Section 377: A Hindu view of alternative sexuality – Sandhya Jain

Sandhya Jain“Hindu tradition … has recognised the wide range of human sexual diversity and proscribed none, though non-mainstream versions have always been relegated to the margins of society. Srimad Bhagvatam says, ‘Sometimes you think yourself a man, sometimes a chaste woman and sometimes a neutral eunuch. This is all because of the body, which is created by the illusory energy. This illusory energy is My potency, and actually both of us – you and I – are pure spiritual identities. Now just try to understand this. I am trying to explain our factual position.'” This verse has generally been understood as recognition of three genders and sexual orientations.” – Sandhya Jain

Shakuni: He is an enigma!The cacophony following the Supreme Court’s verdict setting aside the Delhi High Court’s 2009 judgment on [Chapter XVI,] Section 377 that decriminalised gay sex has generated more heat than light. Till one makes a proper study of the judgement, some points may be made to counter the misinformation dominating the public discourse, with words like ‘liberty’, ‘privacy’, ‘consenting adults’ and ‘religious bias’ being bandied about as substitutes for facts and cogent reasoning. The principal grievance of those unhappy with the Supreme Court decision is that same-sex relations in India will again fall under the purview of a 153-year-old British era law which defines them as “unnatural” and makes them punishable by a potential 10-year jail sentence. This means two things.

First, the Indian Constitution, drafted by the Constituent Assembly, despite quality debates on some issues, is a less than perfect document, being mostly a cut-and-paste job based on the Government of India Act of 1935 and the Constitutions of other, mainly European, countries, with little reference to the culture and traditions of this country. This is best seen in the fact that matters closest to the heart of the Hindu majority, such as cow protection, the issue that sparked the Hindu social and political resistance to the British, have been pushed into the non-justiciable section called the Directive Principles of State Policy.

The great lesson from the revival of the Victorian era law on homosexuality, therefore, is that the Indian Constitution and the Indian Penal Code need to be revisited Clause by Clause; Sections that need amendment must be amended and those need to be junked must be junked. Article 370 and special rights for undefined minorities, imposed by Jawaharlal Nehru, need special examination. Constitutional experts must enlighten us if the Constituent Assembly found it fit to review and discuss the IPC and CrPc as they are tools of implementing critical contents of the Constitution.

The second point that all those lambasting the Apex Court fear to admit is that this Victorian era law derives from biblical tenets which have no resonance in Hindu tradition. Unlike the Abrahamic faiths, Hindu tradition does not have a canon or canonical laws. It is an inclusive tradition. Nothing is proscribed, though some practices are not approved and are sometimes even punished. This is pertinent as the criticism that the judgement reinforces religious prejudice does not seem to target the faith of the former colonial masters, even though the point is made that most Western nations have junked these archaic laws!

Arjuna as the hijra BrihannalaSince the ascent of the UPA, and particularly under UPA-II, there has been a virtual assault on Indian cultural sensitivities with an aggressive in-your-face promotion of alternative sexuality, gay parades, slut walks, and attempts to legitimise these as an equal-parallel form of sexuality through films, with the active involvement of Western activists. Many who gave media interviews at Delhi’s first gay parade had come from the West, mainly America, to attend the event; no one knows how these events are funded. They caused revulsion in society but the media never gave space to these views and demonised those who expressed disagreement.

It may be relevant that nearly two decades ago, when the United Nations was exercised over the burgeoning world population and there was a worldwide campaign for the small family norm, some Western thinkers quietly mooted same-sex relationships as a means of satisfying sexual urges without the side effects of procreation. This suggests that homosexuality can be ‘cultivated’, and this could throw open the doors to wider forms of sexual abuse of men and women. This is an aspect that needs taking care of whenever a stable Government at the Centre moves to protect truly consensual relationships between adults.

Given that the promotion of alternate sexuality is a prominent Western agenda – a bandwagon recently ascended by Pope Francis – it is hardly surprising that the normally reticent Congress president Sonia Gandhi has been quick to express disappointment with the Supreme Court verdict. Saying, “I hope that Parliament will address this issue and uphold the Constitutional guarantee of life and liberty to all citizens of India, including those directly affected by this judgement,” she hinted that this is a priority for UPA-II in its remaining tenure, even though it seems a remote possibility that the lame duck regime can get any important legislation passed. However, it is certain that the regime will file a review petition or curative petition as Finance Minister P Chidambaram and Law and Justice Minister Kapil Sibal have also come out against the judgement.

Krishna & Gopa KumarComing to Hindu tradition, it has recognised the wide range of human sexual diversity and proscribed none, though non-mainstream versions have always been relegated to the margins of society. Srimad Bhagvatam (4.28.61) says, “Sometimes you think yourself a man, sometimes a chaste woman and sometimes a neutral eunuch. This is all because of the body, which is created by the illusory energy. This illusory energy is My potency, and actually both of us – you and I – are pure spiritual identities. Now just try to understand this. I am trying to explain our factual position.” This verse has generally been understood as recognition of three genders and sexual orientations.

Several texts, including the Kama Sutra and Narada Smriti, and medical texts like the Caraka Samhita (4.2), Sushruta Samhita (3.2) and Smriti Ratnavali, and Sanskrit dictionaries and lexicons like Amarakosa and Sabda-Kalpa-Druma include references to tritiya prakriti (eunuchs, or persons who cannot be exclusively categorised as male or female). This third gender has generally been held to include bisexuals, homosexuals, intersexuals, transexuals and asexuals. Patanjali takes notice of the third sex, as do some medieval era Jaina Acharyas who note that third-sex desire can be very intense.

The overall attitude has been one of accommodation. The Dharma Sastra and Dharma Sutra texts maintain that the third gender should be minimally maintained by their family members as they usually do not have children (Manu Smriti 9.202, Arthasastra 3.5.30-32), and do not inherit property. The Vasista Dharmasutra advises the king (state) to maintain third-gender citizens with no family members and the Arthasastra forbids vilification of third-gender men or women (3.18.4-5). In the Mahabharata, king Virata shelters Arjun as the eunuch Brihannala; he teaches dance to the royal princess who later becomes his daughter-in-law.

In totality, ancient India was not enthusiastic about same sex relations, but persecution was generally absent in Hindu society. This, as the Supreme Court noted, is the reason why there have been barely 200 prosecutions of homosexuals under a law that has been around for over 150 years. Thus, it may be desirable to amend the Criminal Procedure Code to accommodate same sex relations, but it is puzzling why this should be the priority of a tottering regime. – Sandhya Jain Archive, 14 December 2013

» Sandhya Jain is a journalist, political analyst, independent researcher and editor of the opinions forum Vijayvaani. She is the author of Adi Deo Arya Devata—A Panoramic View of Tribal-Hindu Cultural Interface and Evangelical Intrusions. Tripura: A Case Study

See also

  1. Homosexuality and Hinduism – Ruth Vanita
  2. Homosexuality and Hinduism: Beware of alien Christian morals – Swami Aksharananda
  3. Homosexuality in India: A literary history – Nilanjana S. Roy

10 Responses

  1. Supreme Court is Final, but Definitely Not Infallible – Soli J Sorabjee – The New Indian Express – 29th December 2013

    The apex court judgment on Section 377 of the IPC overturning the Delhi High Court judgment was most distressing. The high court did not strike down Section 377 which is needed in case of nonconsensual sex and specially for the protection of young children who are often sodomised. It read down the section so as to make it inapplicable to consensual homosexual relations in private between adults over 18 years of age. To that extent it decriminalised Section 377 which the Supreme Court has recriminalised, thereby permitting the police to knock on one’s bedroom with ominous threats of arrest and prosecution which can be avoided by payment of bribes. The Supreme Court is final but not infallible. Hopefully in 2014, the judgment will be overturned by a larger bench or by appropriate legislative amendment to Section 377.

  2. @ avantivarman: You in the wrong religion, man! Go to Islam and you can cut heads as well as hands!

    If men performed better in the bedroom, their women wouldn’t seek satisfaction with each other!

  3. Most dharmacharyas will tell you that Manu’s injunctions have little or no relevance today.

    Dharma Shastras are created to guide society at a particular time in history. They are not veda, not eternal or absolute for the simple reason that society’s mores change over time.

    For example, Manu (or his redactors) categorise rape as a form of marriage. Yet such a categorisation is unacceptable today even by the BJP brown sahibs.

    Our problem is that we don’t have a Dharma Shastra for today that deals with relevant issues.

    Many of Manu’s injunctions are interpolations, reflecting the mind-set of later editors not Manu. Some of the injunctions are simply ridiculous. How to differentiate what Manu said from what his later editors said?

    The BJP and RSS leaders think and talk just like fundamentalist Christians in the US. They have internalised Victorian Christian morality and think it is Hindu morality. It is not. A reading of the Puranas, which reflect the attitudes of Hindu society at various times, indicates a generally tolerant attitude to the various kinds of relations between different kinds of people. And some of these relations were really very odd!

    Have you ever read the story about the rishi who had two fathers?

    Hindu society has always treated its sub-cultures with fairness even while the mainstream does not approve of them. But the rants of some self-styled Hindu leaders today against those Hindus who are different from them are not acceptable. They are really expressions of their own personal fears, which they are projecting as society’s fears.

    In fact there is a lot of hypocrisy involved in this whole discussion in that heterosexuals are engaged in exactly the same kind of ‘unnatural activities’ that homosexuals are!

  4. BJP is right in this case and no amount of neo hindus peddling liberal arguments can change that.
    lesbian women had their fingers cut as per Manusmriti and so if you really want to have dharmic laws, then bring back that wonderful punishment( I endorse it).

    Religions, societies evolve with time but retain some of their core principles and since hindus have always hated gays and lesbians, there is nothing bad in using a white christian law against a practice which has been condemned in shastras.

    BJP is not opposing moves to nullify 377 because they like Macaulay but because they represent( in this case) genuine hindu voices and not some neo liberal voices which are shamelessly arrogant.
    If homosexuality is natural, is incest unnatural?

  5. ‘Judgment lacks intellectual rigour’ – Senior Supreme Court Advocate Raju Ramachandran – Deccan Chronicle – 17 December 2013

    What are the major reasons for your finding fault with the Supreme Court’s judgement on IPC’s Section 377?

    For a judgement which has been in the making for over 20 months, it is disappointingly lacking in intellectual rigour. It does not even address the fundamental issue of what is against the “order of nature”. It does not address the question of constitutional morality which the High Court did so convincingly, namely, that such morality would mandate inclusion, not exclusion. Secondly, it does not give reasons for disagreeing with the High Court’s view that the individual’s rights to dignity, autonomy and privacy are violated. And thirdly, the High Court’s view that the right against discrimination on the grounds of sex would include sexual orientation is not even discussed.

    The Supreme Court said that the High Court overlooked the fact that a miniscule fraction of the population constitutes the LGBT community. Is the Supreme Court right in going with the majority? Should the supposed majority view be the criteria for a court of law?

    This approach is deeply disturbing. The smaller the size of the community the greater is its vulnerability. It is the weak, the meek, the oppressed and the marginalised who need the court’s protection.

    Do you think the Supreme Court should have taken some action or at least made some observations before giving the order in this case, to make it a fit case for legislators to discuss? Incidentally, Justice G.S. Singhvi before retiring gave another judgement on red beacon and made some stern remarks. Your comments.

    Considering the court’s complete inability to think through the concept of the “order of nature”, it is just as well that the court did not make any further observations. I am quite sure that the court, coming from the standpoint that it seems to have, could not have facilitated an enlightened legislative debate. And as far as the red beacon order is concerned, that is just one of the numerous bold and progressive orders and judgements which Justice Singhvi has given over the span of his distinguished judicial career. This judgement (on 377) is not only inconsistent with those, I fear that it will be remembered forever as a blot on his record.

    As a senior lawyer, what legal recourse can be taken to at least decriminalise “consensual” gay sex.

    Clearly there are two legal recourses. The first is to seek a review of the court’s judgement and persuade it to reconsider it. After all, the court has in the past acknowledged that it has gone wrong. The other route is the amendment route. An ordinance cannot be thou­ght of when the Parliament is in session. An amending Act can be brought in the next session of Parliament.

    How important is a legal stamp? We know the law or state cannot keep a check on private lives, so how do you think this judgement will impact the community?

    It impacts the community because it brands legitimate, consensual private activity as criminal. No self-respecting citizen would want to feel that he or she is indulging in an illegal activity but is not being prosecuted only because of the kindness of the state.

    The Supreme Court pointed out that the Delhi High Court overstepped its jurisdiction. Hypo-thet­ica­l­ly speaking, if the High Court would have passed the buck to the legislators, what would have been the scenario now? Would it have been a wiser step by the court?

    Firstly, the Delhi High Court, far from overs­tepping its jurisdiction only performed its const­itutional duty. If the Delhi High Court had passed the buck to the legislators I am not at all sure that the law would have been amended in the mean­time. And I am not able to understand the possible “wiser step” by the high court. The court is not a strategist to consider one step as against another. It has a duty to strike down an unconstitutional law and that is what it did through the well-known judicial device of reading down.

    Is expecting our parliam­entarians to take a stand on gay rights asking for too much? Can we expect them to have a humanitarian view?

    Going by what the leading lights of the ruling party have already said, it is not too much to expect members of at least that party to take a stand which is both constitu­tionally correct and also humane. But it is futile to expect a “united view” on it. Also, the matter may not be entirely in the govern-ment’s or the ruling party’s hands, because Parliament may not be allowed to function for a variety of reasons.

    The new anti-rape law has been made “gender specific” where the accused is necessarily a man and the victim a woman. Offences of sodomy are covered solely under Section 377 of the IPC today. Do you think this section should be abolished completely? Will that not leave sexual crimes committed against victims (who are not women) uncovered under the law?

    I don’t think that the section should be abolished completely, and neither did the Delhi High Court think so. The section needs to stand except for decrim­inal­ising private consensual acts between majors. Otherwise, as rightly pointed out by you, victims who are not women will be completely unprotected.

  6. While homosexuality per se should not be criminalised, it is important to protect young children from sodomy. There are frequent reports of young boys being subjected to this against their will, sometimes even by family members. Only yesterday a case came to light of a young child who had been sodomised (anal sex) by a family member. The report is that this went on for several years.

    There are also cases where women are sodomised against their will even in a marriage.

    Hence some caution should be exercised before completely eliminating 377.

  7. Thomas Babington Macaulay
    Lord Thomas Babington Macaulay created the Indian Penal Code in 1860 and this was followed by the Criminal Procedure Code in 1872 and the Civil Procedure Code in 1909. Though they would never admit it, BJP leaders are his best students and admirers!

    The law reads:

    Chapter XVI, Section 377: Unnatural offences

    Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

    Explanations: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

    What is ‘carnal intercourse against the order of nature’?

    Most readings assume it means ‘sodomy‘ i.e. anal or oral intercourse.

    Is sodomy against the order of nature?

    Probably not. Animals engage in (attempted) anal intercourse all the time. So do Catholics in Catholic countries where artificial contraception is forbidden, as indeed do married couples everywhere else in the world to avoid pregnancy.

    All heterosexual couples engage in oral sex of one kind or another. It is the married person’s natural response to pleasing a loved partner.

    The conclusion is that heterosexuals probably engage in ‘acts against the order of nature’ more than homosexuals do!

    Is anal or oral intercourse against the order of nature? It would seem not–though many will disagree because they dislike it or, rather, dislike talking about it. But dislike is not the same as unnatural. In fact sodomy is a natural sexual activity for those men, women and animals who engage in it.

    This law really has nothing to do with the LGBT community or same sex love at all! It has to do with prohibiting what Victorian Christians considered unnatural carnal intercourse as per their interpretation of the goings-on in Sodom as described in Genesis 19:4-5. The key words are ‘know them’ at the end of verse 5. These words are interpreted by theologians to mean ‘have sex with them’. But it is only an interpretation and in fact the issues with Sodom and Gomorrah were political not sexual.

    The Victorian sodomy laws that resulted from a reading of this OT story applied to both heterosexuals and homosexuals. It was not intended to target homosexuals though various national police forces—the Section 377 law exists in 8 former British colonies and is a model for a similar law in 27 countries (4 countries have since repealed it)—may have used it to do just that.

    The court is right to demand that the law, if it is to be repealed or changed, must be changed or made void by parliament (rather than the court, which does not make laws).

    But is this possible in that the Neanderthals who represent the BJP in parliament have already stated that they want to keep the law as it is.

    The BJP wallahs vociferously damn Lord Macaulay and everything this Victorian Christian lawmaker represents, but in fact they are following his dictate to the letter!

  8. What SC really said about Section 377 – Rediff.com – New Delhi – 15 December 2013

    Voices of outrage from the media to the United Nations have claimed the recent Supreme Court judgment has criminalised homosexuality. Clearly, none of them seemed to have read the court’s order that ran into about 100 pages.

    The order certainly didn’t criminalise homosexuality; what it said was Section 377, over which a fear psychosis was being whipped up among gay groups, didn’t criminalise homosexuality and didn’t target homosexuals as a group.

    “Section 377 applies to both man and woman if they indulge in carnal intercourse against the order of nature… that if the view expressed by the high court is taken to its logical conclusion, any provision could be declared to be violative of Article 14.

    No class was targeted by Section 377 IPC and no classification had been made and, therefore, the finding of the high court that this law offended Article 14, as it targets a particular community known as homosexuals or gays, is without any basis,” the order read.

    What does Section 377 say? It only penalises carnal intercourse against the order of nature. This covers homosexuals and heterosexuals alike. The Supreme Court said often, the former category was targeted under the section. It added the wrongs perpetrated on the gay community by a false reading of this section, if any, didn’t make the law unconstitutional.

    The solution, it said, was to clarify the law with suitable legislative amendments, rather than say the law violated the right to freedom and equality. And this is what it asked Parliament to do since it couldn’t amend a law.

    The court judgment can be a tool in the hands of gay groups who feel they are exposed to harassment by people who object to homosexuality. It could silence any court of law bent on penalising a gay couple, said lawyer H P Sharma, who argued in favour of the section. He added the law was used only in the event of a complainant.

    The Union government, which is contemplating an Ordinance to decriminalise homosexuality, under the assumption that Section 377 criminalises it, is acting contrary to its own stand, too. An affidavit filed by the Ministry of Home Affairs had said Section 377 didn’t have any constitutional infirmity.

    It added an unlawful act couldn’t be rendered legitimate because the person it was detriment to consented to it; that Section 377 had been applied only on a complaint of a victim and there were no instances of arbitrary use or application in situations in which the terms of the section didn’t naturally extend to Section 377 of the IPC. It said Section 377 IPC didn’t violate Articles 14 and 21 of the Constitution.

    While misreading Section 377 may lead to harassment of gay couples, the section is the only mechanism to protect victims of sodomy and other actions against the wishes of a person. As such, the rights of these victims are as much a concern as the rights of homosexuals.

    Victims of sodomy, for instance, remain unheard except on rare platforms such as the recent television series by Aamir Khan, where one of the victims said he was sodomised through his childhood and adulthood by a relative who lived in his house. Unfortunately, these victims do not carry as much weight as homosexuals who are, as the court plainly says, not even the target of the section.

    Nonetheless, the court’s judgment is drowned out by the various interpretations of it by the media, eminent lawyers, political parties, etc. This mars the possibility of a discussion on the real problem with the section and how it can be improved to prevent misreading and possible abuse.

  9. In a society that widely accepts corruption, no wonder some voices come up claiming more the rights of the perverted than for protecting the rights to live, to education, and even to medical attention of the down trodden. The declared cause is liberty! Right, we have an unassailable right to destroy ourselves!

  10. Sandhya Jain’s article highlights the Hindu Dharmic perspective to alternative sexuality demonstrating the humanistic and compassionate approach to this ‘human dilemma’ without criminalizing and punishing inhumanly those who were outside the mainstream version.

    The rhetorical question with which this author has ended her article has indeed puzzled many of us too.

    This has been done deliberately to create & cause ‘difficulties & problems’ for the incumbent Prime Ministerial candidate Sri NaMo for whom they have such visceral hatred that they will stoop to any level. This venomous antagonism has been unshackled left,right and centre with which they try to sully him, hound him and accuse him with various types of false ‘allegations’ but he is far far above such mean lowliness.

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