Author: S Gurumurthy
Publication: The Indian Express
Date: July 5, 2009
URL: http://www.expressbuzz.com/edition/print.aspx?artid=|h1DXfUW5DY=
Homosexuals displaced the Economic Survey for the year 2008-09 from the headlines
of most media on July 3, 2009. "Historic bench mark"; "Sexual
equality"; "Landmark Judgement". This is how the media had
headlined the Delhi High Court judgment holding Sec 377 of the Indian Penal
Code, which makes homosexual acts offences in law, partly unconstitutional.
Sec 377 of the Indian Penal Code was not Manu's code. It was Macaulay's. This
colonial law made homosexuality punishable. In Judo-Christian tradition, homosexuality
was seen an act against the law of God, punishable even with death. The Islamic
rules also prescribed capital punishment for the offence. In all Abrahamic
traditions, the hostility to homosexuality originated in the story associated
with a city as Sodom (the etymological source of the world 'sodomy') where
the sexual sin was first committed according to their texts, though the respective
accounts varied. This is the philosophy of the law against homosexuals in
Abrahamic societies. Macaulay's law reflected their theological position.
Earlier, there was no state law in India to punish homosexuality. Does that
mean that the Hindu - read Indian - tradition approved of homosexuality? Read
on.
What was the position of the state and state
enacted laws in India such matters? The king or the state in India had refrained
from handling most issues which the society or families could handle. It is
the colonial state, with its laws and courts, that began to intrude the sovereign
domain of the family and society. The Indian discipline was always built around
unenforced social and family norms; not state laws. Self-restraint and shyness
were the tools to regulate the deviants from the norms, not the police or
courts. Even today, it is this non-formal moral order - read dharma - not
the laws of parliament or state assemblies, that largely governs this society.
India is otherwise ungovernable; just some 12000 plus police stations in some
7 lakh towns and villages cannot regulate over 110 crore people. Thanks to
this moral order, the Indian society had handled, and even now handles, such
sensitive issues with great finesse than does state law. It is in stark contrast
to the gross state law and media discourse of today. Historian Devdutt Pattanaik
says that in Hindu literature 'though not part of the mainstream, the existence
of homosexuality was recognised, but, not approved'. Naradasmiriti prohibited
marriage of homosexual men with women. Manu did suggest mild punishments for
homos, but of an extreme type. The Indian tradition therefore neither encouraged
nor punished lesbians or gays; nor did it celebrate them or despise them.
It regarded them as a small, marginal fact of life, preferring to ignore them;
and treating them as not worthy of public discussion for or against that might
disturb the rest of the society.
Homosexuals are, in numbers, marginal even
in the West. In the US where the gay-lesbians are aggressive in the public
discourse, the 2000 US Census data reveals that only 0.42% households are
same-sex households. Studies in US or France and Canada show just some 1-2%
admit to be gays or lesbians. The deviation from the mainstream behaviour
is as marginal as that. Yet it is the geo-Christian hostility to even such
marginal groups that turns them into vociferous action groups in the West.
In the Indian - read Hindu - civilisational
ethos, humans had never been seen as belonging to one uniform behavioural
class. The Indian civilisation had recognised diversity in behaviour and morals.
It therefore never imposed one moral value or rule for all. But it believed
in a hierarchy of moral principles. It held out right conduct as ideal for
the rest to imbibe and follow, but on their own volition. Even as it had evolved
normative moral principles for the mainline society, it had subtly ignored,
rather than focus on or punish, the deviants. Those who could not follow an
ideal were never held as illustration for others to follow.
For example, the Indian society had evolved
one man-one wife as the ideal model for life, but never made it the law. It
had indeed celebrated monogamy; but had never prohibited or punished polygamy.
It did not even outlaw polyandry. Even today, regardless of the law, polygamy
prevails in different parts of India. Even polyandry exists in certain communities
in North India. It is neither proscribed nor accepted by others. But even
those who did not follow the ideal of monogamy never disputed its virtue;
nor did those who followed that virtue look down upon those who did not. Sri
Rama was monogamous, but his father, Dasharatha, was polygamous. Yet, Rama
revered him; obeyed him totally. Rama is therefore regarded, besides an ideal
being, an ideal son as well. But Prahlada defied his father; he is regarded
as an ideal person, though some may not see him as an ideal son like Rama.
Likewise, Sita obeyed her husband; but Meera defied hers; and yet both are
accepted as great. Obeying one's husband or one's father or being monogamous
was held as a high virtue. Even the more macro idea of "ahimsa paramo
dharma", namely non-violence as "the highest value", was regarded
as a virtue of those only who had
renounced the world; and not for householders and others. So the society was
ruled more by hierarchy of virtues and illustrative conduct than by law. What
is correct was never judged by how many people adhered to it; but how virtuous
it was and regarded by all as such.
Tolerance for the deviants from generally
accepted human conduct is part of the Indian ethos. Here, the society would
wisely ignore the marginal deviants rather than punish them, even discuss
them - a more subtle, sensible social management principle. The society felt,
even now feels, shy to discuss them. That is why the traditional religious
scholars have refused to be drawn into the current debate on the issue. In
the Indian tradition, homosexuals, as elsewhere, were thus regarded as deviants.
But, here, unlike in the Abrahamic, the right of these deviants to exist without
being punished was never denied; and will never be. Yet no one can argue here
or elsewhere that homosexuality is a virtue. No law or court of law can declare
it as a virtue. That is the crux of the debate; and that is what is being
obfuscated.
QED: The Delhi High Court ruling held only
one part of Sec 377 as unconstitutional. But what part is held constitutional
- that is, what act of homosexuality is still punishable - cannot be described
without allowing the discourse to become shameless; without spilling filth
in the discourse. So it is not being described as shamelessness should yield
to shyness. But, the media, particularly the visual, has been purveying needless
filth using the issue for quite some time now. And growing shamelessness is
replacing dignified shyness that marks the public discourse. Is it fair to
subject a shy society to a shameless debate?
- Gurumurthy is an economic and political
commentator. E-mail: comment@gurumurthy.net
