Scales of justice

“Come September, everything wrong gonna be alright”— Natalie Imbruglia’s song from the ‘White Lilies Island’ album seems to permeate the September air in India as a series of weighty court judgements seek to undo wrongs inflicted by a blatantly patriarchal society. 

In an epochal shift that paves the way for gender equality, and individual freedom the Supreme Court of India through pathbreaking observations has shed colonial baggage certainly not worth its weight. The outgoing Chief Justice of India Justice Deepak Mishra’s parting gift becomes extremely valuable as it signals not just a farewell to archaic laws that lasted way beyond their expiry date but initiates steps towards a more equal society in a world that is witnessing great changes. 

A process that began last August with the judgement recommending legislation to undo the injustice caused to women in the name of Triple Talaq through a constitution bench comprising five judges from the Hindu, Christian, Parsi, Sikh and Muslim community culminated this month in two historic judgements, one related to entry to all women into the Sabarimala temple and another to the vexatious 158-year-old Sec 497 of the IPC pertaining to adultery. Dumped by the British, who introduced this law in India, in their own country, the law is a legacy that stood out like a sore thumb in a country that takes pride in freedom and equality of all its citizens.

All three issues are very different but at the core, they relate to the rights, freedom and equality of women heralding the beginning of the end to antiquated laws and attitudes out of sync with the times. By decriminalising adultery, which had a zero-conviction rate but conceding that it can be a ground for divorce the apex court has removed discrimination between the genders using privacy, individual’s autonomy and personal choice as yardsticks of legality. “Any provision of law clearly affecting individual dignity and equality of women invites the wrath of the constitution. It is manifestly arbitrary, and it is time to say that a husband is not the master of his wife. 

Legal sovereignty of one sex over the other is wrong,” the words from the main judgement are important because they recognise women as equal partners in the institution of marriage and not as property owned and controlled by men. The judgement on adultery also reflects a generational shift as we witness the unusual situation of the son DY Chandrachud overruling his father ex-Chief Justice YV Chandrachud’s verdict on the matter.

The verdict on adultery definitely is like a whiff of fresh air as it removes gender bias evident in many provisions in this law says D Vatsalendra, a practising advocate. “The law criminalised sexual intercourse with married women but not with unmarried women. If the consent of the husband was obtained for sexual relations, then it was no longer an offence. The most unfair part of the law was making men culpable under the law while treating women who were partners in the crime as victims. All this will change now,” she adds.

The pathbreaking judgement that opens the doors of Sabarimala closed as per an age-old custom to women devotees in the menstruating age, overruled the dissenting note of the sole woman Judge Indu Malhotra on the Constitution bench and clearly stated that biological characteristics cannot be a basis for discrimination. 

The judgment has a larger bearing as it will eventually remove restrictions in other temples across the country and signal the victory of social media campaigns like the ‘happy to bleed#’ movement that decried such discrimination. In the conflict between constitutional rights and age-old customs, the Supreme Court clearly gave precedence to equality and individual freedom over the rights of religious institutions.

Can we then assume that Courts will take on several other religious customs and issues of patriarchy? Will women priests be seen in all our temples? Will equal wages become a reality? Not necessarily according to political observers. Analysts feel that there is a greater importance being attached to sensational judgements and timing than to dispensation of quick justice where cases are piling up in courts for decades. 

“There is more to it than meets the eye. How come the Supreme Court has started delivering judgements at the rate of one sensational judgement a day, after sitting on cases for years on end? Will the judgements by themselves bring in gender equality when the issue of women’s representation in Parliament and State legislatures on par with their male counterparts is still a distant dream?” questions political and social analyst Dr T Venugopala Reddy.

Despite dissenting voices and apprehensions about timing and motives, the fact remains that eminent members of the highest judicial body stood up for the rights and freedom of women as enshrined in the constitution undoing several anomalies that emanated from a one-sided patriarchal perspective. 

It has set in motion a process of change that may result in the legal process taking stock of several laws that are clearly redundant and regressive. As the cobwebs of colonial legacy in the form of antiquated laws get cleared we can look forward to a day when women truly become “Half the Sky”.