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?
is an economic and political
commentator. E-mail: firstname.lastname@example.org