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When lawmakers fail

SC judgment on unwed mothers is another instance of judiciary stepping in where legislators have feared to tread.

By: Express News Service |
Updated: July 8, 2015 12:11:56 am
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The Supreme Court struck a second blow on behalf of Indian women in a matter of a week, ruling on Monday that an unwed mother was not required to seek consent from the father to become the sole legal guardian of her child. If she does not wish to disclose his name, she doesn’t have to, and authorities must issue a birth certificate that lists only the mother’s name — she is only required to furnish an affidavit to this effect. This would mean, as the court explained, that the previously all-important box under “father’s name” on school forms, passport applications and assorted official paperwork can be left blank — addressing one crucial aspect of the moral opprobrium encountered by single mothers.

While no single legal judgment can take away the social stigma attached to being an unwed mother, Justices Vikramjit Sen and Abhay Manohar Sapre have reaffirmed the apex court’s position as the defender of human rights. Just last week, their colleagues, Justices Dipak Misra and P.C. Pant, unambiguously stated that there could be no compromise between a rape victim and the criminal who committed the act, putting to bed the horrific notion of forcing a rape victim into rounds of mediation with her rapist, or even encouraging them to marry. Earlier, in a separate case, the court had deemed both the mother and father to be the natural guardians of a child, holding her welfare to be the primary determinant.

The SC has routinely — and necessarily — expanded the rights available to women, and to other minorities, in no small part because the executive and legislature have together displayed a lack of vision in keeping pace with a changing India. In a landmark April 2014 judgment, the court recognised transgenders as a third gender and directed legislators to provide the community all the rights and benefits given to socially and economically backward classes. In 2013, the court acknowledged that the abominable “two-finger test” used on rape survivors violated their rights, and prohibited its practice. It extended the protections of the domestic violence act to live-in relationships in 2010. In 2006, it ruled that a rape accused could be convicted on the strength of the evidence given by the victim, even if there was no medical evidence to suggest rape. These are just a few instances in which the judiciary has stepped in to fill the void left by policymakers, who have failed their most vulnerable constituents. But perhaps partial redemption awaits — the court reversed a Delhi HC ruling on Section 377, which criminalises homosexuality, and left the task of repealing it to Parliament. Will politicians take the cue?

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