RASHMI OBEROI | 1 OCTOBER, 2018
The Fight Against Discrimination
The subtext of all personal laws, regardless of religion, is that women are not equal to men.
Hurtling towards the last few months of 2018, there are still too many laws that make the world a harder place to be if you are a woman. Sexist laws persist across all corners of the globe. Some sound ludicrous in this day and age, whilst some are deadly, denying women fundamental legal rights in the face of violence against their bodies. Unfortunately, the fight for status, dignity and rights is never-ending for my fraternity.
The sexism inherent in our laws is still a cause for concern. Laws are made to set standards of ideal behaviour for people. The idea of equality is shattered when the laws themselves reflect a sexist bias in them. After seven tumultuous decades we, as a nation, stand in an era of social liberation and economic prosperity. We broadcast our nation as one filled with potential and opportunity, and stand as future leaders of this free world.
But, are the inherent chauvinists and those with closed minds ready for this change? As the old adage says ‘Change begins from within,’ and I think it is high time for people to wake up and make that change. Our laws are changing…albeit slowly…but there are visible changes and we need open minds to make such alterations that will have an impact and allow people to follow them.
Our recent judgments have been unanimously hailed by a majority but there are always a handful that will criticise and be against the winds of change. Here are the some of the top few judgements by the Supreme Court that have an effect on personal rights: The first is the decriminalisation of section 377. In a landmark judgment, the Supreme Court on 6 September 2018 decriminalised homosexuality. The five-judge SC bench's decision to make gay sex legal has restored the LGBTIQ community members' faith in the Indian judicial system. Many take a sigh of relief that ‘they would not be seen as a criminal’.
In a historic judgement, the Supreme Court quashed adultery as a criminal offence in India. The court underlined that Section 497 treats women as properties of their husbands and is hence manifestly discriminatory. It trashed the central government's defence of Section 497 that it protects the sanctity of marriages. The Supreme Court has also lifted the centuries' old prohibition of women between ages 10 and 50 from entering Sabarimala temple in Kerala on Friday. Last year, the Supreme Court had banned a controversial Islamic practice of instant divorce as arbitrary and unconstitutional, in a landmark verdict for gender justice that will stop Muslim men calling off a marriage on a whim. The top court said Triple Talaq violates the fundamental rights of Muslim women as it irrevocably ends marriage without any chance of reconciliation.
Even though the Hindu Succession Act, 1956 was amended in 2005 to give an equal share to daughters in inheritance, parts of the act still remain discriminatory. If a Hindu woman dies without a will, her property goes to her husband’s heirs if there is no spouse or children. The law assumes that the women become part of the husband’s family after marriage.
As per the Prohibition of Child Marriage Act, 2006 the marriageable age for men in India is 21, while it is 18 years for women. This manifests the narrow mind-set of our lawmakers who think that the wife must be younger than her husband.
The subtext of all personal laws, regardless of religion, is that women are not equal to men. They, therefore, discriminate against women in marriage, inheritance and guardianship of children.
Individual women from different communities have been challenging the constitutional validity of the discriminatory aspects of the personal laws in courts. Their main concern is the threat of forced marriage, murderous attacks in cases of inter-caste, inter-class and inter-religious marriages and property disputes even while they have to deal with issues like adultery, bigamy, polygamy, divorce, custody of child/children, property and incest in their marital homes.
Women should not be subjected to degradation, discrimination or harassment because of their gender in their homes or workplace. It is our duty to ensure that the next generation supports women's rights across the board. It’s important that you have leaders at the top – who understand that bringing different voices to the table is not to be feared or a threat, but to be welcomed and embraced.
While women and girls possess innate and frequently untapped potential as change agents in their communities and have the inherent right to drive the decisions that affect them and their families, empowerment cannot happen in a vacuum. It requires investments in interventions that work on multiple levels to shift the gender norms, power relations, and discriminatory practices that limit opportunities for women and girls on a daily basis.