The Supreme Court of India’s decision today to reverse the Delhi High Court’s 2009 decision to make Section 377 of the Indian Penal Code inapplicable to sex between consenting adults represents more than a major loss for sexuality rights advocates in India. It is that. But it is also testament to the enduring force of the legal infrastructure—for example, the Indian Penal Code—that British colonial officers left behind in India after these officers’ ignominious exit from South Asia in 1947. Moreover, today’s Supreme Court decision, I fear, represents a significant loss in other former British colonies who inherited Section 377 from the British. In other words, this loss is an epic and global one. The coming challenges are multitude for many people, Indian and non-Indian.
While it is certainly tempting to do so, there is reason to be cautious, however, in blaming this all on the British. A significant amount (though certainly not all) of Indian sexuality rights’ activists arguments vis-à-vis Section 377 were premised on an anti-colonial appeal—namely, that for India to be truly free that it had to shed 19th-century, elite, British (anti)sexual morality. Yet all nationalist argumentation tends to overlook the ways in which the foreign gets made familiar or, alternatively, the ways in which foreign/domestic interests can align (at least partially). Indeed, in a memorable passage from the Supreme Court of India’s opinion today, one finds the opinion’s author (Justice Singhvi) quoting an Indian precedent as to the irrelevance of British legal sources—all ultimately in the service of this opinion’s effort to keep relevant a British colonial law in a postcolonial India. See generally ¶53.
I’m afraid that the anti-colonial argument just can’t be won through ‘strictly legal’ processes and analyses. In saying this, I’m suggesting not only the substantial political work that remains to be engaged in in India—and, frankly, everywhere else in the world—around sexuality, but also the ultimately politically contingent quality of all of the values that have come into play in the anti-377 campaign. Thus, not only ‘colonial,’ but also ‘dignity’ and ‘equality’ (amongst others) are socio-politically determined terms; ‘legal logic’ plays some role in defining these terms, but usually only a minor one.
The next steps are fraught ones. The state’s potential for violence here is not to be underestimated, especially with national elections around the corner. Stay tuned.