Women: children of a lesser God     

Much has been made of an alleged distinction between sex and gender of females, especially in law. In case of men this distinction is seldom, if ever, made. But when any case concerning female sexuality is argued, gender is mostly taken as a social construct (as in the case of adultery laws) whereas sex (as in the case of establishing rape or giving temple entry rights to menstruating women) is seen as something related to the female body.

Thus, when one reads the different judgments allowing young women to enter a temple or a shrine, the matter is usually discussed and adjudicated upon as a basically social question. Interestingly in the case of the Sabarimala temple, the sole woman judge on the bench put in a dissenting note, upholding the denial of access to menstruating women while asserting that religion being beyond rationality, the taboo should not be removed on Constitutional grounds.

Oh dear, this duality of views really complicates the question for women. In our courts of law, is woman to be evaluated on the touchstone of a secular Constitution, as a citizen equal to men? Or, is she going to be treated on the basis of biology, bigotry and superstition?

At this point, it begins to seem that to a woman, her sexuality is akin to what manual labour is to an asset-less wage earner. It is exclusively their own, but is forever at the disposal of others and is taken- away from them almost at will.

The realisation that men control power, and their control over women is ultimately rooted in both her sex and gender, hits women between the eyes. One saw this while Christine Blasey Ford articulated the chilling global anomaly while testifying before the US Senate Judiciary Committee against President Trump’s nominee for the Supreme Court, Brett Kavanaugh. As she made well substantiated allegations of sexual misconduct against the judge, she was unsure if her testimony would be taken seriously by a Senate Committee that was overwhelmingly male and conservative. She said, “I was…wondering whether I would be jumping in front of a train that was headed to where it was headed anyway, and that I would be just personally annihilated…But I am so tired of watching us jump...The #Me Too movement lurches forward over a path of scars”.

She was right. After a stormy hearing, an uneasy calm hung over the listeners, dotted here and there by cynical sniggers. Christine’s testimony as a woman victim of gross sexual abuse was rubbished by Republican Senators as motivated and feminist whining, while dismissing her actual experience. Privileged men like Kavanaugh were entitled to have some fun, they seemed to suggest while painting Ford as a spoilsport. It revealed to women the world over, how male viewpoints still remain the final arbiter of family and kinship rules in law and legislature.

One major reason is that men globally outnumber women in law-making bodies. Since ancient Greece, men, not women, have made laws in parliaments and also supervised their enforcement. The entire process has been dominated by men’s understanding and experience of societal relationships and needs.

Equality is not easily definable. But in law, there is a principle of natural justice which dictates that those similarly situated must be treated in the same manner. Applied to pilgrims to the Sabarimala temple, this led to the majority decision allowing women of all ages access to the temple at all times.

But women have so internalised the male viewpoint over the centuries that they instinctively take a protectionist approach like when Delhi Women’s Commission chairman Swati Maliwal goes on a fast to secure justice for a child victim of rape. But come a case involving women like herself, she is enraged when an ancient and archaic law criminalising adultery is removed. Suddenly she feels that this ruling would wreck the institution of marriage, destroy the sanctity of marriage vows and the prevailing family system!

“With all the historical baggage we carry,” wrote late Justice Leila Seth, one of the truly emancipated legal minds India has produced, “it is difficult to understand and appreciate true equality...there are no definite parameters. What might have looked just and fair a century ago, in the manner of the treatment of women, no longer looks just and fair...” (Talking of Justice –p24).

So, today, gaining the right to enter a temple or a Dargah or decriminalisation of the LGBTQ community or adultery, though good and progressive steps, are unlikely to make a major difference to speed up India’s race towards gender equality. At best these verdicts have provided women with a jurisprudential opportunity through a crack in the wall between law and society.

If gender equality, of both statutory and the constitutional kind, and the real nature of crime against women are to be really understood and defined legally for adjudication, we must focus on women’s own concrete experience, and not on abstract legalities. The ‘system’ must look into the eyes of a Christine Blasey Ford or victims of various Babas or the unnamed young lady from Meerut beaten up by police for being in a relationship with a Muslim.

From Sabarimala to Meerut to BHU, women’s inequality both at home, the workplace and elsewhere, targeting for rape, domestic violence and systematic sexual harassment have taken place in specific social contexts propelled by local power hierarchies. And unless these contexts are not removed and restructured, even the most progressive laws will only end up scratching the surface.

Because our laws for freedom of speech still protect male stalkers in cyberspace who bully women with unmentionable threats and offers. Our laws on privacy protect the view that within conjugal bedrooms sex is always consensual and so we refuse to recognise marital rape. Our laws of child custody similarly help the male partners more since they usually have better means and incomes and social status. As a result, many dysfunctional marriages survive at the cost of the wife’s mental and physical well-being while abusive and uncaring husbands manage to control of their wives by holding out threats of physical harm and loss of custody of their children.

It is time we recognised that the real goal is not just to tinker with the status-quo but to usher in bold and radical changes in the equation to make women really equal to men.