Indic View on Homosexual Marriages: A Policy-Legal Brief

Sathyajith MS

Junior Research Associate

AbhiGlobal Legal Research & Media LLP


This policy brief has been authored for IndicJIL Talk to examine the status of same-sex marriages in the view of Indic culture. It will include the study of determining the status of LGBTQ+ persons vis-a-vis the Dharmashastras, analysis of modern legislations governing marriages, and potential amendments, if any, which can be done to the existing legislations to ensure compatibility of same-sex marriages and Indic world view.


Introduction

There have been several discussions regarding the acceptability of LGBTQ+ community in the Indian society. These discussions have majorly employed a western lens to largely advocate that the LGBTQ+ community has been neglected and faced aversion in India. While there have been attempts by organizations such as Hindu American Foundation to demonstrate that the Indic worldview is largely acceptable of the LGBTQ+ community, it would still require a detailed understanding to have an understanding of the status quo and the need to decolonise policy making which still suffers from a colonial legacy. The process of decolonisation is happening at multi-fold levels. The traditional Indic worldview is being employed to advocate for certain changes in the way policies are made and also review of specific legislations as far as their compatibility with the Indic fold is concerned.

As far as the review of legislations affecting homosexuals are concerned, a petition was filed in the Delhi High Court seeking recognition of same-sex marriages under the Hindu Marriage Act, 1955 (2020). It is reported that the petition was filed after a couple were unable to register their marriage after solemnising it in a temple (Menon, 2020). The petition seeks to recognise the rights of LGBTQ+ persons under the Special Marriage Act, 1954 also.

In 2017, the Hon’ble Supreme Court in the case of Navtej Singh Johar v. Union of India (2018) decriminalized homosexuality. The Supreme Court had read down a part of Section 377 of Indian Penal Code, enacted by the British during the colonial period, which categorized homosexuality as ‘unnatural’ and criminalized the same.

However, it is to be noted that mere decriminalization of homosexuality does not necessarily provide legal recognition to marriage between homosexuals. This means that while homosexuality will not be treated as a crime under penal laws, it still does not validate a marriage between homosexuals. In India, personal laws governing marriage, maintenance, inheritance, adoption and guardianship are according to the identity with which a person identifies himself/herself. For example, it is the Muslim Personal Law which governs several aspects of Muslims in India.

Even though it has been decriminalized for civilians, it has been reported that homosexuality is not permissible in the Indian army. According to the report, the then Army Chief is quoted to have said, “We are neither modernised, nor westernised. LGBT issues are not acceptable to us” (Swarajya Staff, 2019).

Since the Supreme Court merely decriminalized homosexuality, which is a secular penal law, there is no legal framework which recognises any marital union between LGBTQ+ persons. While it is true that it may not be possible to recognise the same under personal laws of few religions since it is considered to be sinful (Gander, 2017). Notions of Victorian morality had penetrated to the process of law-making in the colonies disregarding the local customs and practices. While progressive thinking has penetrated the Abrahamic worldview, there are still elements of extreme orthodoxy which can be considered to be exclusionary and intolerant in nature. There are a few instances which may demonstrate the same. A notable Muslim Cleric held that homosexuality is against the order of nature and it would lead to moral decadence and disorder (Swarajya Staff, 2018). As a matter of record, The Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries were the main parties in the Supreme Court which opposed decriminalizing homosexuality (Chaturvedi, 2018).

It may be held that the Indic view has been different. It may be asserted that there is a potential room to accommodate any changes in law as far as personal laws with an Indic worldview are concerned.


Traditional Indic Worldview on LGBTQ+

The Indic worldview may be studied with reference to Srutis and Smritis primarily. This is due to the fact that they aid us to conceptualise the social structure and the practices which existed then. Since Srutis and Smritis are governed by a superior concept of Dharma, it would be relevant to study the same by holding Dharma as the grundnorm. Further, it would be necessary to look into the status and position of the LGBTQ+ community before proceeding to analyse the legal validation under the traditional Indic worldview.

The Srutis on LGBTQ+ Community

The Srutis, or more precisely the Vedas, are silent on the aspect relating to homosexuality. It neither opposes nor embraces homosexuality. The silence of the Srutis on the matter relating to homosexuality is probably the reason for a lack of consensus in the Indic fold regarding the issue. The Srutis do not address this issue or even social issues as a matter of fact (Voruganti, 2018).

However, a few commentators point to an alleged verse in the Rig Veda which reads as ‘Vikriti evam prakriti’ meaning “what seems unnatural can also be natural” (Rastogi, 2017). Some commentators have interpreted this particular verse to provide a principle-based and philosophical justification to homosexuality emanating from the Vedas. In contrast, the very existence of this verse in the Rig Veda has been questioned (Misra, 2020). The verse is claimed to exist in the Rig Veda by Stephen Hunt in an academic writing. However, no particular reference has been provided to indicate the source, or even the verse number for the purpose of authenticating such reference. The author attempted to find the aforementioned verse in English translation of Rig Veda (Griffith, 1896) (Hindu Online). However, no such verse or quotation could be found in the Rig Veda as it has been claimed.

While it is true that an inference could have been made that justified homosexuality directly from the authority of the Vedas, it would be contingent upon its existence. Since there is an ambiguity over the existence of the verse which is sought to validate the acceptance of homosexuality in the Vedic times, it would be reasonable to not infer anything regarding the issue as far as the Vedas are concerned. It would be prudent to consider the other sources of Hindu law and philosophy to ascertain the acceptance of homosexuality in Hinduism. However, it is also necessary to point that there is no evidence of homosexuality as a disqualification for attaining Moksha. The Hindu American Foundation policy brief states, “LGBT person who lives selflessly and has mastered his or her impulses (sexual or otherwise) is actually closer to moksha than a non-LGBT person who is a slave to desires. Hindus cannot point to anything in the sruti texts that supports treating LGBT persons as being inferior to non-LGBT persons, let alone support their persecution” (Hindu American Foundation, 2016).


Vedanta Philosophy and Gender Fluidity

Vedantic philosophy may be considered as one of the most authoritative sources in Hinduism since it comprehensively deals with various concepts of Hinduism. It also provides a principle-based justification to various concepts of Hinduism. As far as the concept of gender is concerned, it is viewed that the enunciation of concepts in Upanishads entirely support the concept of gender fluidity and view it as a spectrum (Merchant, 2014).

In order to demonstrate that gender fluidity can be ascertained from the Upanishads, there have been attempts to primarily describe the nature of God or Brahman, as provided. This in a way is considered to be a higher norm within which gender fluidity may be accommodated. The totality of the ultimate reality is beyond comprehension and much more complicated than it seems. Non-dualism or Advaita philosophy considers the soul and the Brahman to be one (Merchant, 2014). With the nexus between the Atman and Brahman enunciated by the sayings like Aham Brahmasmi (I am the Brahman) and Tat Tvam Asi (This is that), it is a logical inference that the nature of Atman and Brahman are the same. It follows that the Atman is the true identity of the individual, with the body being only a transient.

Since the Brahman cannot be limited to one particular gender and considered to be gender-neutral, it logically follows that the Atman cannot be ascribed to a particular gender as well (Merchant, 2014). The Atman is the true identity of the individual cannot be limited by the artificial constructions of the concept of gender. Rutvij Merchant notes, “This suggests that the binary of male and female is a constructed difference that arises in the temporal world, with no individual in reality being either completely male or female, thus implying that gender is a spectrum” (Merchant, 2014).

However, this understanding may not be accurate since certain aspects of human life are considered beyond the boundaries of the physical world. For instance, Moksha is attained by Atman, which is distinct from one’s physical body and personality (ego), as well as outer attributes such as race, caste, gender, and sexual orientation (Hindu American Foundation, 2016). It would not be prudent to point out the gender neutrality of the Brahman and Atman since it deals with a completely different aspect of life. Hence, it would seem logical not to conflate different concepts of Vedantic philosophy in an attempt to demonstrate the acceptance of homosexuality or gender fluidity in Hinduism.


Smritis and other texts

The Smritis contain socio-religious laws and customs which are limited by time, place, and circumstance (Hindu American Foundation, 2016). Some of the notable Smritis include the Manu Smriti and the Yajnavalkya Smriti. The Smritis are subject to change with the evolution of circumstances prevailing in society. As the acclaimed author Sanjeev Sanyal puts it, “[T]hink of Sruti as the underlying operating system and the Smritis as being apps. You can keep adding apps and changing apps on the same operating system” (Sanyal, 2016). This is to suggest that the Smritis can be altered, modified or even replaced with the changing circumstances.

The Smritis too have not advocated harsh punishments for homosexuality. Gurudev Sri Sri Ravi Shankar, Spiritual Leader has also explicitly stated that homosexuality is not a crime in Smritis. Hindu Academic Professor Arvind Sharma notes in his essay on Hinduism and Homosexuality “It appears from the foregoing account that, save for the emphasis on renunciation, Hinduism is a sex-positive religion in relation to all the other…ends of human life….” (Hindu American Foundation, 2016). Manu Smriti, which is often cited by scholars and academics to highlight the regressive practices in Hinduism also provides for ‘bathing with clothes on in public’ as a punishment.

It is said that other texts such as the Arthashastra and Kama Sutra mention LGBT persons in various professions who were not subjected to any kind of persecution (Hindu American Foundation, 2016). It is claimed that the Kama Sutra also mentions homosexual marriages based on “great attachment and complete faith in one another” (GALVA-108). It seems like the Srutis and Smritis have largely been nonchalant to the LGBT community. Rather, it is said that the Arthashastra imposes a fine for publicly mocking and insulting the third-sex. An inference may also be drawn that this indifference highlights that the LGBT persons were not considered to be inferior as far as notions of equality are concerned.

There are other Smritis which are not as popular as the Manu Smriti which deal with homosexuality explicitly. Narada Smriti mentions 14 types of impotent men with women which includes mukhebhaga (who has oral sex with other men), the sevyaka (who is sexually enjoyed by other men) and the irshyaka (the voyeur who watches other men engaging in sex) (GALVA-108). In a similar way, the Sushruta Samhita too mentions five types of impotent men with women known as kilba. They are as follows: (GALVA-108)

● the asekya is the one who swallows the semen of other men;

● the saugandhika is the one who smells the genitals or pheromones of other men;

● the kumbhika is the one who takes the passive role in anal sex;