Freedom to Love is For Everyone: Amish on LGBT Rights, Sec 377

If heterosexual couples have the freedom to love, why are LGBT couples not allowed the same freedom, asks Amish.

(Photo: Altered by The Quint)

Change happens when one is ready for it—be it at an individual or a societal level. And one arrives at this readiness through discussions and debates. It was heartening, then, to observe a few politicians from across the political spectrum take a liberal stand on the issue of LGBT rights.

I believe it’s time we debated Section 377 of the Indian Penal Code that criminalises sexual activity of LGBTs (Lesbians, Gays, Bisexuals and Transgenders). It is an egregious and illiberal Section that must be repealed. There are some who have reservations based on cultural and religious grounds. Well, let’s discuss them.

I am not as deeply familiar with Christian and Muslim scriptures as compared to Hindu texts, but we know that the Semitic faiths specifically ban homosexual relations, which are viewed as an abomination and a serious crime. But there is no uniform interpretation or approach.

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Muslim Saudi Arabia prescribes severe punishment, including the death penalty for homosexuality, while Kuwait does not criminalise lesbianism (though male homosexuality is still a crime). Christian Ireland, a country that bans abortions even in cases of pregnancies induced by rape or incest, has decriminalised homosexuality. I am sure liberal interpretations on the LGBT issue are possible and I leave it to Indian Christian and Muslim liberals to find them and speak out. Let me address the issue from a Hindu perspective.

Many stories from Hindu texts make a reference to LGBTs in a non-negative way. There is the famous example of Shikhandi from the Mahabharat, who proved to be the nemesis of Bhishma himself.

King Bhangaswan was a man who later changed into a woman, comfortably exercising his freedom of choice. The founder of the great Chandravanshi clan, Illaa, was born a girl. At one stage, she transformed into a man named Ila, and sired more children.

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Latest Smriti is the Indian Constitution

Lesbianism finds mention in Vatsyayanaji’s Kamasutra. I do not know of any story or text from ancient India in which a person was punished severely for his/her sexual orientation. Admittedly, at times one didn’t find approval for it in the texts, but never was it singled out for strong disapproval or viewed as a serious crime.

No doubt, some may argue:

What about Hindu community laws? What about the Manu Smriti? Firstly, we should know that the Smritis (or law books) were man-made and visualised as temporal, unlike the Shrutis (like the Vedas) which were revered as having divine origin.

Compiled periodically to regulate society, there are numerous Smritis. The conservative Manu Smriti was given stark publicity by the British above all other Smritis, and presented as if it was the only one. But it’s not; there are many others. The Smritis essentially reflected the collective mood of the times they were written in.

Some Smritis are very liberal and some are conservative. We can write our own Smriti, at any point in time; in fact we’ve done so, recently. And the latest Smriti is called the Indian Constitution.

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Section 377 Doesn’t Reflect Traditional Indian Attitudes

Having said that, let us examine what even the conservative Manu Smriti has to say about homosexuality. It was listed as a relatively minor misdemeanour; and the only punishment prescribed was a ritual bath with your clothes on. Interestingly, if a man cheated on his wife, it was considered a very serious crime, the punishment for which was the death penalty.

So even the conservative Manu Smriti does not view homosexuality as an abomination. Culturally, ancient India had a liberal attitude towards non-mainstream sexual practices. Perhaps this was because sex itself was not embroiled in torturous guilt. It was not an obsession either. It was just another beautiful aspect of this wondrous cycle of life.

Section 377 does not reflect the traditional Indian attitudes towards sex. It is, in fact, a reflection of the British colonial mind-set, influenced by medieval interpretations of Christianity. This attitude gradually seeped into the colonised people over the centuries.

Having said so, this cultural debate is, as it should be, an ongoing process in society. Laws on the other hand cannot, and should not, be circumscribed by religious or cultural restrictions. That is not the way a multi-religious society can create an efficient and stable State.

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If Heterosexual Couples Have Freedom to Love, Why Not LGBT?

A liberal society is built on the foundation of respect for liberty and individual rights: none shall face discrimination from the law, and all can exercise the right to lead their life the way they wish to, so long as they don’t force their choices upon others. However, the post-independence form of Indian liberalism is a unique creature; it is more respectful of group rights than individual rights.

Ergo, we have incorporated many sectarian laws into our statute books. As mentioned elsewhere in this book, Hindus have tax benefits that are not available to non-Hindu Indians through the HUF clause (also see Divide And Rule Laws in Modern India, page 131). Muslim women suffer injustices (such as polygamy and triple talaq) that their other Indian sisters don’t.

The Right to Education (RTE) Act, combined with the 93 amendment, specifically contains clauses that are inapplicable to Muslim and Christian educational institutions. There are many more such examples. Most modern Indian liberals do not find such sectarian laws odd because, I daresay, they have not imbibed the spirit of genuine liberalism and individual rights.

A modern State can only be premised on individual rights, with no differentiation under the law on the basis of group or community entitlements. Hence, applying the principle of true liberalism, if heterosexual couples have the freedom to love each other, LGBT couples deserve it as well. Let’s be truly Indian. Let’s be truly liberal.

(This article is an excerpt from Amish’s new book Immortal India. It has been republished with permission and was first published in Hindustan Times, 2016.)

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