India’s laws are deliberately imperfect. Many of them do not adhere to ideals of our country and in fact actively work against them. I’ve long had a difference of opinion with certain people when it comes to lawmaking – and marriage and divorce laws in particular. There is one camp which says that laws should reflect social realities. That they should take into consideration the situation on the ground in order to be fair. My opinion is the opposite. That laws should reflect what we as a country aspire to. They must hold us to a certain standard of behavior and pull us up along with it.
Take the country’s stand on homosexuality. Many people say things like “India is not ready for it”, or “Society is not willing to accept gay people” and so on and so forth. But the fact of the matter is that criminalizing homosexuality is wrong however you want to twist it. So we have a problem. Do we cater to “social realities” and wait until a mythical time when people are ready to accept homosexuality, or do we legalize it from day one? Same with caste. A lot of people still care about it. But do we simply decide to treat everyone equally, or do we go India’s route and implement caste based reservations?
Do we cater to “social realities” and wait until a mythical time when people are ready to accept homosexuality, or do we legalize it from day one?
On the face of it, India’s marriage laws and other gender biased laws are heavily tilted towards women. I say “on the face of it”, because those women who are most in need of such laws very often do not reap their benefits. For example, a disturbing trend in courts these days is to charge a man for rape if he refuses to marry a woman he’s had sex with after a “verbal agreement”. Since when did a verbal agreement become legally binding? Since when did the word “rape” come to be used for consensual sexual acts involving adults?
Those defending such rulings point out that virginity is a premium in most of India. That a woman’s marriage prospects and status in society are ruined if it becomes known that she’s had sex outside marriage. And they’re probably right. But does that mean the law should take these “social realities” into consideration and send a man to jail just because he didn’t follow up a verbal agreement to marry? I don’t think so.
What’s more, such rulings cement the very attitudes that we’re trying to change. The fact of the matter is that viewing a woman’s virginity as a crucial part of her personality is wrong. People refusing to marry her because she’s had sex is wrong. Having double standards for men and women in matters of sexuality is wrong. Do we want to exterminate these outdated ways of thinking, or do want to perpetuate them? By playing to “social realities”, laws and judges are sending a clear signal – that they too agree with these perceptions. A judge who sends a man to jail under these circumstances is essentially saying “Yes, her life is ruined”. And thereby gives it the aura of legitimacy.
Instead of eradicating such prejudices, we push them even deeper into our collective psyche with the government’s stamp of favor. People often look to the law to get their ideas of the way things should be. And what do they see?
Do we want to exterminate these outdated ways of thinking, or do want to perpetuate them?
Another example is our lop sided divorce laws which are not gender neutral. I’m not sure whether or not the bill has passed parliament, but the Union Cabinet has approved a Divorce Amendment allowing a wife to get a share in her ex husband’s ancestral property, but not vice versa. Once again, it’s clear why these laws are in place. In many cases, women don’t get a fair share of the property of their parents. After marriage, they face financial difficulties, and don’t get proper alimony or child support. These are social realities that are facts. My question is, should laws take these social realities into consideration? In my opinion, no.
To start with, laws are not made for “most people”, or even “the majority”. A law is meant to be fair to each and every person in the land. You can’t make a law that is unfair to even a small section of the population. And in this case, that small population surely exists. Not all women are oppressed, not all women are denied a share of their parent’s property, and not all of them are financially oppressed. It’s beyond doubt that discriminatory laws are unfair to many people who do not fit the mold.
But the real problem here of course is that so many women are pressurized into marriage, and are not encouraged to be financially independent and think for themselves. I think we can all agree that these attitudes need to change. The question is, do these gender biased laws move us towards that goal, or do they carry us away from it? I think they do the latter.
A law that gives preferential treatment to women starts out with the assumption that a woman is oppressed and that it’s normal. That it’s expected. It maintains the status quo and accepts it as it is. It blindly accepts the poor state of women so uncritically that it doesn’t even see fit to mention it. And like before, it gives the government seal of approval and implicitly makes it an official government stance. Laws are notoriously difficult to change and by blindly pandering to “social realities”, those social realities are now going to stay on the statute books forever.
It’ll be a cold day in hell before politicians wake up one morning and say “You know what? I think the lot of women in India has improved enough to justify taking this law off the books”. Once you create a law to give benefits to a certain group, you can’t take them away because of the danger of losing votes. It just doesn’t happen.
People say “Lawmaking is not done in a vacuum”. I think that laws should be made in a vacuum without bothering about social realities. Laws define who and what we want to be. They hold us to a certain ideal standard and shouldn’t cater to people’s bigoted prejudices. Have strong, fair, and prompt law enforcement and let things sort themselves out. That way, women will get proper alimony and maintenance based on their economic condition, the number of children, and the life they were accustomed to before the divorce.
Bottom line: If the government wants to change people’s mindsets, it has to stop perpetuating those mindsets by pandering to these “social realities”. By crafting laws taking them into consideration, it accepts them as the de facto standard in a mostly permanent way. Laws rarely have objective exit clauses saying “When xyz metric is achieved, this section will automatically be repealed without further intervention”. By creating open ended rules, the laws transform from a set of documents laying down the country’s ideals and instead become a miasma of ill conceived actions that badly backfire as time goes by.