After remaining “shy” in revealing its stand on gay sex in the Supreme Court for over two years, the Union government now seems to have gone to the other extreme stating that homosexuals had far greater freedom to satisfy their “fancies” in India than the West where it today has taken the shape of a “human right” movement.
In order to defend its “changed stance” to support of Delhi high court’s 2009 verdict decriminalising consenting adult gay sex, the government has produced some historical material to suggest that “homosexuals were free to satisfy their fancies in India, where as in Britain they were widely despised and buggery was a capital crime until 1961” a note of attorney general G.E. Vahanvati, filed on behalf of the Centre stated.
The Centre’s note has extensively quoted form the book by Lawrance James titled Raj: The Making and Unmaking of British India, further stated that “for many British onlookers, Indian erotic act was a revelation of practices which were all but unheard of in their homeland, or condemned as deviant and depraved. There was group sex, oral sex, sex in every conceivable position, buggery and masturbation.”
The note was presented by the AG after a bench of Justices G.S. Singhvi and S.J. Mukhopadyaya wanted to know as what was the material before Lord Macaulay who drafted the Indian Penal Code in 1834, to include in it Section 377, declaring gay sex as a criminal offence.
The court wanted to know how the phraseology “carnal intercourse against the order of the nature” was included in Section 377.
The government note said “the Indian society prevalent before the enactment of the Indian Penal Code had a much greater tolerance for homosexuality than its British counterpart, which at this time was under the influence of Victorian morality and values in regard to family and the procreative nature of sex.”
Since the Church of England had become pre-dominant to enforce morality on its people, it obviously had its influence on Macaulay, who was largely responsible for drafting the IPC provisions as a member of British Royal Commission assigned the job for codifying the criminal law for India under East India company rule.
However, Macaulay’s draft remained undecided for 23 years due to the 1857 upsurge. His draft was reviewed by the commission and the Supreme Court of Judges for India in Bombay, Calcutta and Madras after “Indian Mutiny” and finally approved by the British Parliament in 1860 when India had come under direct rule of the British Monarch with the disbanding of East India Company.
Queen Victoria finally notified the IPC in 1862 with a harsher section 377 prescribing a maximum of 20 years imprisonment to a person indulging in gay sex or any other form of sexual activity declared as “against the order of the nature” under it, the AG’s note said.
The Centre after taking diametrically opposite stand in SC than the HC where it defended applicability of section 377 to homosexuals, the Centre’s note said “the government does not find any legal error in the judgement of HC and accepts the correctness of the same.”