Section 377 being debated about much today is an article in the Indian Penal Code, IPC. It is all about what constitutes permitted sexual act in humans. The debate is whether this act should continue.
What has been the ethos of India with regards to this subject that goes beyond sex between a man and a woman?
Delving into the Samskrt language, we find a word Napumsaka. Pumsa means male. There is infact a mantra/ritual called Pumsavana performed in early conception for avana, i.e. to wish, hasten, a pumsa, male progeny. Pumsa denotes the spirit of being a man, masculinity.
Here we see the specific word Napumsaka meaning, “not pumsa”, those who are not fully male either by body or in character, in other words transgenders.
We also come across another word Samalingakamin, meaning those who desire the same gender, in other words homosexuals.
The fact that these words exist implies that such people existed too. If such people existed, then their practices of sex and other aspects would have existed too. Acknowledging them, also acknowledges their lifestyle.
While most languages in their usage have only 2 genders, one comes across 3 genders in prayoga, usage, in Samskrt and other Indian languages. So, it was an accepted fact in the Indian ethos, that besides the two genders, male and female, a 3rd division also exists in reality.
Transgenders were therefore accepted as a 3rd form of humans as Nature expresses itself in many forms.
The 3rd gender have been referred to in India by diff names – Eunuchs in English, Hijara in Hindi, Urdu, Persian, Arabic languages, Jogappa in Kannada, Aravani, Ali or Thirunangai in Tamil. Nangai means womanly and Thiru is an honorific title given to males. Thirunangai means male and female in one body. This word for the transgenders in Tamil Nadu implies that they are not looked down upon.
When did this scenario change in India?
In 1870, the Indian Penal code (IPC) was formulated by the British administrators. In article 377 of the IPC, non heterosexual sex between male and female humans has been classified as “unnatural” and punishable upto a period of 10 years in jail.
Why was it classified as “unnatural”?
In 1870s, it was the Victorian puritan view that was prevalent in medieval Europe. That view was imposed on India through this section 377.
But since then, in the last 140 years, Europe and England have moved on in thought and practice, whereas India has been stuck with an outdated, alien law section – alien to the views of this land, alien to the jurisprudence of this land.
The origins of this thought in England and medieval Europe comes from the Biblical incident of Sodom and Gomorrah wherein it is expressed that the city of Sodom was burnt down by a fiery shower because some of its residents had indulged in homosexual acts.
It is from the name of this Biblical town Sodom that certain types of sexual acts are now called sodomy.
Modern science and analysis have proved that there was a meteor strike in the Alps mountains over 3000 years ago. Rebounding of the meteor parts as they hit the Alps, caused a spray of molten rocks on Sodom. This astral event has now been scientifically analyzed and explained with specific dates. In the wake of this analysis, to link the fiery shower to the act of sodomy of a few in Sodom makes it irrational, unscientific.
We need to now move ahead shedding behind the unscientific as well as Victorian views.
The issue concerning 377 can be viewed at from different perspectives.
It is a bodily fact that a person is born as a transgender. It cannot be expressed as a bodily defect. Mutations are a process by which evolutions evolve.
In the bodily realm, besides the physically noticeable bodily differences, what is physically not seen but is equally potent are the effects of hormone play in a person. The play of hormones is not limited to the stage of puberty but continues through the life. Imbalances in these can give rise to such situations in a person.
The other factor is the mind play. We all know that mind can play a substantial role in determining tastes, preferences, attitude in all aspects including sex.
While the case of physical body variations gives to transgenders, the other cases of hormonal and mental influences tend to take the preference towards homosexuality (gay or lesbian or bisexual).
In modern parlance the homosexuals, transgenders and transvestites have all been brought under the broad term LGBT – Lesbian Gay Bisexual Transgenders, to distinguish them as a community different from the heterosexual community.
Fundamentally it denotes a sexual minority of people who vary from a stereotype male or female in their physical body parts, physique, physiology, psychology or preferences. It is a variance that reveals itself in their choice of partners for sex and life.
While the heterosexuals look at LGBT as a deviance, the LGBT community which over the last few decades have found a global voice, express in loud and clear terms, that it is not a deviance but another way of thinking where there is no harm done to other members of the society.
In the traditional Indian view also the personal preferences of LGBT were acknowledged. They also realized that the LGBT community were not harmful to society and were allowed to live their lives as per their preferences quietly. People from the LGBT community were given their lawful share, stake, pangu of village resources. They also figured among the rightful pangudhars, stakeholders in the village.
India had devised its own way of dealing with this community. The LGBT formed cults of their own and intermingled within themselves without intruding on the lifestyle of the rest of the heterosexual society.
The Kama Sutra also contains mention that homosexuality is something that is enjoyed by its practitioners. Narada Samhita, Manusmriti and a whole host of other texts acknowledge the existence of such people and their personal preferences. In a few temples there are sculptures of not just heterosexual couples but of homosexual couples as well. These are strewn all over the land and have been sculpted through the ages.
Literature and art thus showcase existence of homosexuality in ancient India.
These highlight that while heterosexuality is needed for procreation, homosexuality is seen to have been practiced by a minority few, purely for pleasure and solace.
This distinction can be seen in depictions even while dealing with concepts, principles, Tattva.
Everything in Nature including divine forces was attributed a gender – masculine, feminine or neuter. There are stories of two masculine divinities, Tattva, Hari and Hara, coming together for a purpose – to bring forth Ayyappa, another divinity with their combined qualities, principles.
But here too, inorder to depict the concept of procreation, Hari or Vishnu principle takes the female form of Mohini, as the legend goes. The divinity Ayyappa however is commonly referred to only as HariHara Putra, meaning son of Hari and Hara.
There is another very interesting story in the Mahabharata legend. Where there is a dialogue between Yudhishtra and Bhishma. Bhishma is on his deathbed, on a bed of arrows. This dialogue takes place in the month of January 3066 BCE. Yudhishtra asks Bhishma as to, in sex, who enjoys more – man or woman. Bhishma then narrates the story of a king of a bygone era who had got converted into a woman, lady. In that king’s opinion, it was the woman who enjoyed the sexual act more.
What this brings out is that there were incidents where people of yore did consider changing their gender to enjoy the sexual act.
What is even more interesting is that such a topic was discussed between two men of high esteem, separated by two generations, such as Yudhishtra and his grand uncle Bhishma, on a solemn occasion when Bhishma was on his deathbed. Even on such an occasion, it was not out of the norm to discuss such a matter.
This tells us of the openness with which this subject was discussed.
As the heterosexual community does not make a big noise about their sexual preference, the LGBT community also did not, about theirs. It is only when one group tries to look down upon the other and intrude through laws and punishments, on the other’s right to live their lives as per their choice, do such issues come to the fore and seem larger than life.
In conclusion, the Indian ethos has been an open one where issues of sex, gender and LGBT have been given their due place in discussion and freedom of choice. We too, this day, should discuss and come up with laws that are in tune with the times, with the nature of this land and Nature “herself” to address this issue which perhaps is as timeless as the origins of man and woman.