The cacophony following the Supreme Court’s verdict setting aside the Delhi High Court’s 2009 judgment on Section 377 that decriminalized gay sex has generated more heat than light. Till one makes a proper study of the judgment 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 needs to be revisited clause by clause; articles that need amendment must be amended, and those that need to be junked must be junked. Article 370 and special rights for undefined minorities, imposed by Jawaharlal Nehru, need special examination. Constitutional experts, meanwhile, must enlighten us if the Constituent Assembly included articles like 377 by default, without discussion or application of mind, possibly due to paucity of time. We have a right to know how this imperfect Constitution was imposed upon us.
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 practice(s) are not approved and are sometimes even punished. This is pertinent as the criticism that the judgment 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!
Since 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 judgment”, 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 judgment.
Coming 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 Sastra 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 categorized 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.
Niticentral.com, 14 December 2013