India throws out British colonial anti-sodomy law

On Sept. 6, India’s Supreme Court struck down the country’s law criminalizing consensual sex between same-sex partners. The law, known as 377, was imposed during British colonial rule and carried a maximum sentence of life imprisonment. Out of an estimated 48 former British colonies that outlawed homosexuality, 30 still have such laws, according to a 2017 International LGBTI Association’s “State-Sponsored Homophobia” report. (CNN)

The following analysis of British colonial anti-LGBTQ law is excerpted from part 112 of Leslie Feinberg’s series on LGBTQ history and socialism, “Lavender & Red.” A free download of the complete “Lavender & Red” series is available at workers.org/book/lavender-red/.

Western rulers imposed anti-gay laws throughout the world, including British colonialists and imperialists. The sun never set on British anti-sodomy laws.

The British imposed on the people of Ireland a 1634 law that made same-sex relations between males punishable by death. Later, the 1885 British Labouchère Amendment was the law under which feminine homosexual writer Oscar Wilde was sentenced to hard labor.

Laws criminalizing same-sex relations in India, Malaysia, Pakistan, Bangladesh, Myanmar, Singapore, Malaysia and Brunei all have the same name — “Article 377” — because the same colonial power wrote the law: Britain. The colonial-drafted legislation is misleadingly named the “Indian Penal Code.” Hindu law had not punished consensual sexual relations.

Historian Douglas Sanders explains: “Article 377 of the Indian Penal Code of 1860 made ‘carnal intercourse against the order of nature’ an offence.”

The British also imposed this legislation in the Straits Settlements of Singapore, Penang and Malaca in 1872. By the late 19th century, Britain also enforced the law in Hong Kong, Fiji, the Malay Peninsula and Burma.

Korea Herald journalist Benjamin Jhoty quotes Utopia-asia.com, which offers information about the same-sexuality scene in Asia: “Asia has rich and unique homosexual traditions almost everywhere you look. The true enemy of homosexuality in places like Korea, Singapore, Indonesia, Malaysia and the Philippines are antique colonial laws and homophobic non-Asian religions that bully citizens with skewed views of the natural world.”

Sanders notes, “This provision, or something very close to it, is presently in force in all former British colonies in Asia with the exception of Hong Kong.” He adds: “Sri Lanka, Seychelles and Papua New Guinea have the key wording from 377, but different article numbers. Parallel wording appears in the criminal laws of many of the former colonies in Africa.”

Historians Kevin Botha and Edwin Cameron write, “The systems of law the colonial powers (both Dutch and later English) introduced significantly influenced the customary law of the African communities they subjugated.”

The British “Queensland Penal Code” of 1899 was “adopted in Northern Nigeria in the nineteenth century, later becoming the basis for a uniform federal code in Nigeria in 1916. The Indian Penal Code had been used in Kenya, Uganda and Tanzania, but those laws were later replaced by drafts based on the Nigerian criminal code. Sudan used the Indian Penal Code. In 1960, Northern Nigeria enacted a separate criminal code, based on the Sudan code.”

Similar laws were forced on “British” Honduras (today Belize), Jamaica, Anguilla, the “British” Virgin Islands, the Cayman Islands, Montserrat, Bahamas, Tobago, Turks and Caicos, and St. Lucia.

The British also imposed anti-“sodomy” legislation on Canada in 1892, New Zealand a year later, and Australia in 1788 and again in 1899.