, but penetration isn’t well defined either. So the courts found creative ways of proving it had happened. I asked Anand about this.

Anand Grover:
Well, that is because over a period of time,  in the earlier part, you know, more than a century, the judgments have gone on for 100 years. Over a period of time, though earlier it was penetration in the mouth, anus, later on, they actually didn’t look at only penetration, but they looked at what they call sexual perversity. 

So penetration had to be satisfied, and penetration — if you hold the penis in the wrist, that would actually constitute penetration… or penetration between the thighs.

*

When being charged under 377 you have to be ‘caught in the act’. You had to have an invasive medical examination that would check if you were a quote habitual sodomite. That was a lot of work for the police, and often just not possible.

Remember Siddharth’s arrest from Episode 2? 377 wasn’t mentioned, only implied. No evidence was required. If you can’t prove it, charging someone with a crime just becomes a threat—it’s police brutality. I spoke with Dr Jyoti Puri, a professor of sociology at Simmons University in the US. 

Jyoti Puri:
It’s wielded as a threat as a kind of baton. But it hasn’t really found its way in the courts, especially the higher courts. And the medical examination component has something directly to do with it. So typically when people have wanted to harass somebody under this law, including members of the police, if they wanted to extort or harass somebody or commit physical violence or even demand sex, etc, have been using the threat of Section 377 but they have not been booking people under it because of the medical examination component because it requires that kind of substantiation, which, you know, doesn’t happen. 

Jyoti has written a book titled Sexual States: Governance and the Struggle Over the Antisodomy Law in India. And I relied on it, to get a sense of how the law was being used. Jyoti was able to get information on around 99 cases in the high courts.

One thing that struck her was how consistently these cases had to do with child sexual assault. And it surprised her that a law that was used to prosecute child abuse cases became the emblem of the gay rights movement in India.

Jyoti Puri:
In one sense, yes, the spirit of Section 377 certainly introduced and institutionalized homophobia into Indian legal history. But the fact that this is primarily about child sexual assault should make us hesitant about seeing this as the institutionalization of, you know, the homosexual in a way that is true for some places in the West. And I think it is it is more accurate, and it would be more nuanced to make the claim that in fact, despite the intent of Section 377, against homosexuality, it has been wielded mostly in terms of filling the gap around child sexual assault because rape laws were simply not enough. 

Now, just to be clear, Jyoti isn’t defending the law. When I asked her to explain what she meant, she made a very good point. Because their acts were punishable under the same law as child sex offenders, sexually active gay men were described in the same negative terms.

Jyoti Puri:
So there is no space no understanding, no legitimacy for same-sex desire. That is an implicit denigration of it, even though this is all about child sexual assault.

That’s the thing about Section 377. If you’re a queer person, it makes you feel like a criminal. It gives other people — and the law — the chance to equate your desires with troubling, problematic behaviour.

And the reason it was used to prosecute a gamut of crimes was because India’s laws on child abuse and rape were very restrictive. India’s rape laws, for example, only apply if the victim is a woman. Thankfully, in 2012, the POCSO Act Protection of Children from Sexual Offences was passed and it provides far better protection to minors.

But this law didn’t stop with India. Remember Teresa May’s apology? The UK did kind of ruin gay sex for a lot of people because 377 became a model for other Commonwealth countries. Here’s the scholar Alok Gupta again

Alok Gupta:
Then we discovered that this law travelled to Southeast Asia, East Africa, Australia at every point from 1860 onwards, when this law was adopted by another British governor in his colony, he tweaked this sodomy provision. We have found 25 different amendments at least.

A recent study even showed that former British colonies are much more likely to have laws that criminalise homosexual conduct than other states in general. And unlike India, those laws are still in place in some of these countries. 

In Sri Lanka, it’s section 375A. It was even amended to remove the word ‘men’ so it could apply to lesbians and trans women.

Campaigns against the law haven’t always been successful. For example, in Singapore —

Newscaster:
In other news, the high court has rejected all of the latest challenges to Section 377A of the penal code. The three cases…”

In Kenya:

Judge:
We find that the impugned sections are not unconstitutional. Accordingly, the consolidated petitions have no merit. We hereby decline the relief sought and dismiss the consolidated petitions.

* 

I want to come back to India now. There are so many fascinating aspects about the history of 377—how much we internalised the homophobia of our colonial rulers. How we made this very British, Victorian-era law an Indian one. And how important education was to all of this. Here’s Ruth Vanita again.

Ruth Vanita:
And they also, through education, especially English education, they spread the idea that it is wrong. And by the 1920s, we find that most educated Indians have totally internalized this. And they also think that homosexuality should never be mentioned in writing and in public. This modern homophobia is something that comes from the West to educated people, and then from educated people to others.

After the British left, India inherited a complicated legacy. We got the railways, the English language, and a sense of homophobia. 

When 377 and the IPC came into effect, it was imposed on the country—Indian citizens couldn’t vote. It applied to people who had had no say in creating the legal system. And many of these laws survive till this day. Anjali Gopalan decided that it was time to question the existence of 377.

But in 2001, when Anjali decided to file a petition in the Delhi High Court, she was met with resistance. Not only from homophobic people but also from some child rights and women’s rights groups. You might assume that they would be allies, but they had to safeguard their own interests. They didn’t want 377 to go because, until 2012, there were no other laws on child abuse. I asked Anjali about that.

Anjali Gopalan:
But, that’s why we had asked for a reading down of the law. We hadn’t asked for the abrogation of the law. What we had asked for is to exclude consenting adults.

Abrogation: that would mean scrapping 377 entirely. All of it goes. Reading down: would mean excluding consenting, gay adults from the law.

Anjali Gopalan:
So that’s why it was not about getting rid of 377; it was about reading down 0f 377.

There was more: why go down the legal route, why focus around just this 377 law, there were larger problems, and why lean so much on the public health angle?

Ashley Tellis, an academic and gay rights activist, compared the Naz Foundation’s petition with the earlier one filed in 1994 by the AIDS Bhedbhav Virodhi Andolan or ABVA. This is what he said:

Ashley Tellis:
The ABVA was the first real movement against section 377. And it called for the repeal entirely of 377. And this was the original campaign movement. And then this got hijacked by NAS in 2000. And it became a reading down of 377, which is not a repeal, not the removal of that entire section, but a reading down only to make private, consensual sex between adults of the same sex, legal. And this seems to me, a mistake, because the important thing to have fought for is the removal of 377, a removal of the entire sodomy statute because it’s fundamentally homophobic and deeply problematic and also come from a different kind of history. 

Did these criticisms hamper the movement? What impact did it have on Anjali and Anand? And how did they regroup and move towards a tremendous victory in 2009? That’s in our next episode.