Buddhism, Law, and Governance in Sri Lanka: Ethics Must Guide the State: Continue Penal Code 365/365A

 

Sri Lanka, is a nation morally anchored in the teachings of the Buddha. From the Constitution to the Penal Code though the latter is colonial, Sri Lanka’s legal foundations echo Buddhist ethical values such as non-harming, truth, justice, and restraint. These Buddhist values shape law, governance, and public accountability. How this applies to the present attempts to repeal Sections 365 and 365A of the Penal Code — colonial laws used to criminalize same-sex relations which were amended & strengthened in 1995 & 2006 making 365/365A a modernized penal code which however, cannot shirk its links to Buddhist jurisprudence embedded in Article 9 & Article 16 of Sri Lanka’s Constitution.

 

Buddha’s Teachings: The Moral Blueprint for Governance

 

Buddhism, particularly in the Theravāda tradition practiced in Sri Lanka, sets out clear ethical principles for personal and public life. For rulers and officials, the Buddha articulated the Dasa Rāja Dharma — Ten Duties of a Righteous Ruler. These served as religious guidance & a moral standard for politicians, public servants & law makers. How many actually govern as per these duties today? Is it not the failure to follow these righteous duties that is reason for the decline in morals & ethics at all levels today?

 

Buddhist Ethics in the Law: Reflected in the Penal Code

While Sri Lanka’s Penal Code (1883) is based on British colonial law, it mirrors many Buddhist precepts, including:

 

Buddhist Precept	Penal Code Equivalent
No killing	294–298 (Murder, homicide)
No stealing	366–399 (Theft, robbery)
No sexual misconduct	363–365A,B (Rape, abuse, gross indecency, exploitation)
No lying or defamation	190–198, 500–504
No intoxicants (social order)	Excise Ordinance, Motor Traffic Act, etc.
Moral living	365/365A against unnatural offences & gross indecency

 

Sections 365 and 365A – Against Unnatural Offences & Gross Indecency

 

Buddhist Principle:

• TheThird Precept (Kāmesu micchācāra) urges abstinence from sexual misconduct. This includes unnatural sexual acts, which ancient Buddhist commentaries (like Visuddhimagga) interpret to include same-sex acts, anal sex, and other forms of indulgent sexual behavior that defy nature.

 

Penal Code Alignment: Sections 365 and 365A criminalize:

• Carnal intercourse against the order of nature.
• Acts of gross indecency, particularly same-sex acts.

 

Moral Basis:

• These laws mirror theBuddhist view that sexuality should be restrained, natural, and directed toward moral purposes—not craving or indulgence.

 

Section 363 – Rape

 

Buddhist Principle:

• Sexual exploitation or forced intercourse is considered a severe form ofsexual misconduct. The Buddha emphasized consensual and moral sexual relations, bound within ethical limits.

 

Penal Code Alignment:

• Section 363 criminalizesnon-consensual sexual activity, which protects women and children and upholds saddhamma (righteous conduct).

 

Sections 364 & 364A – Statutory Rape and Incest

 

Buddhist Principle:

• The Buddha severely condemned exploitation, particularly of the vulnerable (e.g., children, relatives). These acts violateboth moral precepts and karmic laws.

 

Penal Code Alignment:

• These sections protect family purity and prohibit immoral relations—preserving social and familialorder, which is a Buddhist value.

 

Sections 291A & 291B – Insult to Religion

 

Buddhist Principle:

• Buddhism promotestolerance, but also respect for religious sanctity. Promoting acts that undermine Buddhism or insult its doctrines (e.g., by mocking morality or sacred teachings) is a form of adhamma.

 

Penal Code Alignment:

• These sections prohibit deliberate insult or disturbance to religious feelings—helping protect theBuddha Sāsana from moral erosion.

 

Sections 365B & 286 – Grave Sexual Abuse & Indecent Exposure

 

Buddhist Principle:

• The Buddha upheldmodesty, restraint, and protection of others from harm. Public indecency, sexual abuse, or moral corruption breaks the foundation of right conduct (sammā-kammanta).

 

Penal Code Alignment:

• These laws restrict public immorality and abuse, in line with Buddhistethical restraint.
• These laws aim to prevent harm, uphold justice, and preserve public decency— all key Buddhist principles.

 

The Controversy: Sections 365 & 365A

 

What do these laws say?

 

• Section 365: Criminalizes “carnal intercourse against the order of nature” — a phrase historically used on same-sex relations (especially male-male anal sex).These committed on children constitute a crime.
• Section 365A: Criminalizes “acts of gross indecency” between persons — in public or private.

 

Why is repeal being called for?

Human rights groups, handful of legal experts argue that these laws:

• Violate privacy and dignity of same-sex persons
• Are used to harass and blackmail LGBTQ+ citizens
• Are inconsistent with Sri Lanka’s obligations under international human rights law

 

What Does Buddhism Say About Same-Sex Relations?

 

For laypeople:

• Buddhism teaches restraint from sexual misconduct,
• What matters is whether a relationship is ethical, consensual, and respectful

 

Strongest Theravāda Argument Against Lay Same-Sex Relations

 

1. The Third Precept: Sexual Misconduct

 

Interpretation from the Commentaries:

The Visuddhimagga and other commentaries by Buddhaghosa classify sexual misconduct as:

• Adultery
• Coercive or deceitful sex
• Sex with underage or protected persons (e.g. those under guardianship)
• Sex that leads to social disorderor violates norms

 

Same-sex relations are “micchācāra” (misconduct) as they violate:

• Violate social norms
• Are non-procreative
• often frowned upon culturally in ancient Buddhist societies

 

Sources:

• Visuddhimagga(Path of Purification) by Buddhaghosa
• Aṅguttara Nikāya 5.87– discusses five types of misconduct, including sexual, though not homosexual per se

 

Jātaka Tales and Cultural Attitudes

Several Jātaka tales (e.g., Kāma Jātaka, Sama Jātaka) refer to ideal lay conduct including heterosexual marriage, family duty, and procreation. This has been used traditionally to imply that same-sex unions are outside Buddhist lay ideals.

 

Reference:

• Jātaka Tales– moral narratives shaping lay conduct
• Cultural interpretations embedded in Sinhalese and Buddhism

 

Anumāna from Monastic Discipline

The strict prohibitions against same-sex acts in the Vinaya show that the Buddha viewed non-heteronormative conduct as spiritually regressive, and that such principles should also inspire lay morality since the final destination for both laypersons & theros is Nirvana.

 

Traditional Theravāda Societal Codes

In Theravāda-majority countries (Sri Lanka, Myanmar, Thailand):

• Traditional temple teachingsand village ethics have historically condemned homosexuality as “misconduct.”
• Monks often advised against it from a moral puritystandpoint

 

Examples:

• Writings by Myanmar’s Sayadaws and Sri Lankan forest monks
• Local Banasermons transmitted through oral tradition

 

For monks:

In the Theravāda Vinaya, any form of sexual intercourse, whether with a woman, man, or non-binary individual, constitutes a Pārājika offense (the gravest of monastic sins), leading to:

• Immediate expulsion from the monastic Sangha
• Permanent loss of monkhood
• No opportunity for reinstatement

 

This applies regardless of gender, and is uniformly strict (Bhikkhus & Bhikkhunis)

 

Citation:

• Vinaya Piṭaka – Pārājika 1 (Sexual Intercourse)
• Reference: Bhikkhu Pātimokkha Rules

 

Rejection of Paṇḍakas from Ordination

Theravāda texts also bar “paṇḍakas” (interpreted traditionally to include effeminate men, homosexuals, and other gender non-conforming individuals) from ordination.

 

This reflects:

• A concern that such individuals would disrupt celibacy and discipline.
• A traditional belief that they are “sexually deviant” or “unfit” for monastic life.

 

Citation:

• Cullavagga V, Vinaya Piṭaka (Theravāda Canon)
• Contemporary Analysis: The Conversation, “Traditional Buddhist teachings exclude LGBTQ people…”

 

The Buddha’s View of Marriage: A Moral Union Between Man and Woman

The Buddha acknowledged it as a natural institution within lay life, meant to uphold social stability, virtue, and mutual respect. His guidance, especially in the Sigalovada Sutta (DN 31), explicitly refers to the marriage bond between a man and a woman, outlining distinct duties for each. These are not arbitrary roles—they reflect the natural order (Dhammaniyāma), essential to personal discipline and societal balance.

 

Male-Female Complementarity in Marriage (Sigalovada Sutta):

The husband is expected to:

• Honor his wife
• Be faithful
• Provide for her
• Share authority
• Treat her with respect

The wife is expected to:

• Be faithful
• Manage household duties
• Welcome relatives
• Protect family wealth
• Be industrious and wise

This framework clearly assumes biological and moral complementarity—a male and a female, fulfilling natural and ethical roles that support not only each other but the wider family and community.

 

Why This Opposes Same-Sex Unions:

 

Moral Disruption:

Same-sex relations lack the complementary moral duties and natural alignment outlined by the Buddha. There is no Dhamma-based precedent for redefining marriage around desire, identity, or preference.

 

Violation of Sīla (Moral Discipline):
The Third Precept—to abstain from sexual misconduct—demands that sexuality be morally restrained, purposeful, and in harmony with Dhamma. Same-sex acts, driven by sensual craving (kāma-taṇhā), are incompatible with this path.

 

No Procreative or Generational Role:
Buddhist marriage supports stewardship of life—protecting and nurturing future generations. Same-sex unions cannot fulfill this role and therefore depart from the moral utility of marriage.

 

Social Confusion:
Promoting same-sex “marriage” undercuts the Buddha’s clear roles for husband and wife and invites moral ambiguity, not the clarity the Dhamma offers.

 

The Buddha’s teachings on marriage provide a moral, natural, and disciplined framework—clearly designed for a union between man and woman. This sacred structure, rooted in duty and self-restraint, is incompatible with the promotion of same-sex relationships. Buddhist society must therefore defend the sanctity of this moral model and resist attempts to redefine it through ideologies alien to the Dhamma. To reach Nirvana, laypersons must cultivate right conduct—not celebrate cravings disguised as rights.

 

Theravāda Buddhism upholds moral discipline (sīla) as the essential foundation for any practitioner aspiring toward Nirvana. The Buddha emphasized the importance of right conduct, self-restraint, and ethical living—not only to avoid karmic consequences but to purify the mind for higher spiritual progress. Therefore, under Theravāda doctrine and cultural application, same-sex conduct is neither spiritually beneficial nor morally justifiable—and should be discouraged for both laypersons and monastics.

 

The Constitution: A Legal Duty to Uphold Buddhism and Justice

 

Article 9:

“The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana…”

This makes it a constitutional duty for the government to protect Buddhist values.

 

Articles 27–28:

• Require the State to establish a just, moral, and equitable society
• Public servants must respect human dignity and preserve public trust

 

Government, Politicians, and Public Servants: Bound by Law and Morality

 

Public officials are entrusted with both:

• Legal power— under the Constitution and Penal Code
• Moral responsibility— under the values of the Dhamma

 

They must:

• Act with honesty and restraint(Ājjava, Tapa)
• Avoid corruption and abuse (Pariccāga)
• Promote justice and tolerance(Avirodhana, Khanti)

Sri Lanka is a civilizational trust grounded in the Dhamma. The Buddha did not speak of rights divorced from duties, or liberty without restraint. He spoke of discipline, morality, and self-control as the foundation of personal freedom and national harmony.

To repeal Sections 365 and 365A in the name of “rights” is to violate the moral and legal duty of the State to protect the Buddha Sāsana, as mandated by Article 9 of the Constitution. It is to substitute discipline with desire, ethics with ideology, and Dhamma with imported dogma.

Let us be clear:

This is not about hatred — Buddhism teaches karuṇā (compassion) and mettā (loving-kindness).

But true compassion does not celebrate craving (taṇhā); it guides individuals away from it.

True tolerance is not silence in the face of adhamma (immorality), but active defense of what is right.

Same-sex acts and ideologies that normalize them contradict the Third Precept, disrupt natural family roles, and undermine the moral clarity provided in texts like the Sigalovada Sutta and the Vinaya Piṭaka.

 

Upholding 365/365A is not about punishing people — it is about preserving the moral spine of a Buddhist nation.

 

The State has a choice: It can stand with the Dhamma, uphold the Constitution, and protect the moral foundations of society.

Or it can capitulate to foreign-funded agendas, strip the law of its ethical core, and plunge the next generation into confusion, hedonism, and social decay.

 

Let this be a call to every citizen, monk, official, and leader:

To protect Sri Lanka is to protect its moral order.
To protect its moral order is to defend the Buddha Sāsana.
To defend the Buddha Sāsana is to defend all beings from suffering.

Reject the repeal of Sections 365 and 365A.
Not out of hate — but to uphold truth, dignity, and Dharma.

 

 

 

 

Shenali Waduge