Reading `Hindu' as 'Indian', and vice versa, denies the reality of the
sub-continent's civilizational and intellectual history. The dominance of non-
Brahmanical Buddhist principles and practice for at least three centuries is
inextricably linked with our socio-cultural practice. Further, the long history
of exchange with other religio-cultural traditions like Islam and christianity,
has contributed integrally to our culture. The 19th C use of the word `hindu'
to refer to Brahminism, and then to conflate this with the term `Indian' is a
British colonial construct, i.e. a part of the Macaulayian legacy you so
rightly reject.
Are alternative personal, social, cultural and sexual options to be `ignored'
as 'not worthy of public discussion' because they are in your so-called
majoritarian, mainstream viewpoint, `marginal'? This fundamentally undemocratic
perspective can never countenance reform or change, which by definition arises
in opposition to prevalent mainstream ideas.
Patriarchy was certainly the dominant form extolled in the ramayana, in
Brahmanical texts and in other traditions over centuries; however, it cannot be
ignored that the sufi and bhakti traditions were a major form of popular
opposition to it. Uncritically upholding patriarchal norms of moral conduct in
this day and age reveals a closed mindset.
The discourse of rights for Gays etc., is a contemporary discourse and requires
both an openness and a focus that the above positions deny in principal. The
discourse is one of equal rights, freedom of choice and expression of one's
life, on the one hand and on the other, the nature of contemporary law and what
it defines as criminality, in providing legal protection of these rights. The
`closet' approach that you adovocate as being the Hindu approach - i wont go
into the merits of that claim! - seeks to silence rather than engage with
diversity in order to understand that the so called `other' is in fact `one of
us' with similar rights and concerns.
Madhu Prasad
To my mind, there are two major areas of concern in the present communication
and which are as follows:
Firstly, what is the philosophy and purpose of the Indian Law?
Secondly, how does one address the divergence between law and practice?
We have to understand that the purpose and philosophy of the Indian law is to
modernise the Indian tradition. While a modernising India decided not to part
with the humanist aspects of tradition, namely upholding family ties,
celebrating the purity of certain emotional relationships and so on, what it
really attacked was the various forms of unfreedom that did not allow
individuals to fully utilize their talents and rights as individuals.
Were it not for our pursuit of modernity, women would still be burnt as Sati,
untouchables would be beaten up by sticks and lower castes would not be allowed
entry into public spaces. That still happens in India but it happens without
the sanction of the law and are thus illegitimate. In traditional India such
things would have been legitimate but in today's India, these are illegal.
The idea of law in India is meant to provide freedom to individuals
irrespective of their caste, creed and community. Hence, matters that arise out
of choice of individuals are to be free of the law. This is the sole point
where the Indian law differs from the Western law because the latter is a
disciplining and a normalizing effort that draws from a disciplinarian and
often fundamentalist Christian Churches.
Homosexuality is therefore free from law in India if it is between two
consenting adults.
But it does not have the sanction to have the same institutional sanctity of a
normal marriage. To my mind, it is the latter that the Delhi High Court
Ruling has failed to challenge and I wish that it should be challenged.
Susmita Dasgupta
Economic Research Unit
