A Reflection on Dilemmas: Considering Prof Jacques Vanderlinden and Prof Gordon Woodman’s reactions on

“Towards a Pluralist and Intercultural Approach to Law:

Tackling the Challenge of Women's Rights in India”

 

 

Nidhi Gupta

 

Doctoral Student

Catholic University, Brussels

Belgium

 

Department of College Education

Government of Rajasthan, Jaipur

India

 

I present my reply in continuation with that of Christoph. He has systematically replied to all the six “commentaries” of Dr. Vanderlinden, and I generally agree with Christoph’s viewpoint as expressed in his reactions. Therefore, to avoid repetition I will not adopt the same approach of separately considering, and weighting up, each of Dr. Vanderlinden’s points. Rather, I shall give a more general reaction to some of the fundamental issues raised by him concerning both our approach in the article, and the specific case of Mewar. Before proceeding, I would like to extend my sincere thanks to Prof Jacques Vanderlinden and Prof Gordon Woodman for their attention to this article, for raising interesting issues and for revealing certain flaws in the way of writing.

 

1. Case for Identity Crisis

 

Eberhard and Gupta: Young, enthusiastic crusaders in guise of anthropologists?

 

In line with the “personal” dimension introduced by Prof Vanderlinden into the present debate, and fruitfully taken up by Christoph as characteristic of the anthropological dia-logical method we advocated in our original article, I shall begin my comment from precisely that immediate, personal perspective. I have to admit that on my first reading of Dr. Vanderlinden’s six “commentaries”, his labelling of us as ‘crusaders’ and ‘partisans of some kind of radical activism’ - that is, as outsiders intending to interfere in other communities – generated in me a mixed feeling of surprise and disappointment.[1] Disappointment, first for being understood as an outsider to people of my country, and secondly for being understood as advocating interference, that too, as somebody belonging to the ‘new generation’ of ‘craftsmen’ (and “craftswomen”) trying ‘to resist the arrogance towards which they are being driven by (…) their will to foster change whenever facts of life are an insult to their vision of the world and certainly by their youthful enthusiasm’ (“commentary” 4). These remarks made me realise that perhaps I didn’t succeed in conveying what I wanted to throughout this article.

 

Surprise, on the other hand, because - according to my self-perception as a woman writing on issues concerning women - my approach felt already too moderate, i.e. too much in favour of traditions and traditional communities as compared to the huge mass of existing scholarship on the subject.[2] I say it was moderate because I have grown up under a constant exposure to discourses condemning the “backward” traditional, orthodox, and religious mentality of people in India which persisted in spite of numerous reform measures that were initiated from the British colonial period “onwards”. Along with this I also learnt that the persistence of such mentality need not be a cause of despair: for, it was argued, there is a hope that through education and also through economic development we will gradually achieve the eradication of practices based on religion or traditions, thus allowing India to find its way on path of progress. While my general surrounding atmosphere, both academic and non-academic, had already gone far to ensure I did not think otherwise, I received an overdose of such views on Indians’ mentality during my tenure in the Rajasthan State Commission on Women’s Rights. Here my full time employment (and this was really full time; I will not be exaggerating if I say that my immediate senior and I , we worked 24/7) was to think about generating social change, inter alia by identifying as many reasons as possible that could account for the women’s low status in the state of Rajasthan. Besides grabbing every opportunity to bring about change, we were further supposed to work overtime in order to invent explanations that justified the two years’ old existence of the Commission, and its perpetuation, in face of its inability to bring about enough change in the women’s situation in the state of Rajasthan, especially in the most “backward” sections of the society. Such explanation which we worked to construe would then be deployed as defense on the part of the Chairperson of the Commission vis-à-vis the press, people from NGO’s and other activist groups.

 

In spite of this constant indoctrination to be a crusader ready and equipped for interference, I myself was only favourable to intervention.[3] I had been able to maintain enough sympathy towards various traditions and the value of religion in our lives as Indians; therefore, I rather considered myself an ‘outsider’ to activist groups. Relative to this background, I presumed that the viewpoint I adopted in this article was quite moderate, especially with respect to issues concerning women. To my surprise I had to learn that, from an anthropological point of view, my approach was still too radical. (I realised this distinctly from these six “commentaries”, though Christoph had previously pointed that much during our discussions). I discovered, in sum, that I am an ‘outsider’ to the anthropological community, too, although I come from a region that is of interest to anthropologists.

 

In fact, I will accept that, to a large extent, Prof. Vanderlinden’s scepticism towards us as activists pretending to be anthropologists is justified, not so much in the case of Christoph, but definitely in mine. I was introduced into the domain of anthropology having received constant injections of ‘modernity’[4] aimed at causing genetic conversion[5] - my mindset was undeniably that of a budding crusader. I wanted to understand different communities and their way of organising life, but I conceived the task of understanding instrumentally: I was certain that there was much to change and regarded understanding only as one way – albeit a qualified one - to reach the goal of bringing about social change.[6]

 

I could hardly have become an anthropologist because in India – as in other countries – anthropology does not have an independent existence as a discipline, but instead lurks somewhere under the shadow of sociology. During my educational period I was never exposed to a discipline called anthropology.[7] Our official frame of reference for organising society - our colonial heritage - teaches us the values for organising society on the principles of equality and equal legal rights. As ‘educated people’ all we have to do is to learn to be tolerant, patient and devise ways to make society sooner or later fit into that ideal frame of reference. Moreover, anthropology has been a discipline that has helped in understanding ‘others’, not so much one’s own society. Recently there has been shift in perception, so that one (I) also can study one’s (my) own society as a way of doing anthropology.

 

But can I hope to reconcile the anthropological teachings with my pro-intervention mindset? In my doctoral research on Hindu family law, I am trying mostly to understand and not to challenge the authority of tradition and religion. Understanding I see now as an essential component of (not a mere means to) whatever “goal” the intervention might envisage. Still, all too often my research throws me in self-doubt. For all the existing scholarship, mostly by Indians but also by Western authors, makes me frequently believe that I am wasting too much time in understanding religion and traditions. Ultimately – it seems to be unanimously claimed by the texts - we have to make tradition and religion cede their authority, have to move towards secularism, in both public and private lives, preferably via education and using force only as ultima ratio.[8]

 

Can I, an Indian, ever be an Insider to India?

 

Prof. Vanderlinden has in his reply addressed me as an outsider to Saansi people, with whom, he assumes, I share only nationality. He has mentioned, ‘ I would include in the outside world anyone who would originally have been a member of such community, but whose education has acculturated her or him to another tribe, e.g. that shared by those who believe that they represent “modernity” as opposed to “tradition”’. He further writes, ‘ yet I would be most careful in entrusting to anyone who has been subjected to acculturation, especially if the acculturation is relatively recent, the task of interfering with their original tradition’ (“commentary” 4).

 

True, factually I cannot lay claim to sharing anything more than nationality with Saansi people or with Mewar or any such girl in particular. But Dr. Vanderlinden’s criteria of “outsider-ness” make me pose myself the question whether I can be considered an insider to any group of people in India, including my immediate family. It further leads me to think: is there any insider in India? For, if we were to accept these criteria of “outsider-ness”, I am afraid I would be a perpetual outsider, outsider to a vast and diverse range of communities in India (and, needless to say, beyond). With a very large majority I share nothing but nationality, and perhaps that commonality, too, is a colonial heritage, as those presenting India as a ‘political construct’ brought into existence with modernity aim at making us believe.[9] Being an outsider to everybody might be the price that we have to pay for belonging to a multi-cultural and extremely diverse country. But if that was the case, should I rethink if I still want to argue in favour of a multi-cultural and plural society!

 

Yet, in my view I share another, vastly more important, commonality with Saansi people and I believe with all other Indians at least of my generation: the fact of having undergone a constant acculturation, an acculturation to ‘modernity’[10]. I do not think anybody from my generation has grown up without being subjected to acculturation and thus without questioning (interfering with? intervening in?) one’s ‘original tradition’. Constant navigation between overwhelming presence of “traditions” and equally overwhelming presence of “modernity” characterises each one of our lives. Who is, then, an insider? It seems we will have to entrust only outsiders with the goal of change?

 

In spite of my incipient identity crisis for purportedly being an outsider to my own people, I must say that I appreciate and share Dr. Vanderlinden’s concerns about entrusting outsiders with the task of interference or even intervention. It is a dilemma, indeed. One of the many dilemmas which the peaceful “living-together”, and anthropology, and identity, is made of. For me, this dilemma only gives an insight to the complexity of the issue at stake (and provides me some consolation in dealing with my identity crisis). It is not surprising, therefore, that in spite of the omnipresent and vast industry dedicated to bringing about social change at all levels, ‘whose interference?’ remains an unresolved issue. Or should we say that this remains an unresolved issue for us, for academics, for anthropologists? For, to those involved directly with ‘the industry’, this is a non-issue or an issue of academic interest only.

 

2. Argument for Protecting Women’s Dignity: Imposition of ‘Totally Foreign Moral Values’?

 

Dr. Vanderlinden has raised doubts about whether the example that we chose, ‘Mewar’s case’ was well founded qua example. He notes, ‘apparently the evils resulting from the majority of saansi women from the pre-nuptial check of their virginity are not of the same magnitude as that resulting from Thai girls and boys from child prostitution’ (“commentary” 3). No doubt, the magnitude of this problem cannot be compared to that of ‘child prostitution’, on whichever scale the “magnitude” is measured. But should the magnitude of (evil) consequences be the criterion for reflecting on the intrinsic complexity of issues such as that of conflicts between women’s rights and cultural diversity; between universalism and relativism of human rights; or for considering whether claims for protection of women’s dignity and bodily integrity in non-Western countries are tantamount to requests for an imposition of ‘totally foreign moral values’ (“commentary” 1)?

 

As Christoph has mentioned in his reply, we wrote this article in the context of Mewar’s issue having caught media attention in India as well as on an international scale. The case itself may have been small in “magnitude” considering the number of women effected, but it was of great popular significance as it was used as yet another occasion to strengthen the indoctrination about Indian society’s general backwardness, and about its being unable to break free of the authority of traditions and religion, thus demonstrating failure of the Indian State globally in taking care of the welfare of its weaker sections like women and groups labelled as ‘tribal’.

 

I accept the responsibility for not being able to convey our point of view and for leading to the interpretation that the problems relating to ‘kukri ki rasam’ are ‘occasional “sporadic cases”, apparently exceptions which confirm a practice which on the whole seems far from arising passion among the huge majority of persons concerned i.e. the saansi women’ (“commentary” 3). We certainly used the terminology “sporadic case” where we should have used “extreme case” – “extremeness” being less a statistical notion than “sporadicalness”.[11] We also wrote, “Mewar’s story, certainly an extreme case, is also typical example of misuse of traditional practices (…). Unfortunately, such misuse is not rare. In many recent cases, the groom’s family has declared the bride to be impure, even without kukri ki rasam”. This case was indeed extreme and even sporadic, in the following sense which we described: “ community members argue that it is only recently that their practices are under scrutiny from the outside world. But with the exception of some sporadic cases such as Mewar’s, they argue that they have managed their affairs peacefully and efficiently. Some of the members also lay the blame for this situation on the girls. They believe that they have become less tolerant due to increased exposure to the western ways of life. Discussion with women of the community reveals that they subscribe to the practice due to its perceived antiquity, connection with their tradition and also because they do not have any other alternative besides silently accepting it. Defiance normally results in expulsion or boycott from the community or in strong opposition from rather influential members of the group, which threatens the basic survival in absence of any other reliable external support. Most of the women accept this practice and the resulting injustices as their fate due to being born a woman.” [12]

 

Prof Vanderlinden has further pointed out, in the context of his doubts about the pertinence of Mewar’s example, ‘finally it is not so much the institution of kukri ki rasam which seems to be involved, but its abusive consequences resulting from monetarisation of society’ (“commentary” 4). At another place (in “commentary” 5) he notes, ‘ I underscore that I am not convinced that Mewar’s case is the best example to promote interference at the level of kukri ki rasam, but that it could justify the need for a strong interfering action at the level of abuses to which it leads’. Again, I can only share Prof Vanderlinden’s concern, and not only for kukri ki rasam but also for other traditional practices which are often more attractive as gateways to abusive consequences than for their own sake.[13] Still, we cannot ignore that when issues concern women’s dignity in conjunction with traditions and religions, drawing the line between practice and its abusive consequences (between use and ab-use) is not an easy task. Often it is difficult to distinguish when some incident is only the abuse of a traditional practice (its denaturalization) and when the practice itself becomes abusive (its perverted nature). Another core dilemma. This is, in my view, the main reason why many women activists or feminists have opted for the general approach of challenging traditions and religions as being discriminatory.[14]

 

 

3. Case for pluralism: which pluralism, individual centred or community centred?

 

I can agree with Christoph that our presentation of pluralism was rather shallow. Christoph has adequately explained the reasons for that. I will make only a small remark to complement what he has written.

 

Dr. Vanderlinden has sketchily proposed, by way of solution, a radical pluralism, a pluralism of normative and legal orders, where ‘the individual confronted with some facts of life, has a choice between many legal orders’ (“commentary” 6). As Christoph highlights, what adds to the complexity of the issues is that such a kind of pluralism does exist in India. For all the communities, as far as formal availability of institutions is concerned, India is a pluralistic world. As a result, the Indian case brings home the point that legal and normative pluralism, or radical pluralism, can in itself not be the solution (because it is part of the problem!). Prof Woodman has very usefully pointed out, “much experience suggests that to make available, through “law on books”, an alternative form or part form of marriage is not to give couples, and certainly not to give women realistic choice”. It is in this context that some feminists argue that the institution of kukri ki rasam should disappear with education – and not because they feel, as Dr. Vanderlinden has interpreted, that institutions of such small magnitude ‘are not worth an open fight’.

 

Further, as it appears to me now, does not the very fact of having ‘truly pluralist system of laws centred on the individual’ allow easy interference from outsiders by giving them legal access within the affairs of any community? And, if so, doesn’t it ultimately privilege the individual over the community? Is this not taking sides in a deep-going dilemma? Many fieldworkers would be able to testify how easy it is to consider illegal, and immoral, any valued traditional practice when judged from the vantage point of a legal order incorporating individualistic ‘human rights’ propagated by international conventions. This is the closest conceivable analogue of the militant universalism Dr. Vanderlinden attributes to us – if it is not the same. And the Indian experience from the colonial period onwards also leads to raise doubt about the benefits of such individualistic, rights- and choice-based approach. For it was with the aim of providing a choice to ‘the individuals confronted with some facts of life’ that colonial authorities had promulgated the Caste Disabilities Removal Act, 1850, which ultimately had the effect of neutralising the caste-group based sanction of ex-communication, thereby significantly affecting the authority of caste groups in managing their own affairs, and allowing individuals to easily defy such sanctions if they could convince the State courts that the sanction was in violation of their rights. État de droit or anarchy? – The false dilemma of pluralism.[15]

 

Once again, I express my gratitude to Dr. Vanderlinden for his incisive “commentaries” which have given me, and hopefully the readers, a further opportunity to reflect on these issues. His and Dr. Woodman’s supporting comments reinforce my feeling that there is no moment in human lives – let alone in the part of life we call anthropology – that can be lived without dilemma, and it is these dilemmas which give reason to continue to think, to search, to hope, to reflect on ourselves and on others while being aware with Prof Michel Alliot, that “on ne comprend un peuple que si on parle sa langue; on ne parle sa langue que s’il ne parle pas la vôtre”.[16]