Regressive anti-gay laws in the Commonwealth are largely the legacy of the British colonial rule. As they spread their reign, the colonisers also exported their laws. In India, the controversial IPC Section 377 represents the "moral views prevalent in Britain in the 18th century".
Ironically, Britain moved with the times, decriminalizing homosexuality in 1967 and legalizing same-sex marriages this year. Most Commonwealth countries however clung to the past. India has now re-entered that league.
Of the 78 countries where homosexuality is a crime, 54% are Commonwealth countries. The social impact of this is higher since Commonwealth states account for 30% of the world population, noted a recent report by a UK-based non-profit group called Kaleidoscope Trust. The group works to uphold the rights of LGBTI (lesbian, gay, bisexual, transgender and intersex) communities.
The report, which drew on contributions from over 20 LGBTI rights organizations, demanded that the Commonwealth stop ignoring the abuse of LGBT rights and take action. It also sought that individual governments repeal legislations that criminalise homosexuality.
"Institutions like the Commonwealth must change their stand on homosexuality, given that times have changed and our understanding of homosexuality has changed," said Anjali Gopalan, founder and executive director of The Naz Foundation. "Earlier, homosexuality was perceived as a disease, but it is now acknowledged as a natural condition for people." The Naz Foundation had filed the PIL in the Delhi high court that sought the repeal of Section 377.
"Britain has conferred many legal rights on its homosexual citizens, including the right to marry. Why can't we in India do the same? Institutions in these (Commonwealth) countries need to relook at how or why homosexuality is being criminalized and what rights they are denying to their citizens," added Gopalan.
Kaleidoscope Trust's report conceded that focus on decriminalization alone might not always be the most effective way; local activists thus may want to prioritise different issues, such as hate crimes and employment inequity. Legislation against discrimination in jobs on grounds of sexual orientation was brought in by the Seychelles (in 2006), Fiji (2007), Mozambique (2007), Mauritius (2008) and Botswana (2010).
Some Commonwealth countries have shown that progress can be made, regardless of historical antipathies. Homosexuality was decriminalized in The Bahamas (in 1991), Australia (1997) South Africa (1998), Vanuatu (2007) and Fiji (2010).
While the Commonwealth Charter claims to be "implacably opposed to all forms of discrimination", the organization continues to let down millions. "Unless a deliberate attempt is made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business," stated Shridath Ramphal, former secretary general of the Commonwealth in the report.
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