The Apex Court is in the midst of hearing a revision of its earlier ruling on Article of British origin, namely the 377, and it is hoped that finally this Victorian piece among the thousands of such yokes hanging heavy on the neck of the Indian people, shall once for all go. However, the road is not as clear as it seems to be.
Hurdles are being created by seeking relief under certain notions of Western origin which do not apply in this case. This once again illustrates our perverted habit of seeking solutions to modern scourges of Western origin through Western solutions only when the ancient Indian solutions are ready reckoners in hand.
Article 377 is once again sought to be removed under the right to privacy and under the right to protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law that of liberty to life and freedom (Art 21). As we shall see further down this article, both these do not apply here.
The Indian socio-political climate has been charged with emotional demonstrations totally bereft of reason on this issue for a long time. A glimmer of hope was seen by the gays of India in 2016 when a senior RSS leader, Dattatreya Hosabale, made a statement (at India Today Conclave 2016) on March 17, that homosexuals should not be regarded as criminals in the eyes of Indian law. But after what seemed drops of nectar to the Kinnars of India, the RSS functionary clarified that he would let them go from the clutches of law as they are diseased, mentally ill, and not natural healthy people with just a different sexual orientation.
Hosabale’s volte-face typifies the longstanding flip-flop on the issue of homosexuality and is continued even now by the Modi Government which has taken no stand on the matter because of political timidity.
The average Hindu laity as well as most swamis and mathaadhiishas are unaware of shastric injunctions and hence consider 377 as traditional Hindu law. The Christians and Muslims are not willing to reform on this matter either. Hence the sad onus only the Court. Things would have gone in an easy way in favour of scrapping 377 decades ago, if not its goodness or badness, but its naturality or unnaturality, the most important factor in traditional Hindu view, had been given due weightage. Both, the contemporary followers of the Western modernism, and the upholders of traditional Hindu values, have simply neglected the vast amount of legal material available from the ancient Indian past. This article aims to provide some basic clarifications which will help us make a timely choice today.
Homosexuality and law
As it is well known, while the Delhi High Court on July 2, 2009 struck down Section 377 of Indian Penal Code, which criminalises homosexual activity, the Supreme Court reversed it on December 11, 2013, and also rejected its review petition on January 28, 2014. However, after much campaigning from the civil society as well as the LGBT community in India, on January 28, 2016, the Supreme Court once again decided to appoint a five-judge bench, to consider if the curative petition on its earlier order can be heard.
Will it be so easy for the larger bench to reject all the arguments on the basis of which the SC had reversed the 2009 Delhi HC judgment? Let us not forget that, on December 11, 2013, the bench of Justices G S Singhvi and S J Mukhopadhaya had said that Section 377 “by itself did not suffer from constitutional infirmity”, but clarified that “notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amending the same as per the suggestion made by the attorney general”.
An impression is being created that earlier the judiciary was conservative in viewing the matter, and now that a senior member of ruling government, namely Arun Jaitley, along with the RSS functionary, have called for a modernisation of the general view on homosexuality, the courts shall oblige.
Nothing can be farther from the truth.
Section 377: A Western law
The reason why homosexuals here have been made to suffer the threat of persecution (though not many registered cases in law have been recorded against them under Section 377) is the shaky nature of arguments that are put for scrapping Section 377. We shall see during the course of our discussion why it is so.
To begin with it should suffice to say that just as the Section 377 was a Judeo-Christian imposition, totally foreign to notions of sexuality in India, its curatives now being touted by the imitators of Euro-American contemporary moral relativism, are also equally repugnant to the notions of sex and marriage for the majority of Indians.
In fact, democratically speaking, besides the Hindus, who once upon a time in ancient India, accepted homosexuality as natural for those born homosexuals, but became a victim of the colonial belief in the criminality of the homosexual need, imposed first by the Islamic clerics and then by the Christian British, now in modern India, besides the Hindus (still colonised in so many ways) the majority of the Muslims and Christians are still against dropping Section 377. They are not going to buy the modernised reformists agenda of Euro-American Christian lands which are now aggressively pushing gay rights all over the world to get rid of their own guilt of having persecuted the gays so viciously for centuries.
Kapil Sibal, like the bombastic and loose-tongued courtier Jacques of the deposed Duke in Shakespeare’s As You Like It, has gone full hog for the plea that sexual preferences in bedroom are a matter of adult choice and any curtailment by law is a denial of freedom.
To substantiate, I quote from this Times of India article:
“The most precious right to privacy linked to right to life is sexual activity. If any provision of law restrains such precious right to privacy even when the sexual relationship is consensual and happens within the four walls of the persons’ homes, then it must be termed unconstitutional,” Sibal said. After raising the constitutional question, Sibal added, “The Supreme Court’s judgment upholding Section 377 making gay sex a criminal offence has heaped indignity and stigma on the present as well as future generation, who have and who would have such sexual orientation”.
So here is on a high pedestal the grand notion that two individuals of age 18 or above can have with mutual consent any kind of sexual activity and no social or moral restrain shall apply to them. The sexual bedroom is as sacred, personal and private as a yogi’s cave, where he can do his own sadhana in his own way and those outside have no business to peep in. Earlier the Apex court had set aside this argument, it may do it again.
Problems with Euro-American concept of sexual freedom
A simple look at this kind of worship of sexual freedom shows that it goes against not only common sense but against all values of public and private conduct. Implicit in this argument is that the homosexual act is good and right if done privately but wrong if done in open. This is unacceptable. The act in itself needs to be evaluated as right or wrong conduct. Stealing is bad, done privately or in open. So is adultery. What about sodomy or lesbian embrace?
Most reformers are still working under the Euro-American pleas of freedom of the individual and are trying for a revision from the Supreme Court. My efforts to convince the people in the case, to change their pleas have failed. They only take a highly dubious position that sexual privacy is a matter of individual right and hence upheld by the Indian Constitution.
The Delhi High Court, under the impact of the Western lobby of sexual freedom, granted the plea, but the Supreme Court struck it down as sexual behaviour is not a matter of individual whims or demands but an ethical issue decided according to the social norms of a society.
Throughout history, cultures have defined it differently. Some cultures have regarded it as according to nature and hence not only permissible but also undeniable. For such a culture, denying it was a cruelty and a legal offence. The ancient Indians believed and practised so. Later in this essay, we have given quotations from ancient Hindu texts. Therefore, it is surprising that previously some scholars with RSS proximity, such as Professor Kapil Kapoor and Dr Subramaniam Swamy, have presented an opposite picture of it.
Under this sort of influence, a young man once emailed me: “However, in R Shamastry’s translation (the one which is freely available on the internet as a pdf file), we find the below line under chapter XIII, “Punishment for violating justice” in Book IV, “The Removal of Thorns” of the Arthasástra of Kautilya: “A man having sexual intercourse with another man shall also pay the first amercement.” Is this a mistranslation or am I referring to the wrong text?”
This halfway reading of the classical texts, so common now among TV tigers, on religious matters of Hindu tradition, continues to create confusion. This needed the following clarification:
Please see the sutra: “Kushth.onmaad-klaibyaadibhih kutsaayaam ca satya-mithyaastuti-nindaasu-dvaadashapan.ottaraa dand.aastulyeshu”.
“Twelve of more panas is the fine for one who has maligned a leper, a mentally deranged, a klaibya/eunuch (could mean any of the homoerotic kind) through speaking lies or half lies.” Now to 4.13.40: “Striyam-ayonaugacchatah, puurvah saahasa dand.ah., purusham-adhimehtashcha.”
“Penetrating a woman but not in her yoni/vagina, or a man in his anus with penis attracts fine of the first order.”
Now see the context of these different offences.
The first is about “maligning in society”, and not having or not having sex with a eunuch. So it proves that as citizens, eunuchs were protected by law.
The second is about having “non-vaginal sex with a woman”. This refers to unwilling wives or kulavadhus and not to sex workers in courtesan houses. Sex with a man/purusha refers to a man who is not a sex worker or a homosexual. If Arthashastra had meant a homoerotic, it would not have used the word purusha but used the word kliba or shand.a. Thus, one kliba making love to another is not punishable.
The Section 377 of Christian British origin condemns any man to man sex as it does not admit of naturally homoerotic persons. But the Kamashastra and other texts all admit. They allow men to indulge with homoerotic eunuchs and eunuchs with each other. Thus for Christians, all same-sex sex is sin, but for Hindus it is to not, if one person is homoerotic.
In short, leave the Bible and go to Smritis. The BJP and RSS will do well to go back to Hinduism as it really was.
For the Greeks there was no reason to delve into its naturalness, as both procreative heterosexuality and pleasurable homosexuality were not only permissible but admirable and a sign of good living. The Arabs and several other cultures influenced by the Greeks accepted this view and in spite of religious sanctions against it accepted it as useful.
For a number of tribal cultures it is not such a big issue and most societies except Abrahamics have looked the other way regarding homosexuality. But Jews, Christians and Muslims have defined it as unnatural and hence a sin/haraam and punishable.
Not surprising in that earlier in hearings, as the TOI reports, that when”…the bench asked, “Is there anyone opposing these petitions?” Manoj V George stood up and said his client, the Kerala-based Apostolic Churches Alliance, opposed it, along with the Muslim Personal Law Board. The churches’ association opposed it mainly on religious grounds, saying “homosexuality is the negation of the creation of order in human sexuality”.
So the crucial question now is: on what grounds will the present Supreme Court revise the view of its own earlier bench, when the conservative Hindu majority, along with traditional Christians and Muslims, do not support any revision? And that is why Parliament is not willing to even debate at length, let alone take a stand on the issue. It is too hot a potato for Modi as well.
Of course, the SC in its wisdom may want to support the Euro-American position and scrap Section 377 in spite of the inner rejection it may incur from the traditionally religious public of India. But the West is not going to stop with the scrapping of Section 377. They want a lot more, nothing less than gay marriage, gay rights to adoption and to property, and just about everything for gays that heterosexuals have.
In fact, the West has been pushing for a special status for the gays to propagate and preach homosexuality, as a minority lifestyle, as it promises a great market share. There is more to this movement for gays than just the Christian guilt of having oppressed them for over a millennium.
The ancient Hindu laws on homosexuals
Many people think that ancient Hindu ideas were entirely compatible with the views of modern European and American notions. Scholars like Ruth Vanita and some others have looked at a lot of Pauranic stories and deduced from them a full approval of the modern Euro-American notions on the subject. The Hare Krishna followers located there have also held a similar view. Therefore it is imperative that one goes to really see the classical texts and collect evidence on the status and life of homoerotic individuals in ancient India.
One hears all the time, the usual sentiment that as Hinduism is a very tolerant culture, that it was totally open homosexuality and that it was more modern than the moderns. Many people argue, like these scholars of the Hare Krishna order, that as Hinduism believes that every human being is part of the supreme being, Brahma, and hence homosexuals cannot be considered as beings of lower category. They also think, without any evidence, that in the Vedic age, homosexuals were fully integrated into social and monastic orders.
I must say that most of these sentiments are uninformed. The mythic analysis on which Ruth Vanita and several others have relied is not the right evidence as literature was not the place for codification of social laws. The laws by which people lived, were enshrined in the texts of laws, the Dharmashastras, and other shastras of social and medical disciplines.
Talking about the textual evidence, the Kamasutra of Vatsyayana, does define a third order of humans called the “tritiiyaa prakriti” or third nature. These third nature persons are of two kinds, one of the female kind and the other of the male sort (“dvividhaa tritiityaaprkritih, striiruupinii purusharuupinii ca.” 2.9.1). Vatsyayana goes on to say that “she”, who behaves like a woman, is to be employed for oral sex (“tasyaa vadane jaghanakarma tadauparisht.akam aachakshate”2.9.3). She was a paid sex-worker like a courtesan who should work like one (“vaishyaavat caritam prakaashayet” 2.9.5). For the male kind, who has the desire for males but who cannot make her nature very evident, “he” should take to the profession of massage-giver and thus coming into contact with males satisfy them through oral sex (2.9.6-10). In this context the act of auparisht.aka is described in detail in the Kamasutra.
The ancient Hindu society, as is evident here, did not consider the homosexuals as perverts or sinners. As the term, tritiiya-prakriti or third-nature describes them, they are being themselves, they are being natural. This is the primary difference between the Christian and the Hindu attitude. Christianity did not accept the third-nature people and hence imposed a punishment on their activities. With dues respect to Baba Ramdev, if they are natural, they are not sick or psychologically challenged, and hence “incurable”.
For the Hindu social order, the homoerotics were not expected to follow the heterosexual norms of behaviour. They cannot be blamed for being what they are. And for this reason, accepting their nature, they were not excommunicated or purged from human societies. They had to be given a place in it and they were to be protected and prevented from harm by the State.
The Arthashastra prescribes a fine for those who persecuted a homoerotic person (3.18.4) and it prohibits making of eunuchs even in the conquered population by a king by castrating captured males of the vanquished (13.5.13).
This was in direct contrast with the Arabic societies and what the Islamic governments did very often as a state policy. The most fierce warrior commandos called the Genitzaroi of the Ottoman Empire were made out of very young boys abducted from the Greek villages under subjugation.
But the Hindu society accepted the third nature of persons who were born with it and did not want to replicate it for any purpose of social engineering. There is ample record that the Christians promoted eunuchs and homosexuals to practise religious castration and Muslims profusely castrated the vanquished populations to create classes of menial and warrior slaves.
As has been pointed out by Dr Come Carpentier de Gourdon, this strategy or creating a real and/or simulated class of homosexuals for an exploitative purpose is being now pursued by modern corporations in fashion industry. They want to promote homoeroticism as homosexuals who usually do not have the burden of raising families and are great consumerists and hence great customers. The breakdown of the family institution, in modern West, has contributed immensely to the promotion of homoerotic choices (often not psychological and innate but simulated under social fads).
Allocation of professions to homosexuals in ancient India
While accepting the third nature of (tritiiyaa prakriti) some persons, the ancient Hindus gave them a special place in the social order. They were designated to be part of the class of sex-workers and performers of music and dance. In fact, till around the 10 century AD, prostitution was a legal profession, taxed and protected by the State. It was an enshrined duty of the king in the Dharmashastra texts.
The homoerotics as part of the class of courtesans, musicians, dancers and performers had a legal protection and their incomes and their sustenance were ensured. This position was certainly not highly respectable and was disadvantaged, as it was of a lower category. In fact, it was out of the varna order or varnabaahya.
But they also had the freedom/advantage of not having any obligations of adopting/raising any children, or performing the rituals for ancestor worship, which was a major obligation for the varna Hindus and involved incurring a substantial financial burden. Homoerotics were free from many such burdens of social restrains. Difficult for us to imagine today, it was a free life in a major way given the obligation-bound ancient society.
Ancient Hindu society envisaged marriage as primarily devoted to procreation and raising of able and educated individuals who would contribute to society by performing duties to the living relatives and the dead ancestors. While pleasure (kaama/rati) was one aspect, and a highly prized one, of human sexuality, dharma (moral obligations), artha (commerce) and moksha (liberation) were the other three commitments.
As the homoerotics or the Kinnars were not capable of performing those obligations as they could not procreate, they were made into a special class and given a jati or guild. It may also be pointed out, that many homoerotics, impotents or sperm-count deficient persons, continued to be part of usual varnas and jatis. Ways were found to provide them with heirs, one method being niyoga.
Coming to the present-day situation, it must be said that historical developments have jumbled up the ancient solution. The Islamic intervention in the medieval period altered the status and social acceptability of the homoerotic class. The performing arts of theatre and dance have been taboo in urban life and prostitution has lost its legal and respectable status, though still preserving itself, as a repository of music and dance wherever it survives in, howsoever, an abject state.
Besides the entertainment industry of yore, the homoerotics had a much greater employment in harems of Sultans and Rajas and a connection with espionage, administration, maintenance and even military protection.
It was the British who delivered the stroke of grace for the homoerotics. The Biblical and Christian prejudice against sodomy turned the Kinnars of India into criminals. It delegitimised the profession they had been legally awarded earlier and prevented them from taking to a new one.
As Indians have been too slow to alter the Criminal Procedure Code, the section stating punishment for homoerotic contact has not been still eliminated from Indian statute books. It should be soon done away with and the traditional freedom restored. But the dismemberment of these people from social order created by the British cannot be restored so easily. It would take some serious research to find out what are they now tending towards as professions. At a cursory glance one may say they are to be found a lot in fashion and film industry.
Hindu view of gay marriage
I must comment upon the contentious issue seizing the arena of debate, that is, whether gay marriage should be legalised or not. I express my candid opinion that while gay cohabitation should not be illegal, persecuted or even frowned upon, giving the same rights to gay cohabiters as to married heterosexuals couples is not advisable. Some difference between gay partnership and heterosexual marriage is necessary.
The children adopted by gays are very likely going to acquire a pseudo-gay syndrome. This is going to be unhealthy for the institution of family which is already under many threats and is almost on the verge of extinction in Europe and America. Indians have to think upon this matter at length and with seriousness as there are already too many detractors in the media and the press who are working overtime to push the Euro-American homoeroticism.
One must not underestimate the fact that the Western fascination with homoeroticism is based on consumerism. Under the garb of providing equality, the “same-sex right” lobby is going to create greater instability as gay marriages do not hold any particular assurances of stability. The adopted children of gays are very likely to be gay and thus we will create unreal but “rightful” gays.
For the Euro-Americans, the challenges are many and diverse. Russia, for instance, needs a population upsurge. Putin has explicitly stated that Russia is under a population decline and they need more children which gay marriages are not going to provide. Quite a few countries like Greece and in East Europe have the same drawback. Japan is facing the biggest population decline in coming years. The present day advocacy of homoeroticism in the West is not likely to continue for very long.
The task before Indian social thinkers, lawmakers and the judiciary is not only to provide relief in the present Section 377 mainly to undo the criminalisation of a people done under a Biblical bias, but to refrain from developing a discourse that meekly submits to the approach being sanctioned by the modern West. It is also hoped a true appreciation and understanding of the ancient Hindu approach will not be distorted by so called votaries of “Hindu interests”, that the Hindu leaders, scholars, saints and sannyasis (like Baba Ramdev who claims that yoga can cure this “illness”), shall actually consult the Dharmashastras and the legal texts before making pronouncements. In fact, convincing the Hindu laity by and large of the true historical facts will make matters easier for all.
Kamasutra and Khajuraho
The Hindu Right has to revise its discourse on both. At present even the Hindu Right has accepted what Wendy Doniger and the likes have to say on it, that is Kamasuutra and Khajuraho were a symbol of sexual freedom and rather even sexual libertinism.
I shall like to point out that ancient and medieval treatment of sexuality was highly restrictive. The ancient society was very clear that shringaara was to be indulged only in the grihastha stage of life and was not only to be encouraged but was obligatory. Although part of the obligation was for meeting the demands of procreation for the sake of preserving the family line and the social needs, it was not to be performed perfunctorily but with all the passion and joy that the force of nature releases in a healthy mind. The judicious man was one who knew how to seek sexual fulfillment and yet not transgress in public his other obligations. As Vaatsyaayana admonishes, one should conduct oneself in such a way in the world that all the three aspirations (trivarga or purushaarthas) of right conduct (dharma), profit (artha) and sexual desire (kaama) are achieved without any one obstructing the other two (“trivargasaadhakam yat syaad dvayor ekasya vaa punah/ kaaryam tadapi kurviita na tu ekaartham dvibaadhakam.” Kamasuutra, Trivarga-pratipatti-kara.nam, Chapter 2 verse 40).
Similarly, it should not be imagined that women dressed the ways the devaanganaas were shown on temple sculptures. These temples belonged to certain Shakti cults, which were not free or open, but esoteric. Yoga was not taught openly, not even asanas. Just till 30 years ago, no asana was done in a park The Buddhist sexual tantra paintings were made by monks, not by free-wheeling Bohemian painters like MF Husain.
Indian intellectuals have a poor understanding of the sexual history of India. The subject has not been studied carefully. We have either men like Subramaniam Swamy who have recently jumped on to the bandwagon of Hindu studies and make misleading statements on homosexuality in India, distorting the historical facts or we have a Sadhu Samaj/ VHP aversion to discussion on Hindu sexuality. (Just wait till the courts surprise you as they have done by banning Santhara).
The RSS could have easily arranged for several seminars on the subject through the chairpersons it has appointed to various academic councils and art institutions. There is something more than Aryan invasion and Saraswati river which needs intellectual attention.
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Dr. Bharat Gupt is a retired Associate Professor who taught at Delhi University. He can be contacted at [email protected].