Women’s Day rhetoric vs everyday reality

International Women's Day has rolled around again. Thank God and the Constitution that we can say that women in India at least are free and equal. But can we? The de jure and de facto reality is that there has been many a slip between the cup and the lip.

The fact that women's status has to be debated and defended constantly is itself proof that degrees of equality and freedom are constantly in flux.

The Constitution provides a robust statutory framework for equality. Recognising the historical disadvantages faced by women, it specifically forbids discrimination and has put in place legislative and institutional pathways to equality. However, much of the impact lies unrealised as policy and practice towards equality are fitfully implemented and mediated through a cultural lens, which is often in contradiction to the codified law. In India, where deeply held societal norms clash everyday with constitutional obligations, the churning of an essentially feudal society into modernity brings with it conflict and contradiction.

The example of marital rape illustrates this. The very label 'marital rape' embodies inherent contradictions. For one, it acknowledges the presence of the core element of rape: the absence of genuine consent. Yet, the prefix 'marital' is used to introduce legal and social absolution, as if saying: "Yes, this is rape but you can have a free get-out-of-jail-free card."

The stubborn exclusion from punishment for marital rape is based on the principle that once the knot is tied, a woman has forever given up her consent to sexual intercourse and that some kind of right of trespass accrues in the husband.

The rationale that implicitly accepts that sexual violence is permissible in the cause of holding together 'the family' forces one to ask wearily again: what legitimacy does 'family' have that is based on oppression and sexual slavery of its women? What does marriage being 'sacrosanct' really boil down to when it accommodates at its core a permission to commit acts which for any other individual would be a crime but is sanctioned within a 'sacred' space, merely because it is done by one particular perpetrator?

Ironically, within marriage, a woman's 'no' is disregarded while outside, her 'yes', where she willingly consents to relationships that deviate from societal or familial expectations, is overridden by societal or familial disapproval.

All too often, where an adult woman's status or behaviour is seen as 'unbecoming' — say when she 'runs away' or enters into a live-in relationship or marries a person of her choice against the family's consent — every obvious ruse to regain control of her, like filing police reports alleging minority, trafficking or kidnapping — is brought to bear. And, the state's institutions — who should know better — too, often respond on the basis of a shared morality rather than the provisions of law that confer upon her the absolute right to make her own choices and still be entitled to the protection of all agencies of state.

The obvious disapproval for behaviour comes through in random sermonising about 'bad' or 'rebel' or 'illicit' behaviour and invocations of religion and tradition that forbid premarital relations and, indeed, even provide for strict medieval punishments.

Sexual subjugation and restriction of individual choice are elements and means of perpetuating broader baked-in designs of inequality.

Most recently, the Uttarakhand High Court upheld the mandatory registration of live-in relationships under the state's new Uniform Civil Code (UCC). While reportedly remarking about the 'brazenness' of living together, it reasoned that the state is not prohibiting live-in relationships but merely regulating them. It essentially took the stance that if a relationship is openly lived, then it is not private.

This is false equivalence: Just because a relationship is visible to the community does not mean the state has automatic authority to demand it be formally recorded. The very idea that the state is compelling registration on pain of punishment raises serious questions about the state's overreach into personal lives and, under the guise of providing 'protection', opens the main gate to surveillance.

Worse. Instead of making sure that the state will protect everyone from threat from any quarter as it is its bounded duty to do for anyone, the law implies that it is in the state's discretion to opt for who "deserves" protection and who will be denied it.

All this runs counter to the Supreme Court which has repeatedly affirmed the validity of live-in relationships, affirmed the right to privacy and the right to live together without interference. The UCC negates it.

The constitutional imperative requires that like every other individual, women must be and feel safe, whether in public or in private. Not because they are some special category of vulnerable people, but because they are making their own choices in a rule-of-law nation. The state has a duty to actively ensure it and be active in discarding the shackles of outdated traditions that deny women their rightful place in a just and equitable society.

Culture, dynamic and absorptive, shifts unevenly to influence societies, grasping what is just and fair while discarding ossified old prejudices and practices that have long lost their rationale.

In the end, when another and another and another Women's Day rolls around, women's struggle for equality and equity will remain. These values are a practical underpinning for the country's social stability and economic progress. To respect women is to respect the Constitution. Denial is discrimination.