Note: I will not indulge in other related topics of LGBT+, nor will deal with the political aspect of it. I will, also, try to not give any subjective interpretations and opinions.
Introduction
The ongoing case of Supriya Chakraborty & Anr. v. Union of India [1] (2022), has re-ignited the demands for the recognition of homosexual marriages in India. India is one of a handful of countries in the world having a safe environment for homosexuals, the world and its courts look to the Supreme Court of India and the Parliament of India for guidance and reference.
Let us examine homosexuality from a few perspectives including the Indic/Hindu lens. Regarding same-sex marriage, the Hindu concept of vivāh has prajā (procreation) as one of the central aspects. Since that is not possible with same-sex couples the concept of vivāh is meaningless to talk about concerning same-sex couples.
Dharmaśāstras
Many people quote verses from dharmaśāstras considering them authoritative law books of Hinduism (which they weren't). Let us get some things cleared first. The dharmaśāstras were never ratified law codes. They had no power to enforce the rules in them in any kingdom. The insistence of some Hindus that the dharmaśāstras somehow define eternal and unchanging law for all Hindus. Far from being eternal or unchanging, the dharmaśāstras were only one centre of authority in the polycentric Hinduism practised for centuries. This fact is understood by the fact that the dharmaśāstras were never official legal codes and had no power in important matters of jurisdiction which were done by local, regional codes. Also, the fact that some aspects of dharmaśāstras are not just outdated for today’s time, but they rarely engage with contemporary issues even in their times. Law books do that but dharmaśāstras are a specific type of literature that didn’t do that.
Now let us look at the commonly quoted verses from the most prominent dharmaśāstra, Manusmṛti (MS), which ostensibly condemn homosexuality.
Verses ‘condemning’ male homosexuality
ब्राह्मणस्य रुजः कृत्वा घ्रातिरघ्रेयमद्ययोः ।
जैह्म्यं च मैथुनं पुंसि जातिभ्रंशकरं स्मृतम् ॥ ६८॥
Making a Brahmin cry, smelling liquor or substances that should not be smelt, cheating, and sexual intercourse with a man — tradition calls these sins that cause exclusion from caste. (MS 11.68) [2]अमानुषीषू पुरुष उदक्यायामयोनिषु ।
रेतः सिक्त्वा जले चैव कृच्छ्रं सान्तपनं चरेत् ॥१७४ ॥
If someone ejaculates his semen in non-human females, in a man, in a menstruating woman, in any place other than the vagina, or on water, he should perform the Sāntapana penance (MS 11.174).मैथुनं तु समासेव्य पुंसि योषिति वा द्विजः ।
गोयानेऽप्सु दिवा चैव सवासाः स्नानमाचरेत् ॥ १७५॥
If a twice-born has sexual intercourse with a man or a woman in an ox-cart, on water, or during the day, he should bathe with his clothes on. (MS 11.175)
MS 11.68 is used to show how great an offence it is that it causes one to fall from his jāti. The author the word used for jātibhraṃśakaram. It is unclear how jātibhraṃśakaram (exclusion from caste) differs from pātaka (falling from caste). Though, it is a lesser sin than the latter. The severity of jātibhraṃśakaram can be checked in Hindu Law: A New History of Dharmaśāstra, and I quote,
Only at this point, after having listed the pātakas of different types, do the texts generally treat sins of less grievous sorts; and this they do in a comparatively cursory fashion. Moreover, sometimes the titles of even these relatively minor sins suggest a connection with social ostracism. Thus, for example, one lesser type of sin in Manu is the “sin causing a fall from caste” (jātibhraṃśakara) and another is the “sin causing one to become mixed” (saṃkarīkaraṇa). [3]
In MS 11.174 the author gives the prāyaścitta (penance) of this, and it mentions Sāntapana penance i.e, subsisting on cows’ urine, cow dung, milk, curd, ghee, and water boiled with Kuśa grass, and fasting during one day.
But in MS 11.175 the author says if a dvija (any one of the upper 3 varṇas) has sex with a man (maithunaṃ tu samāsevya puṃsi), he should take a bath while wearing clothes (savāsāḥ snānam ācaret). So, the prāyaścitta of this ‘great offence’ which causes one to fall from his jāti, is merely taking a bath while wearing clothes. This is merely a cleansing bath which should
Moreover, we can see that this ‘sin’ has been grouped with simple acts like intercourse during the day. In the same verse (11.175) mention of dvija implies the exclusion of Śūdras and others, while only including Brāhmaṇas, Kṣatriyas and Vaiśyas. Secondly, even in the case of a dvija male committing such an ‘offence’ of having sex with a male, the prāyaścitta is way too simple. We can infer that the author of Manusmṛti did not think of it as something extremely bad, which is why he has stated such a simple prāyaścitta.
Verses ‘condemning’ female homosexuality
कन्यैव कन्यां या कुर्यात् तस्याः स्याद् द्विशतो दमः ।
शुल्कं च द्विगुणं दद्यात्शिफाश्चैवाप्नुयाद् दश ॥ ३६९ ॥
If a virgin violates another virgin, she should be fined 200, pay three times the bride-price, and receive ten lashes.या तु कन्यां प्रकुर्यात् स्त्री सा सद्यो मौण्ड्यमर्हति ।
अङ्गुल्योरेव वा छेदं खरेणोद्वहनं तथा ॥ ३७० ॥
When a woman violates a virgin, however, her head ought to be shaved immediately — alternatively, two of her fingers should be cut off — and she should be paraded on a donkey.
Verse 8.369 discusses a scenario where a kanyā (virgin) commits a “sexual offence” against another kanyā, resulting in physical and financial punishment for the offender. The punishment is imposed on only one of them. According to most traditional commentators, this punishment focuses on the harm caused to the victim’s vagina. Medhātithi suggests that one possible motivation for such an act is jealousy towards the victim’s appearance (rūpa) and other qualities.
In the following verse (8.370), a woman does the same thing to a kanyā. Why is it always a kanyā who feels offended in both cases? Sarvajñanārāyaṇa (8.369) explains: If there is a noticeable physical change in the vagina, there would be a strong suspicion of sexual intercourse, which would prevent her from marrying another man. And this ‘penalty’ is not for homosexual sex, as confirmed by the verses before 8.369,
If a man arrogantly violates a virgin by force, two of his fingers should be cut off immediately, and he should also be fined 600 (8.367). A man of equal status who defiles a willing girl shall not be subject to the cutting of his fingers, but he should be compelled to pay a fine of 200 to deter repetition (8.368).
“Homosexuality is unnatural”
Now I will try to deal with the claim that homosexuality is unnatural. Firstly, it is clear from above and texts from other religions that homosexuality, though sometimes condemned, did exist in societies around a thousand years ago. If it weren't so, it is highly unlikely that any scripture of any religion would’ve mentioned it and either condoned or condemned it.
Now, let us look at nature as the claim is homosexuality is unnatural. Bagemihl [4] says homosexuality can be observed in over 450 species of animals worldwide. Multiple animals, even animals closely related to humans like Bonobos, show homosexual behaviour. There are heaps of scientific studies concluding that homosexuality is very much natural.
The philosophical aspect
All forms of self-identification (ahaṁkāra) are delusive and productive of suffering (duḥkha). So all self-identification with any vyahavārika property is a fundamental cognitive misapprehension (avidyā) and is the core ādhyātmika problem.
Every identity we choose for ourselves has two polarities, attraction (rāga) and repulsion (dveṣa). People are attracted to people, activities and things that support and validate their identity (ahaṁkāra) and are opposed to those who reject them. These two polarities then produce discontent (duḥkha).
When we no longer identify ourselves with our body, mind, and intellect, distinctions such as varṇa, jāti, liṅga, etc., cease to exist. The āstika śāstras have long recognized that the identification of oneself with the body, both subtle and gross, is false. Sexuality is also a characteristic of the body, mind and intellect, not the self. Ideally, one should relinquish identification with any gender or sexuality, without replacing it with another. Each identification leads to different actions. This paves the way for the ultimate goal of sanātana dharma, which is mukti, attaining liberation by realizing one’s true nature as the ātman/self, beyond any attributes such as gender or sexuality.
Bibliography
[1] Supriya Chakraborty & Abhay Dang v. Union of India thr. Its Secretary, Ministry of Law and Justice & other connected cases, W.P.© No. 1011 of 2022.
[2] Olivelle, S., Olivelle, P. (2005). Manu’s code of law: a critical edition and translation of the Mānava-Dharmaśāstra. India: Oxford University Press, USA.
[3] Hindu Law: A New History of Dharmaśāstra. (2018). India: Oxford University Press. (p. 315)
[4] Bagemihl, B. (1999). Biological Exuberance: Animal Homosexuality and Natural Diversity. United States: St. Martin’s Publishing Group.
