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Three path-breaking judgements by the Supreme Court in a month’s time. Its progressive approach is laudable. Then why are people opposing these?
Scrolling through Facebook a couple of days ago, I came across this post of a friend, “The Indian Supreme Court has been on a roll off late in redefining jurisprudence.” This aptly describes some of the landmark judgements delivered by the Apex Court in a span of approximately three weeks.
If we were to describe them in a layman’s terms, these judgements have been nothing short of path-breaking. These judgments have been delivered on issues which the society refused to acknowledge, or on archaic rigid legislations or customs which should have been done away with a very long time ago. Though the Apex court has moved several steps forward, is the society ready to keep pace? The answer sadly is no.
Let us have a look at the Judgements, one at a time to know, why society is reluctant to match pace.
It all began with this phenomenal judgement passed on September 7th, 2018. A five-judge constitutional bench observed that homosexual people have the fundamental right to live with dignity. The Apex court ruled that consensual sexual relations between adults of the same gender are not a crime in India. Thus a very mature step was taken by the Apex Court, which could contribute greatly towards the formation of a more inclusive society.
But the reactions from society only divulged the dark truth. While the world celebrated the fact that the largest democracy had done away with a colonial legislation and have moved ahead with times, a major chunk of its citizens wanted to desperately hold on to the archaic legislation. They had just one reason – the belief that only their beliefs could be right.
After this landmark judgment, people from various strata of society came forward to express their concern saying this spelled doom for our society and how the social fabric would be destroyed. But frankly, as the judgement pointed out, the private consenting decisions of its adult citizens is not for the state to intervene.
So, why are so many random men and women worried about the destruction of moral fabric or their belief being hurt? The fact is that a person’s sexuality is a part of their identity and an issue very personal to them. How a person leads a life, within his personal space, is for nobody to be concerned about. This concept of privacy is simply unacceptable to our society. People are happier living with the policy of “minding other people’s business as our own business.”
Section 497 of IPC stated that, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”
This was another colonial-era legislation which was struck down by the honourable Supreme Court on 27th September 2018. As it is evident from the wordings of the provision, this legislation enabled the husband to treat the wife as his chattel. The Apex Court struck down this legislation on the ground that this promoted the ownership of one gender over the other and defeated the right to equality and dignity bestowed by the Constitution.
Now the Supreme Court never legitimized the act of adultery – the judgment clearly states it still stands as a ground for divorce. If it leads to a person committing suicide because of the adulterous activities of a spouse, then he/she would be charged with abatement to suicide. What this judgment put forth is that a consenting act cannot be regarded as a criminal offence. An act of adultery in simpler terms is cheating and breaking of trust in a marriage, which rightfully is a to be dealt as a civil issue under the ambit of law.
This judgement suddenly turned everybody into experts. People passed arbitrary comments like “Now the society is digressing in the name of progress.” The sad part was some of the first negative reactions for this judgment came from the legal fraternity itself. People sombrely pronounced that the Supreme Court has decided to finish off Indian culture. Seriously this legislation is 158 years old, and as far as I know, ours is an ancient culture spanning thousands of years.
Some self-proclaimed experts even said, “Now people are free to cheat in a marriage.” This is a classic case of self-proclaimed expert analysis, which people have been mindlessly believing. In fact, certain recent murders, suicides are being attributed to this judgement. This shows the amount of vile half-baked knowledge can create. Some of these cases come from remote areas, where these occurrences happened even when Section 497 was in force.
There can only be one reason for this collective public fury towards a very logical and reasonable judgement, though we choose to remain in denial, we are a patriarchal society entrenched in misogyny.
The society even in today’s time has not come out of the pati parmeshwar and patni dasi mode. This is vouched by the fact that many liberal men still proclaim to have allowed their wives to lead an independent life. In such a scenario the country’s topmost court declared “the husband is not the master of his wife”, and this definitely did not sit well with our custodians of the society and their fragile egos.
This by far has turned out to be the most controversial judgement of recent times. Sabarimala in the Periyar tiger reserve is the abode of the Swami Ayyappa temple. This is a revered place of pilgrimage for Hindus. But this shrine does not allow women in the age group of 10-50 years from entering the temple.
The judgement was passed on a public interest litigation filed by Indian Young Lawyers Association. The petitioners saw this practice as discriminatory towards menstruating women. This practice as the Supreme Court rightly observed “results in indignity to women and the degradation of their status.” Thus the Kerala High Court judgment passed in 1991, which imposed a legal ban on women in menstruating age from entering the temple was overruled by the Supreme Court. This Judgement has created a furore and sadly there are plenty of women opposing it.
Interestingly the legal ban on women entering the temple came into force only in 1991, with the Kerala High Court ruling in S.Mahendran v. Secretary, Travancore Devaswom Board. In this case, the High Court prohibited the entry of women of menstruating ages from entering the premises as they were physiologically considered incapable of performing the penance of 41 days, essential for entering the premises of the temple. This is another case of associating a normal biological function like menstruation with impurity. Seeing this come from the most literate state in Indian is extremely saddening.
The people speaking against this judgement say the deity in the temple is considered a Naisthik Brahmachari, therefore entry of women would lead to a vow in his oath of celibacy. This explanation right at the onset is not right. A diety for any religious person or for anyone who believes in the existence of God is a supreme figure akin to a father figure or protector. This belief is the same for men and women, so why are women being targeted as a potential cause of polluting the divinity of the temple?
There are plenty of women here, who argue that they will uphold their culture and the court should look into bigger evils being faced by women. Agreed there are plenty of threats lurking for women in this country. But any court would only have the authority to pass a judgement within the ambit of the case before it. So when the entry of the women in the temple was the issue before the court, how could the judgement be passed for ensuring safe streets or public transport for women?
These are nevertheless extremely critical issues, but these are independent issues themselves. Equality and putting an end to mindless discrimination on grounds of gender is also an important issue, which has been effectively addressed in this judgement. So these women terming the judgement as frivolous and interfering of their rights couldn’t be more wrong.
As for sabotage of culture, isn’t culture about a societal guideline to improve the quality of life, aid in the path of progress? So shouldn’t culture be evolving and accepting?
But no, we have a lot of evil practices indoctrinated in our minds as cultural beliefs, one of them is branding menstruating women as impure. So by this logic, isn’t the entire population associated with the impurity, because a women’s fertility is strongly associated with menstruation? Those saying customary practices should be allowed to just be for overall peace to prevail, I just have one question to ask “how right is it to make a section of the population feel impure and discriminated for a bodily function?” Is this practice a peaceful one, is this really the kind of peace we want?
The Judiciary has time and again been accused of laxity, rigidity, lethargy and termed a big reason for holding the society and the economy back. But this time it is the judiciary which has taken giant steps towards social progress, delivered judgements which see reasons over prejudices.
As a society can’t we remove our prejudice tinted glasses, push off those dark clouds of blind faith engulfing us? We need to look at the society as equally embracing and free of unwanted discrimination. Instead of resisting change for betterment let’s follow the words of the Father of our Nation, “You must be the change you want to see in the world.“
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A dreamer by passion and an Advocate by profession. Mother to an ever energetic and
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