Triple Talaq- The courts, the politics, the society and the media.

Yesterday, the Supreme Court of India finished hearing arguments in a case challenging the constitutionality of the practice of ‘instant triple talaq/talaq-ibidat’, Nikah Halala and polygamy. The issue needs an intersectional analysis. It cannot and should not be seen from the sole perspective, either of law, gender, politics or religion. It is also critical to evaluate the role and quality of discourse.

First, I say this with great respect that in refusing to evaluate the constitutionality of Nikah Halala (Loosely described as a religious requirement that a divorced woman first marry and sleep with another man before returning to her husband) and polygamy and restricting itself only to triple talaq, the Apex Court has abdicated its duty. Despite being urged to do so by the government as well as the All India Personal Law Muslim Board (AIPLMB), the court has also refused to rule on whether all personal laws should come within the ambit of the Constitution of India. Instead, it chooses to continue with analysing whether a practice is essential/fundamental to the religion. This is most disheartening.

The court is not a panchayat, and it is not a priest. I am guessing that the reasons behind the court’s approach to this are (i) the court not wanting to open floodgates of litigation and causing ‘chaos’ in society and, ii) the belief that such changes must happen incrementally. The chaos reason makes no sense especially since the government itself is willing to take the responsibility of maintaining ‘order’. It is rather cruel that women must once again bear the burden of ‘preserving order’ because the court refuses to uphold their rights which are otherwise guaranteed in the constitution.

Secondly, the reasons that are being put forward against abolishing triple talaq. The AIPLMB shamelessly said that the court’s interference might revive a ‘dying practice’. This is tantamount to saying that don’t impose reform or we will wreck even more cruelty on our own brethren. Shame. Some argue that in such situations reform must come ‘from within’. There is (and reasonably so) a certain amount of anxiety being felt by a part of the Muslim community because of the timing of these developments. Is a majoritarian government on a rampage? What if this attempt at ‘liberating Muslim women’ is just a charade to fool people into believing that it is indeed secular and liberal? Flavia Agnes points out in her book Family Laws and Constitutional Claims that in such times religion becomes an even more important marker of identity. She argues that the intended reforms are rendered ineffective because such imposition pits women against their community.

The obvious question is, why didn’t these regressive practices get abolished when other governments were in power. If the intentions of the BJP are indeed mendacious, who is to be blamed for letting things coming to such a pass? The formula of incrementalism has only led to more chaos. It has only led to all political parties pandering to the regressive clergy of all religions.


Third, some people have also expressed pain at the discourse painting Muslims as this regressive, primitive community which abandons women at the drop of a hat. They ask, are there no inhumane practices in other religions? Why aren’t they being dealt with first/together? In her book, Agnes reminds us of the long, painful and continuing journey that is the reform of Hindu Personal Law. Sardar Patel, Rajendra Prasad, and the RSS opposed the right of women to divorce, the abolishing of coparcenary and inheritance to daughters amongst Hindus. Until 1955, polygamy was permitted amongst Hindus. Until 2005, daughters had limited rights in the ancestral property. Marital rape and child marriages are still pervasive across religions. These are, however, arguments in favor of abolishing all regressive laws and practices.

Fourth, the sensationalist approach of the media. The media would have everyone believe that an average Muslim man is a regressive adulterer at best and a terrorist at worst. Tragically, an average non-Muslim rarely interacts with Muslims. Again, all communities, the government, and the courts share blame for this. For instance, there is zero movement on housing discrimination being outlawed. Everyone loves their ghettos. An average non-Muslim learns about Muslims through the media which paints an astonishingly ridiculous picture. The media has failed to educate people about the reform of the personal law in every religion. It has failed to point out that instant triple talaq is not the only way (and by some accounts not even the prevalent) mechanism of divorce. It has failed to inform people that Islam and Muslims are not monoliths. It was duty bound to do so. It must reflect on the damage this failure is resulting in before it is too late.

Finally, instant triple talaq must be abolished pronto. Obviously, these are not the ideal set of circumstances in which this should have happened. But they will have to do. The society, courts and the government already compel women to bear too many cruel burdens. No more.

This article was first published in Mumbai Mirror




The farce of women’s day.

A lot of things have remained unchanged between the last Women’s Day and the one that just went by: marital rape, triple Talaq…

It lasted twenty-four hours. I suspect these twenty-four hours must be torturous for so many. It wasn’t like brave souls didn’t raise their voice against the oppression, so powerful was the onslaught, they were summarily crushed. I am talking about International Women’s day, which was recently celebrated all over social media, by several brands, and in several restaurants and bars.

While there were those who weren’t worried, some people rightly expressed apprehensions that it was unfair for women to have one special day for themselves, while men didn’t. Well, to be fair, it’s possible that in the early days of patriarchy, men must have felt special but they soon got used to and bored of all the oppression they perpetrated, and now there’s nothing special about the remaining 364 days.

I mean, are men really wrong when they complain about stores offering discounts to women? So what if men enjoy far bigger ‘discounts’ in the form of much higher wages? (A 2010 report of the World Economic Forum claims that even in the corporate sector, women are paid one-third of what men in the same position are paid.)

There is a school of thought, which believes that if things get out of hand, one day could soon increase to two and maybe even a whole month. We must not get carried away. I believe that all such concerns are unfounded, because men march on as gloriously as ever and nothing really changes.

To reassure other men I have made a list of the things that remained unchanged in India between the last women’s day and this one:

1) Marital rape continues to be legal. Several studies show that it is also commonly prevalent. Rape is legal in India, as long as the person doing it happens to be your husband. Yes, there are many countries in the world where marital rape is a crime (including Nepal) and there is no significant abuse of law. Yet, people continue to raise the spectre of the institution of marriage and family getting destroyed if marital rape is criminalised in India. Women being raped is a small price to pay for the long life of these institutions.

2) Adultery continues to be a crime. If a married woman sleeps with a man who isn’t her husband, her husband has the right to sue the said third man. The woman’s consent in filing this case, or the fact that she chose to do as she pleased with her body is irrelevant. Her body is not her own. The law’s origins can be traced to the 16th century (four hundred years ago), a time when it was cool to openly acknowledge that women were the property of men. Those were the days.

3) Women’s reservation bill, originally tabled in Parliament in 1996, has still not been passed. The bill is futile anyway, because there is still a lot of confusion over what women should be allowed to eat and wear and who they should have sex with.

4) “Sex against the order of nature” continues to be a crime under Section 377 of the Indian Penal Code. This is simple. We are regressive and cruel by nature, so members of the LGBTQ community having sex is against our nature. Indians have tremendous clarity when it comes to sex- we are busy either arguing that we must be allowed to forcibly have sex, or arguing that someone else must not be allowed to have any sex.

5) The government has not come out with a law that prohibits housing discrimination – and the society takes care of the rest by ensuring that single working women find it difficult to rent houses. They are getting discounts once ayear, though, and one shouldn’t be too greedy.

6) While there is plenty of debate around the matter, Triple Talaq continues to be legal. When it is otherwise clear that men own women, why is there so much conversation around whether they can be summarily dumped and abandoned?

7) On Twitter, the Prime Minister of India continues to follow people who threaten and abuse women. In case you’re not a Twitter person, ‘follow’ here does not mean he is monitoring them, it actually means that he finds them interesting.

8) The government continues to make a mockery of the Nirbhaya Fund, with a large part of the funds lying unused. Also, the government had initially planned to have 660 one-stop centres, which would provide medical, legal and psychological assistance to rape survivors. The number has now been scaled down to 36. The government clearly came to its senses and realised that not all men are rapists and so, we don’t need these many centres. Modi marked the occasion of women’s day strangely not with an acronym, but by saying that he ‘salutes nari shakti’. This is large-hearted of him, because we all know that while oppressing a group of people, it is helpful to tell them that they are very brave and full of shakti. There was this slogan doing the rounds during the 2014 national elections. Was it ‘Bohot hua naari pe vaar, abki baar discounts in bar’? No, I don’t think so.

This article was first published in the Mumbai Mirror

Lipstick under my burkha

The Central Board of Film Certification (popularly known as the Censor Board), which exists because there are no adults in India who can think for themselves, is being unfairly attacked. I, for one, will not stay silent while this injustice continues. However, I do advise that you stop right here and take this article to someone in the Censor Board and ask them if it is OK to read it.

With that out of the way, here’s what is happening: the board has refused to certify Prakash Jha’s upcoming film Lipstick under my Burkha. I saw the trailer and the movie seems to be about four independent-minded women who have sexual desires sans the objective of having a child/independent of marriage. If only the filmmakers had argued that the movie is fantasy fiction like the Lord of the Rings, then maybe the movie may have made some sense, but they did not do that. More importantly, and this is an act of deceit no one seems to have noticed, the title of the movie is Lipstick under my Burkha.

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CBFC refuses to certify Prakash Jha’s film Lipstick Under My Burkha

This was clearly done to fool the Censor Board, because going by the trailer there is more lipstick outside the burkha than inside it, and even the women seem to want to get out of the burkha, or any clothes at all, without appropriate permission from the society/their husbands/boyfriends/fathers/men.

The Censor Board, it must be known, does not take the responsibility of controlling the minds of crores of Indian citizens lightly, and therefore the movie was rejected for the following reason: “The story is lady-oriented, their fantasy above life. There are contanious sexual scenes, abusive words, audio pornography and a bit sensitive touch about one particular section of the society.”

Many people are saying that this line of thinking is regressive but they are wrong. I am yet to read an order of the board, which is this honest, compassionate and forward-thinking. The board bravely calls out the movie for being lady-oriented. Pray, tell me, what is lady-oriented in this country?

Not public spaces, not marriages (dowry, marital rape, viri locality), not employment inside or outside government, not the judiciary, which hardly has any women judges, not the Supreme Court of India, which recently held that women are duty-bound to live with their in-laws, not religion for sure.

Why must such unrealistic ideas be perpetuated? The board also rightly identifies their fantasies as being ‘above life’. This has more depth and wisdom than is apparent at first glance. Firstly, the very idea of women fantasizing is unknown in our society except for a few victims of western culture.

Secondly, it is well-known that women fantasizing about choosing who they want to marry, or forgetting that they are merely a part of someone’s ‘honor’ -— often costs women their life. The board is therefore simply saving lives. The order states that the movie contains sexual scenes. The problem is that the film seems to be about women who want sex without any reasonable goal. They don’t want it to bear a child who will take the name of his/her father forward. They are neither married nor sex workers. Why else would women want to have sex?

Despite rumors to the contrary, Indians know that women don’t masturbate. There are no women who want to have sex just for the sake of sex. No women who want to pick up men, have sex and say thank you, goodbye. (Men do this but women don’t.) Everything that women wear each day of their lives is to either please men or provoke them. Women don’t have a body independent of how it exists in the minds of men. Every aspect of a woman’s life exists for consumption by men. Coming to the board’s beef with women using abuses/expletives, I can’t believe that experienced filmmakers can be this naive.

Women don’t use expletives. Women are expletives. How else would men insult/humiliate each other? There would hardly be any expletives if there were no women (which is something many Indian families tried very hard to achieve — kill before being born, kill immediately after birth, kill after marriage, and so on).

Similarly, women don’t watch pornography; they are the subject of pornography. Thousands of women have been destroyed for these ideas to be clearly understood by the society. I am sure that the board believes that their sacrifice must not be in vain. I leave you with an anecdote that a friend shared, but I obviously did not believe. My friend said she walked into her mother’s room to find her masturbating with a radish. She was shocked, and the first and only word that came out of her was Mooli!

Her mother calmly responded: “Kela naazuk hai, jaldi toot jaata hai.” (The banana is delicate, it breaks very quickly).

 

This article was first published in Mumbai Mirror

 

Muzaffarnagar 2013: Lest we forget.

Dozens of women are gang raped. Seven (including at least two who were raped in front of their own children) gather the courage to come forward and fight for justice. The accused seem to have powerful friends. They use every trick in the book to abuse the criminal justice machinery. The women and their families are intimidated, the accused secure bail and delay trial by not appearing in court despite court orders.

The police do their best to delay the trial by not registering FIRs, not filing charge-sheets, not ensuring that the witnesses and the victims receive sufficient security. All odds are set against the victims who are fighting institutions which are veterans in this kind of a battle.

Here’s what these institutions (the government, politicians, the police, the courts) appear to be saying to the victims: this may be your first case, but we have done this over and over again. We will crush you. Now comes the twist in the tale. Ordinary folks like you, witness all this happening and refuse to stay quiet. They refuse to forget. They decide to tell these institutions – you may think these women are alone but they’re not. We have had enough. They decide to tell those women that they are not alone. All over the country, people hold candle marches, write to their elected representatives, start tweeting, demanding justice.

Suddenly the fight becomes a little equal. Because the one thing all these institutions fear is ordinary folks, especially angry ordinary folks, especially thousands of them. I don’t know what happens next. If you were writing this story, what do you think would happen next? If this was going on in a movie, let’s call it Rang De Muzaffarnagar, what would need to occur in the script to make you feel happy? Or even proud?

Everything I have shared in the paragraph above is true in the context of the gang-rapes in Muzaffarnagar in 2013. Except for the bit about the Aam Janta deciding to lend their voice to the victims. The gang-rapes in front of children, police delaying FIRs and charge-sheets, courts granting bails on the condition that the accused will not seek adjournments. The accused repeatedly seeking adjournments and no one batting an eyelid. No convictions.

Women and their families being intimidated and receiving death threats. Women being forced to withdraw their cases. In some cases, the investigating officer himself terrorizing the victims. Some of these cases are still going on. In at least one the charge-sheet has not been filed till date. The State government appears to be continuing under the belief that no one is watching. Continuing with the hope that delay will kill the victims who they are not able to scare, or harass to the point of exhaustion.

Why am I repeatedly talking about the failure and/or collusion of the government? Some context is necessary: these rapes happened during the riots in Muzaffarnagar. In 2014, the Supreme Court put the blame for the riots squarely at the door of the Samajwadi Party-led state government. Sangeet Singh Som, who is a sitting MLA of the BJP, is one of the chief accused in the case for allegedly making provocative speeches and uploading incendiary fake videos. Justice Vishnu Sahai Commission’s report on Muzaffarnagar riots of 2013 has also concluded that Sangeet Som was guilty of instigating people to riot. A member of Parliament from BSP has also been accused of giving incendiary speeches and was sent to Judicial Custody in December 2013.

What I’m saying is, the political class has sufficient cause to be united and probably is united. We do, too. The political class has a lot of power at its disposal. We do too. As I’m writing this, I receive a message from a friend. He has shared a quote by Alice Walker: “The most common way people give up power is by thinking they don’t have any.” Those in power seem to be doing their best to crush these victims and to also crush us, because, mark my words, every act of violence against a woman that no one is held responsible for leads to many more acts of violence against women.

Those in power are counting on you to forget. Let me confess, I had forgotten too until I read a thorough report authored by Amnesty International on the matter. Much of the information I have shared here is sourced from their report. The victims, on the other hand, are probably hoping what each of us who have been in such a situation and who, heaven forbid, may one day be in such a situation would be thinking. Fervently hoping justice is done, praying with every iota of our being that we get all the support we can.

Wanting to be told – you’re not alone. Like I said, those in power are hoping you forget. The victims are hoping that you don’t forget, and don’t let anyone forget. From here on, the script is yours to write.

This article was first published in Mumbai Mirror

Baiword of exploitation

Widespread outrage ensued when while presenting the Annual Budget 2016, the Finance Minister announced that the government proposed to tax the Employees Provident Fund, an instrument of saving for the salaried class. News channels started debating the matter. #rollbackepf began trending on Twitter. A digital petition which received approximately 2.4 lakh signatures claimed the measure was a ‘draconian act’ and a ‘killer blow’ to the salaried class. The government withdrew the proposal. The injustice was undone. The author of the digital petition felt compelled to clarify that ‘he was not a hero.’ Democracy had won.

Which brings me to the question I ask this week: What about domestic help?

They don’t have any statute-mandated savings scheme that can be taxed. They are not protected by minimum wage legislation in many Indian states. Even in the states which do have such legislation, enforcement is rare. Imagine the outrage that would follow if the government were to pass a law prohibiting maternity leave tomorrow. Yet, a woman working as a domestic help would most certainly either lose her job or continue to work through maternity. A sari and a box of sweets are the standardised currency of annual/festive bonus. Full-time domestic workers do not have any fixed working hours or any private life. Any leave is discouraged. I could go on and on. Those who believe that the ‘market’ reasonably controls Wages in the unorganised sector are mistaken. Markets are not immune to the exploitation of the marginalised.

Incidents of physical and sexual abuse are also on the rise. Google the phrase ‘beating domestic help, ‘ and you will be shocked at the number of news reports that appear. Most women who work as domestic help are migrants and live in slums. There is a general fear of the police, and it is reasonable to infer that a significant number of such incidents are going unreported, especially those concerning full-time domestic help.

What domestic workers also don’t have is a voice. Reports that a government teacher in Delhi beat her domestic help do death or that a 14-year-old was tortured for months did not lead to any Twitter hashtags or candlelight protests or sudden changes in the law.

A comprehensive national law governing working conditions and wages accompanied by an awareness campaign is the need of the hour. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, includes domestic workers in its ambit but awareness about it is almost non-existent. I have repeatedly argued that if a violation of consumer rights merited a ‘Jaago Grahak Jaago’ campaign, rampant exploitation of domestic help is most certainly a worthy cause. In the absence of such a campaign most domestic workers will never find out about their rights, and any legislation will fail.

Unfortunately, however, the government appears to be in no tearing hurry. India is yet to ratify the 189th ILO Convention — Convention Concerning Decent Work For Domestic Workers — which asks its member-states to ensure, through legislation and policies, that domestic workers are treated equally with other workers in terms of work hours, compensation, conditions of work, periods of daily and weekly rests, annual leaves, social security and other benefits, right to form associations, and collective bargain. Attempts at universal financial inclusion by means of opening of accounts, etc. by successive governments are, however, a step forward.

Unfair payment of wages and exploitative work conditions appear to be a small problem in the face of the fact that we don’t even treat domestic helpers as human beings. The modern, 21st century India is comfortable with forcing the help (sometimes even her infant) to sit on the floor and not on our sofas or furniture. We refuse to share meals with them: it is a common sight to see domestic help eating food in a corner of the house, away from the rest of the family. I know rich, educated families in Delhi who still keep different utensils for their help. The leftovers are reserved for the pets and the help. Sharing a toilet is out of the question. Many buildings in Mumbai have separate lifts for the help. We have normalised treating them with humiliation.

One of the biggest challenges faced by humankind as a species is that we are still struggling to treat each other as a human being, unblinkered by considerations of class, gender religion and what not.

I often think about the words ‘humanity’ and ‘humane’. The Merriam Webster’s dictionary, inter alia, defines ‘humanity’ as ‘the quality or state of being kind to other people or animals’; the word ‘humane’ is defined as ‘characterised by tenderness, compassion and sympathy’. To be ‘inhuman’ is to be cruel. Perhaps it is time we look for another species with whom ideals of compassion can be associated. We seem to be falling woefully short.

This article was first published in Mumbai Mirror

Marital rape should be criminalized

‘Marital’ cannot be used as a disclaimer. Sex without consent is a crime, and the law needs to punish it.

Consensual sex is a crime in India. Rape is legal in India. Shocked? Disgusted? Disbelieving? Then the next two facts may leave you conflicted. Anal sex is a crime under Section 377 of the Indian Penal Code (IPC). Marital rape is legal, unless (thanks to an amendment passed in 2013) the wife is living separately or, per the IPC, is under the age of fifteen.

How common is marital rape? One-third of men interviewed by International Centre for Women (ICRW) and United Nations Population Fund’s (UNPFA) across seven states in India admitted to having forced a sexual act on their wives.

In 2013, a three-member committee comprising the Late Justice JS Verma, Justice Leila Seth and Senior Advocate Gopal Subramaniam recommended that marital rape be criminalised.

However, both the UPA and the NDA governments have failed to. A union home secretary under the UPA reportedly claimed ‘marriage presumes consent’ and the minister of state for home, under the NDA government cited illiteracy, religious beliefs and ‘sacrament of marriage’ as hurdles.

You know what else has been presumed to be sacred, derived from religious belief and existed in a time of severe illiteracy? Sati. Our minister also claimed that the concept as ‘understood internationally’ cannot be applied in India. The supreme court of neighboring Nepal didn’t think it was too cosmopolitan—it has held that marital rape is criminal since 2006.

A report published in a national newspaper last year claimed that our Supreme Court, the guardian of the constitution and the protector of individual liberty refused to entertain the petition of a woman seeking an amendment, on the premise that ‘law cannot be changed for one person.’

Those who oppose criminalisation of marital rape raise the bogey of abuse of the law. A senior advocate recently wrote that ‘If at any stage in a marriage, the wife seeks to withdraw the presumed consent that accompanies a marriage, it is open to her to live separately.’ If that’s so, the argument assumes that the husband will jump away the moment his wife screams ‘I separate’ as she is being raped.

Troublingly, the statement assumes an equality between genders. Is separation always possible for women who face abuse? We live in a patriarchal society where prejudice, discrimination, lack of access to education and work, makes many women financially dependent on their husbands. A woman living separately from her husband is stigmatized. She is often urged to ‘adjust’ or ‘save her family’ or ‘settle matters’ – even by her own family.

If abused women found it so easy to separate, then we might as well do away with laws criminalizing domestic violence too—tell women to walk out instead of putting up with it. And even if they are able to walk away, that first instance of violence- which necessitates the exit from a marital home – is still a cognizable offense and should be punished.

There is, of course, the argument that since Section 498A – our dowry law – is abused, a law criminalizing marital rape will be abused even more. Now women will be free to accuse husbands of rape once their relationship turns sour. Or trick men by giving consent and then allege rape. In response, let me state the obvious.

Every. Law. Is. Susceptible. To. Abuse. False allegations are possible within a marriage and without. That thankfully has not led us to decriminalize an act of rape outside of marriage. Secondly, and I cannot emphasize this enough: it is tough for a woman to prove the absence of consent especially in a bond of matrimony. Thirdly, for context, the crisis our society faces is one of under- or unreported sexual violence, categorically not an epidemic of false cases.

All that differentiates an allegation of rape within marriage from one beyond it is the unstated presumption that marriage entails perpetual consent on the part of the wife, a presumption one would like to believe that no law would support in the 21st century.

The 205th report of the Law Commission of England and Wales pointed out (citing a family court judgment: “Whatever may be the difficulties, actual or imagined, foreseen by lawyers, the criminal law should as a general proposition at least aim to demonstrate and to delineate what conduct is or is not to be tolerated”.

The same report went on to quote the Police Superintendents’ Association of England and Wales: “Of course, all problems that are inherent in bringing a successful prosecution for domestic assault and/or injury will also be present in trying to prove an offense of marital rape. But that is no excuse for failing to provide the appropriate legislation. The police role in trying to prevent injury and misery is weakened by the absence of appropriate legislation. Indeed, we hope that the very existence of such a law might serve as a deterrent”.

The absence of a law recognizing that marital rape is a crime curtails women’s ability to counter abuse. There is, however, hope for India. Last month, the Delhi High Court asked the Central Government to respond to a petition seeking to declare Section 375 of the IPC unconstitutional— as it discriminates against married women sexually assaulted by their own husbands.

The terrorist group Daesh (IS) among other things believes that its members own the women they marry and should be free to rape them. One hopes that the government of India disagrees.

This article was first published in Mumbai Mirror