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Section 377: Don’t blame ancient India for prudish excesses of the British

Reading ancient texts is an arduous task, no doubt. But if an opinion is to be let loose in a sea of chaos, more so if the objective is to influence public debate, that reading has to be done. Unfortunately, in the quest to reform archaic laws, notably Section 377 of the Indian Penal Code that makes same-sex relations illegal, facts have been set aside. In their place, a generalised sense of a liberal ancient India has been carved out on one side and a selectively picked notion of ‘Indian culture’ on the other. As in most passionate debates, the truth lies somewhere in the middle.

To the extent that sexual liberality was embedded into India’s laws, morality and society, the reading that our values instead of evolving have taken a U-turn is correct. This is best illustrated by the gentle indulgence of Vatsyayana towards lesbians and gays in Kama Sutra, approximately between 400 BCE and 200 CE. Three forms of what the law today terms as ‘unnatural sexual offences’ --- sex between men, sex between women and oral sex --- have been explored with compassion. You can read the full text in your own time, but here are select excerpts:

On ‘Auparishtaka’ or oral sex between eunuchs, who Vatsyayana described as being “disguised as males” and men, he wrote:

“The following eight things are then done by the eunuch one after the other, viz.

The nominal congress.

Biting the sides.

Pressing outside.

Pressing inside.

Kissing.

Rubbing.

Sucking a mango fruit.

Swallowing up.”

Each of these have been explained in the subsequent paragraphs.

Ancient India dealt with homosexuality far more liberally. Reuters

Ancient India dealt with homosexuality far more liberally. Reuters

Oral sex was not limited to the gratification of men by eunuchs alone. “The male servants of some men carry on the mouth congress with their masters,” Vatsyayana wrote. “It is also practised by some citizens, who know each other well, among themselves.”

Nor was it limited to between men and men, and men and women.

“Some women of the harem, when they are amorous, do the acts of the mouth on the yonis of one another, and some men do the same thing with women. The way of doing this (i.e., of kissing the yoni) should be known from kissing the mouth. When a man and woman lie down in an inverted order, i.e., with the head of the one towards the feet of the other and carry on this congress, it is called the ‘congress of a crow’.”

But even as he understood and expounded the practice as a personal preference, he brought caste and office into the picture, reserving it for the low.

“The Auparishtaka, or mouth congress, should never be done by a learned Brahman, by a minister that carries on the business of a state, or by a man of good reputation, because though the practice is allowed by the Shastras, there is no reason why it should be carried on, and need only be practised in particular cases.”

He looked beyond the oral and explored the world of artificial gadgets, sex toys if you please --- and as ‘unnatural’ as anything else --- as tools for sexual gratification.

"The women of the royal harem cannot see or meet any men on account of their being strictly guarded, neither do they have their desires satisfied, because their only husband is common to many wives. For this reason among themselves they give pleasure to each other in various ways as now described," he wrote.

"Having dressed the daughters of their nurses, or their female friends, or their female attendants, like men, they accomplish their object by means of bulbs, roots, and fruits having the form of the Lingam, or they lie down upon the statue of a male figure, in which the Lingam is visible and erect."

Vatsyayana was writing a treatise on love, lust, sex and relationships. His compassion came from his psychological and studied understanding of human desires. Ancient Indian lawmakers were not so kind. Of them, Manu was the harshest. But even at his conservative worst, he was a liberal, when compared to the British.

"A damsel who pollutes (another) damsel must be fined two hundred (panas), pay the double of her (nuptial) fee, and receive ten (lashes with a) rod,” he wrote on lesbian relationships in Manusmriti, estimated to have been written between 200 BCE and 200 CE. "But a woman who pollutes a damsel shall instantly have (her head) shaved or two fingers cut off, and be made to ride (through the town) on a donkey."

At a time when caste mobility had been capped, that is, once you’re born into a caste you stayed there till death, Manu’s punishment for homosexuality hit home. "Giving pain to a Brahmana (by a blow), smelling at things which ought not to be smelt at, or at spirituous liquor, cheating, and an unnatural offence with a man, are declared to cause the loss of caste (Gatibhramsa)."

While anal sex was not explicitly stated and merely implied, the Manusmriti looked down upon it. “A man who has committed a bestial crime, or an unnatural crime with a female, or has had intercourse in water, or with a menstruating woman, shall perform a Samtapana Krikkhra [that is, subsist on the urine of cows, cow dung, milk, sour milk, clarified butter, a decoction of Kusa-grass and fasting during one day and night],” Manu wrote.

But, again, living upto his reputation as ancient India’s most notorious caste subjugator, he gave respite to higher castes."A twice-born man who commits an unnatural offence with a male, or has intercourse with a female in a cart drawn by oxen, in water, or in the daytime, shall bathe, dressed in his clothes."

Curiously, in his worldview, the punishment for adultery was far greater than that on ‘unnatural sexual offences’, again tempered by caste. "A man who is not a Brahmana ought to suffer death for adultery (samgrahana); for the wives of all the four castes even must always be carefully guarded."

Clearly, even as he wrote the laws and prescribed punishments for homosexuality, Manu wasn’t quite convinced about them.

The third great thinker on laws and sex is Kautilya, who expounded his ideas in Arthashastra, written between 350 BC and 283 BC. Again, we see a relatively mild punishment for what he termed ‘forbidden transactions’.“Similar punishment shall be meted out for any forbidden transaction with any men.”

He was referring to the punishment for such offences for women with a fine of “12, 24 and 54 panas respectively according as the help consists of (i) small things, of (ii) heavy things and (iii) of gold or gold-coin (hiranyasuvarnayoh); and the man, at double the above rates.”

Like in the case of Manu, the punishment for adultery was harsher --- both economically as well as physically. "When any person abets a thief or an adulterer, he as well as the woman who voluntarily yields herself for adultery shall have their ears and nose cut off or pay each a fine of 500 panas, while the thief or the adulterer shall pay double the above fine."

What we see is that the practice of ‘unnatural sexual offences’ like homosexuality, lesbianism and bisexuality in ancient India was not encouraged, even looked down upon. But the punishment for indulging in it was milder than other sexual expressions. As a crime, adultery was considered a bigger offence.

The British rule regressively changed things for the worse. In 1828, a prudish administration turned sodomy into an offence, as serious as murder.

"Every person convicted of the abominable crime of buggery committed with either mankind or with any animal, shall suffer death as a felon," clause LXIII of chapter LXXIV in Act for Improving the Administration of Criminal Justice in the East Indies stated.

It is from this idea that the monster of Section 377 was born in 1860. In the 160 years since, the death penalty has been reduced to life imprisonment. During this period, society has moved on and what was done behind closed doors is now out in the open.

If two individuals seek to express sexual love through same-sex relationships, it is for lawmakers to ensure they are not hounded or exploited. The critical word is: consent. But that applies to heterosexual relationships as well.

The argument that only a small chunk of India’s population is LGBT (lesbian, gay, bisexual and transgender) --- there are about 1.2 million male homosexuals in India --- and since the dice of democracy is loaded against them, they can’t express themselves without the threat of imprisonment, is fallacious. Along with democracy, the Constitution of India carries the word ‘Republic’ --- the primacy of rule of law over the brute force of a majority. The minuscule LGBT community must be protected.

As the debate now moves to Parliament, we hope that sense of the Republic will reflect in the sense of the House. Members of Parliament (MPs) and commentators alike would do well to not blame ancient India for the prudish excesses of the British. While Vatsyayana, Manu and Kautilya provide rich references to both sides of this debate, we mustn't be trapped in the past. The future lies in freeing the LGBT community.


Published Date: Dec 19, 2013 11:14 AM | Updated Date: Dec 19, 2013 11:15 AM

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