Blast from the past

Every once in a way a verdict from one court or other indicates how indifferent the justice system is to ensuring substantive equality between men and women. But when the court in question happens to be the highest in the land, our concern is obviously heightened. Friday’s Supreme Court verdict ruling, that a child born out of an illegitimate relationship between a high caste man and a scheduled caste/tribe woman takes on the father’s caste, is appallingly regressive and goes against the spirit of several apex court verdicts which have striven hard to translate the Constitution’s promise of equality into reality.

The central issue in this case is a woman’s equal right to the guardianship of her child. By failing to recognise it, the Supreme Court has reiterated the traditional and unequal role of a mother within traditional society, and reinforced the existing power structure within the family. In fact, it has taken a step back, because the mother’s guardianship has generally been acknowledged in cases of children born out of wedlock — on the simple principle that while the fact of a woman having mothered a child cannot be disputed, a man’s paternity can. If the honourable judges were driven by the charitable impulse to accord a higher caste to children of “illegitimate” unions, the verdict still does not work. The odium of caste cannot be addressed by sanskritised attitudes and processes.

Incidentally, the Supreme Court had in the Githa Hariharan versus Reserve Bank of India verdict recognised that mothers and fathers have a similar status as natural guardians under the law. In fact, the judges in that case had also invoked the Convention on the Elimination of All Forms of Discrimination Against Women and the Beijing Declaration which directs all state-parties to take appropriate measures to prevent discrimination of all forms against women. This was five years ago. Instead of furthering the process of ensuring gender equality, the present verdict appears like a blast from the past. Most unfortunately so.