This Alien Legacy

Finally, the “modernization” of British law in the Indian Penal Code was almost
immediately exported back to Britain itself. The 1861 Offences against the Person Act
dropped the death penalty for the “abominable crime of buggery,” imposing a
sentence modeled on that in the IPC. 56
British law at home underwent a further refinement in 1885, during a revision of laws
on the “protection of women, girls [and] the suppression of brothels.” Henry
Labouchere, a member of Parliament, introduced an amendment so unrelated to the
debate that it was almost ruled out of order. When finally passed, it punished "Any
male person who in public or private commits or is a party to the commission of or
procures or attempts to procure the commission by any male person of any act of
gross indecency with another male person,” with two years at hard labor. “Gross
indecency” was a broad offence designed to include virtually all kinds of nonpenetrative
sexual acts between two men. Unlike the 1861 “buggery” law, the
Labouchere Amendment also explicitly extended to private acts. The press quickly
dubbed it the “blackmailer’s charter.” Oscar Wilde was convicted under its terms in
1895. 57
Labouchere’s law acknowledged that two men could practice many other sexual acts
than “sodomy.” A society ambitious to extirpate such acts needed an express
acknowledgement of its power over privacy, and a wider criminal framework to
punish them.
Labouchere’s provision came too late to be introduced in the Indian Penal Code itself.
However, subsequent colonial codes incorporated versions of it, including codes
that derived from the IPC. It appeared in the Sudanese Penal Code in 1899, and in
the influential penal law of Queensland in the same year. Malaysia and Singapore
received the gross indecency provision jointly through an amendment in 1938. 58
Moreover, as explained below, subsequent jurisprudence in India (particularly the
56
Offences against the Person Act, 1861, 24 and 25 Victoriae, C.100, “Unnatural Offences,” Sec 61.
57
H. Montgomery Hyde, The Trials of Oscar Wilde (New York: Dover, 1962), pp. 12-13.
58
Sec 377A was introduced into the Singapore Penal Code by Sec 7 of the Penal Code (Amendment) Ordinance 1938 (No 12 of
1938). The reason, as stated in the Proceedings of the Legislative Council of the Straits Settlements in 1938 was to “[make]
punishable acts of gross indecency between male persons which do not amount to an unnatural offence within the meaning of
s 377 of the Code”: p. C81, April 25, 1938. See microfiche no 672, Straits Settlements Legislative Council, Proceedings (SE 102),
Vol. 1938 (Central Library Reprographic Dept, National University of Singapore).
This Alien Legacy
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