A five-judge Constitutional bench of the Supreme Court Thursday (6 September 2018) decriminalised Section 377 of the Indian Penal Code (IPC). Gay sex between consenting adults is now legal in India.

Section 377 of the Indian Penal Code is a colonial law dating back to 1860 that punishes sexual conduct “against the order of nature” with up to life imprisonment. In 2013, the Indian Supreme Court reversed an earlier Delhi High Court decision that had held Section 377 to be unconstitutional on the grounds that this was a matter for the people and their elected representatives, not the courts. At that time, some leaders associated with the Sangh Parivar saw homosexuality to be against Indian culture. What we have here, in reality, is a case where supposed defenders of Indian culture, and presumably Hinduism as well, from “Western influence” are not only wrong, but seem to be the ones acting under the very influence they seek to protect against.

Let’s settle the obvious first. Section 377 is a product of Victorian social mores. A Human Rights Watch (HRW) report titled “This Alien Legacy” describes how laws in over three dozen countries, from India to Uganda and Nigeria to Papua New Guinea, derive from a single law on homosexual conduct that the British colonial rulers imposed on India in 1860. The report demonstrates that the British saw conquered cultures as morally lax on sexuality. British viceroy Lord Elgin warned that British soldiers could succumb to “replicas of Sodom and Gomorrah” as they acquired the “special Oriental vices.”

“Colonial legislators and jurists introduced such laws with no debates or cultural consultations, to support colonial control,” the report says. “They believed laws could inculcate European morality into resistant masses. They brought in the legislation, in fact, because they thought “native” cultures did not punish “perverse” sex enough. The colonised needed compulsory re-education in sexual mores. Imperial rulers held that, as long as they sweltered through the promiscuous proximities of settler societies, “native” viciousness and “white” virtue had to be segregated: the latter praised and protected, the former policed and kept subjected.”

British leaders of the Victorian era acted against homosexual conduct based on their understanding of the famous Biblical story of Sodom and Gomorrah or the book of Leviticus that homosexuals were, simply by virtue of that conduct, denied entry into heaven. Moreover, according to the HRW report, notions of polluting sex from which sodomy laws were derived, “traced to an old strain of Christian theology that held sexual pleasure itself to be contaminating, tolerable only to the degree that it furthered reproduction (specifically, of Christians).”

What does Hinduism have to say on all of this? We at the Hindu American Foundation (HAF) believe that a genuine Hindu approach to this matter, just as on any social issue, must not only turn to but draw on the distinction between srutis (scriptures like the Vedas and Upanishads that enunciate eternal truths) and smritis (those that detail social laws and practices bound by time, place, and circumstance like the Manu Smriti and Yagnavalkya Smriti). Smritis are time-bound and subject to change, and such bifurcation, which is unique to Hinduism, underpins HAF’s approach to LGBT rights.

Hindu sruti texts don’t address sexual orientation at all or indeed social issues in general. They state that every being is an eternal soul, or atman, incarnate and that the ultimate goal of life is not heaven, but rather moksha – freedom from the cycle of birth and death. Moksha is attained by one’s real self, or 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.

Progress towards moksha comes through yogic spiritual practices, and the attainment of moksha implies transcending material desires and impulses, including sexual ones. To put it provocatively, an LGBT person who 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. Thus, unlike in other faiths, Hindus cannot point to anything in the sruti texts that supports treating LGBT persons as being inferior to non-LGBT persons, let alone supports their persecution.

The smritis, which are said to have laid down social laws historically, have imbibed the perspective of the srutis and have never advocated broad-based, harsh punishments for homosexuality. Professor Arvind Sharma, a Hindu academic at McGill University in Montreal, Canada, states in his essay on Homosexuality and Hinduism*: “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) three ends of human life – dharma, artha, kama…”

The Manu Smriti, to quote a favourite bugbear of many, does express mild opposition to the practice, but prescribes such quixotic punishments as bathing in public with your clothes on! (Manu Smriti, 11:75) The most stringent punishment, that of cutting off two fingers (or shaving the head and riding a donkey), is prescribed for an older woman who has had a relationship with a young virgin (ibid, 8:370). But the concern here is on virginity, not homosexuality. For the exact same, punishment of cutting off two fingers (plus a fine of 600 panas of gold) is prescribed for a man who violates a virgin woman just a few verses earlier (ibid, 8:367). And there is no such punishment in the case of two older women.

Thus, not only do the srutis lay absolutely no bar on moksha for LGBT persons, the codes of conduct of ancient India seem to have largely ignored the LGBT phenomenon rather than persecute them. Professor Arvind Sharma also points out that if traditional Balinese culture is taken to represent an older and at least a trans-Indian form of Hinduism, the Hindu attitude to homosexuality is one of mild amusement bordering on indifference. The Hindu epics mention several characters who demonstrate a range of sexual orientations and gender identities, including Shikhandi, Chitrangada (wife of Arjuna and mother of Babruvahana), and Brihannala from the Mahabharata. None of these characters are discriminated against because of sexual orientation or gender identity. Rather, they are all treated with respect and judged by their abilities rather than their sexuality.

The Arthashastra and the Kama Sutra have numerous mentions of LGBT individuals in various professions free from any persecution. And the stories of Ardhanareeshwara (Shiva as half man, half woman) and Lord Ayyappa (born to Shiva and Vishnu as Mohini) indicate the subtle approach that Hinduism adopts towards matters of gender.

Given all this, a Hindu approach towards LGBT issues in India would argue for scrapping Section 377. (As on 6 September 2018, the law stands scrapped, as stated in a verdict by the Supreme Court.) The wisdom of the old Hindu attitude can be seen when one reflects on the consequences of calling all LGBT persons “criminals.” The law relegates some people to inferior status based solely on how they look or who they love, invades their privacy, and degrades their dignity. It provides ample opportunity for political vendetta by other means as it can be used to discredit enemies, destroy lives, and provide a police force that is already perceived to be corrupt with a powerful tool to abuse innocent people. It also drives LGBT persons to live their life “underground.”

The transition to full marriage equality in India is likely to be a long process. America’s move to full marriage equality for LGBT persons came after a public struggle of over 30 years. It was also preceded by the notion of “civil unions” in which many states accorded most secular benefits to LGBT couples, although not the religious sacrament of marriage. Civil unions could be an intermediate step in India as well, as it would help address several issues which have no religious basis by themselves. This includes employment benefits for LGBT partners, differences in tax and insurance rates, protection against discrimination in employment, housing, hotels, hospital visitations, property inheritance, and so on. HAF supported marriage equality for all Americans, and we submitted amicus briefs in various US courts, including the US Supreme Court, to this end.

But what about marriage equality for LGBT Hindus? It must be emphasised that India actually has a long history of wedding rites for hijras, who are transgender people. And in recent years, some Hindu priests and same-sex couples in the US have adapted and found acceptance in traditional Hindu wedding rituals, especially in the saptapadi, a key marriage ritual that enunciates seven vows of an ideal Hindu marriage. The vows remind every couple about the true purpose of a life partnership: (i) nourishing one another (ii) growing strong together (iii) fulfilling spiritual obligations (iv) working towards happiness and fulfilment through mutual respect (v) working for the welfare of all living beings through raising virtuous children (vi) praying for bountiful seasons which they may go through together, just as they would share their joys and sorrows, and (vii) praying for a life of understanding, loyalty, and companionship not only for themselves, but also for universal peace.

Like other legal rights, the right to marriage may compete with the right to religious freedom. Sampradayas, temples, religious leaders, and priests thus have an inalienable right to define marriage in conformity with their traditions, as they continue to interpret and reinterpret them over time. And because Hinduism has no central authority that controls theology, different groups are free to move as fast or slow as they desire on the religious front. So while religious rites of same-sex marriage continue to evolve (and in many cases, not), governments (at least in the US and several other nations around the world) no longer discriminate in the matter of marriage as a legal right or social contract. We believe that this concept – namely that there remain freedom in the realm of religion to define and/or adapt the definition of marriage, but that governments should no longer discriminate and hold some marriages to be legal but not others – is an important nuance that is rarely articulated in Indian public discourse. It also becomes especially relevant given the magnificent diversity of cultural practices within India and the lack of a uniform civil code in the country.

So, HAF suggests that the following should be key considerations: One, we need to work with the scientific and medical conclusions that LGBT orientations occur naturally in a small percentage of most life forms. These are not acquired habits, and certainly not a disorder, handicap, or “disease to be cured.” Two, Hindu teachings hold the inherent spiritual equality of all beings, regardless of outer attributes. As such, Hindus should not reject or socially ostracise LGBT individuals, but should accept them as fellow sojourners on the path to moksha. Three, Hinduism has wisely separated the spiritual from the social and allows for the understanding and interpretation of customs to change over time. Various historical smritis are testament to such changes, and even in ancient times, smritis never advocated broad-based, harsh punishments for homosexuality.

At HAF, we believe that it is important for Hindu leaders, both religious and otherwise, to work within our sruti/smriti framework to evolve a uniquely Hindu perspective on LGBT rights rather than follow existing social mores in India which are profoundly influenced by non-Indic sensitivities. Colonialism left India decades ago. It’s high time Indians let its social and psychological hold go as well.

An earlier version of this piece was published on 4 July 2015 as ‘A Hindu approach to LGBT rights’.

Also Read: Section 377 Has Nothing To Do With Indian Culture