Nine years after the Delhi High Court decriminalised homosexual acts among consenting adults by reading down Section 377 of the Indian Penal Code (IPC), the Supreme Court today began hearing in the matter.
The hearing assumes immense significance in the aftermath of the Supreme Court judgment last year declaring privacy as a fundamental right. Implemented in 1860 by the British colonial rulers, Section 377 puts homosexuality under unnatural offences providing for sentence upto life imprisonment.
A bunch of petitions challenged the wordings in Section 377, “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal” saying it violated the rights of a section of society represented by LGBT (lesbians, gays, bisexuals and transgenders). The Delhi High Court on July 2, 2009 pronounced judgment making voluntary homosexual act between adults as legal. Since then, the Supreme Court has heard a challenging petition and a review petition. It restored the original provisions of Section 377. Now, after a curative petition was filed, a constitutional bench is tasked to settle a debate that has been raging in India since ancient days.
Homosexuality in ancient India: 10 points
- In the temples of Khajuraho, there are images of women erotically embracing other women and men displaying their genitals to each other. Scholars have generally explained this as acknowledgement that people engaged in homosexual acts.
- In the Valmiki Ramayana, Lord Rama’s devotee and companion Hanuman is said to have seen Rakshasa women kissing and embracing other women.
- At another place, the Ramayana tells the tale of a king named Dilip, who had two wives. He died without leaving an heir. The story says that Lord Shiva appeared in the dreams of the widowed queens and told them that if they made love to each other, they would have a child. The queens did as ordained by Lord Shiva and one of them got pregnant. They gave birth to a child, who went on to become famous king Bhagirath, best known for “having brought River Ganga from heaven to the earth”.
- The Mahabharata has an interesting story about Shikhandini, the feminine or transgender warrior of the time and responsible for the defeat and killing of Bhishma. Shikhandini was a daughter of King Drupada, who raised her as a prince to take revenge from the Kurus, the rulers of Hastinapur. Drupada even got Shikhandini married to a woman. After her wife discovered the reality, she revolted. The day was saved by divine intervention bestowing Shikhandini with manhood during night. Shikhandini henceforth lived like a hermaphrodite.
- During the great churning of milky ocean, according to Mastya Purana, Lord Vishnu took the form of a beautiful woman, Mohini to trick the demons so that the gods could drink all the Amrut (the immortal juice found from churning of ocean). Meanwhile, Lord Shiva saw Vishnu as Mohini and instantly fell for him. Their union led to the birth of a child – Lord Ayyappa.
- Another scripture, the Narada Purana has references to what may be classified as “unnatural offences” described in Section 377. At one place, the Narada Purana states, anyone who discharges semen in non-vaginas, in those beings destitute of vulva, and uteruses of animals is a great sinner and will fall in hell. The purana does not approve of “unnatural offences” but the references prove that they were in practice.
- The famous law code, Manusmriti provides for punishment to homosexual men and women. Manusmriti says that if a girl has sex with another girl, she is liable for a fine of two hundred coins and ten whiplashes. But if lesbian sex is performed by a mature woman on a girl, her head should be shaved or two of her fingers cut off as punishment. The woman should also be made to ride on a donkey.
- In the case of homosexual males, Manusmriti says that sexual union between with two men brings loss of caste. If a man has sex with non-human females or with another man or indulges in anal or oral sex with women he is liable for punishment as per the “Painful Heating Vow”.
- The ninth chapter of the Kamasutra of Vatsyayana – composed in around 4th century BC, talks about oral sexual acts (Auparistaka), homosexuality and also of similar activities among transgenders (Tritiya Prakriti). The book, however, does not favour homosexuality of any kind.
- Arthashastra of Kautilya – a treatise on politics – also mentions about homosexuality. But the book makes it a duty of the king to punish those indulging in homosexuality and expects the ruler to fight against the “social evil”.
Ancient Indian texts, inscriptions and paintings on temple walls, clearly, don’t approve of homosexuality, but the repeated references do acknowledge its existence in those days.
News credit : Indiatoday