Devotees stop a car to check if any women are headed towards the Sabarimala temple, Kerala, October 16(REUTERS)
Devotees stop a car to check if any women are headed towards the Sabarimala temple, Kerala, October 16(REUTERS)

Shame at Sabarimala: Why India’s women need a uniform civil code

As a proud feminist I do not accept that tradition and custom can remain frozen in time
PUBLISHED ON OCT 19, 2018 05:29 PM IST

The shameful spectacle that is unfolding at Sabarimala — women being assaulted by violent mobs, just a handful moving up to the temple in riot gear and body armour only to be forced back — tells you that when it comes to entrenched sexism, even the Supreme Court is not feared. Misogyny has found a happy partner in political opportunism: the BJP-RSS is backing the street protests; the Congress wants an ordinance to reverse the judicial fiat; and after the communists have failed to implement the court order, their ministers are open to a review petition by the temple board.

Modern India is telling its women: you can be fighter jet pilots, sail around the world, lead corporations, fight terrorism or break world records. But your menstrual cycle still makes you less than equal. It is an abomination.

Ironically, the problem may lie in the very framing of the historic verdict that first ordered the entry of women of all ages into the shrine. Led by the former Chief Justice Dipak Misra, the majority judgment argued that devotees of Lord Ayyappa do not constitute a separate religious denomination. They also argued that the “practice of exclusion of women of 10-50 age group cannot be regarded as an essential religious practice”.

The judges were forced to locate their empowering decision within these limitations because they had to balance competing constitutional entitlements : the Right to Equality and the Right to Religion. Article 14 and Article 25 of the Indian Constitution were technically at variance.

The court had to take exactly the same approach when it came to setting aside the arcane and awful tradition of instant triple talaq. Then too, the majority verdict argued that the instant divorce custom was against the tenets of the Quran and hence could not be considered essential to the practice of Islam.

This is a terribly slippery slope because it means that every time women challenge the religious orthodoxy, the court will have to take a piecemeal decision and look for ways to argue that the equality being upheld is not at odds with religious beliefs.

My question: so what if it is ?

I am a proud pluralist and of course I agree that India’s religious diversity must remain constitutionally protected. It is what makes this country so special. Equally, as a proud feminist, I do not accept that tradition and custom can remain frozen in time. When the interpretation of age-old religious tenets collides with modern principles of gender-equality, for me the latter wins — and should — every single time. And this principle needs to be applied across all religions.

Muslim women are now moving court for the right of entry to all mosques. They are also fighting for women to become imams. Parsi women have petitioned the court against a custom that bars them from their parents’ last rites if they marry outside the community. And Christian women have been battling the antiquated personal divorce laws. Hindu, Sikh, Muslim, Christian or Parsi, personal laws and customs have always discriminated against women. It is time to change that fundamentally.

In the last year, women from multiple religions have courageously fronted the battle between faith and freedom. Nuns in Kerala have emerged from their cloisters to take on a bishop accused of rape. Bishop Franco Mulakkal, out on bail, was welcomed back as a hero in Punjab. That tells you how common patriarchal contempt for women is across India. Brave women of the Bohra community have taken on their religious establishment by waging a war on female genital mutilation. The fight against triple talaq was led by Muslim women. And Hindu women are demanding the right to pray at Sabarimala.

The only solution is a uniform civil code; a directive principle in the Constitution that has either been woefully politicised or entirely ignored. This cannot be a majoritarian charter: a very legitimate fear expressed by liberals. Instead it needs to be a code rooted in democratic rules of equality for all, especially women. This is essential because all personal laws are inherently unequal for women. Carnatic music vocalist TM Krishna has already steered the draft of a “progressive uniform civil code”. Many more such drafts should be pushed into the public domain to start a debate. It also conclusively terminates all controversies that religious conservatives make about cherry picking. Whether it’s the RSS or the Muslim Personal Law Board or any other religious group, no one will be able to object or play to populist resentment if a principle is uniformly applied to all religions.

What is happening at Sabarimala will repeat itself if we do not change the law. As women, we need to lead this.

Barkha Dutt is an award-winning journalist and author.

The views expressed are personal

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