Denial of rights

The anti-women values, customs and usages were directly targeted and remedied in the Constituent Assembly by the founders.

Published : Apr 27, 2016 12:30 IST

June 21, 2013: A holy man blesses devotees at the Kamakhya temple during the Ambubachi festival in Guwahati. The festival marks the menstruation period of the goddess during which the sanctum sanctorum of the shrine remains closed.

June 21, 2013: A holy man blesses devotees at the Kamakhya temple during the Ambubachi festival in Guwahati. The festival marks the menstruation period of the goddess during which the sanctum sanctorum of the shrine remains closed.

The current controversy about the constitutionality of banning women between the ages of 10 and 50 from entering the Sabarimala temple in Kerala and other similar cases have raised questions about the sanctity of some of the prevailing anti-women religious practices and usages. This also invites us to revisit the age-old tension between universal values and culture-specific relative values.

It is claimed that the prohibition of women from entering temples is practised in other temples too and is attributable to the alleged impurity of women during menstruation. There are also instances where women are considered “ritually unclean” while menstruating and are not allowed to visit temples or pray to deities. It is reported that some women themselves share this view of ritual impurity. We may even find educated women who consider themselves impure during their menstruation cycle. In a survey conducted by the scholar Aru Bhartiya in 2013, 92 per cent of the women said that they did not think they were impure during their menstruation cycle and that they should not feel guilty about praying.

Many authors have identified mythological stories intended to perpetuate the ideas of impurity of women and untouchability against them. One such story is that women got rajaswala dosha (menstruation) when Indra murdered Vritra, the three-headed son of Tvashtri. This involved the killing of a Brahmin by Indra, and thus he was guilty of brahmahatya dosha . Indra got rid of this dosha by distributing it among the land, water, trees and women. From that day onwards, women started menstruating every 28-30 days. Thus, menstruation was considered a dosha . There are other similar stories and beliefs, such as the tamasic (dark or inappropriate) nature of menstruation. Thus, touching a menstruating woman is considered a tamasic act. During menstruation some women are not allowed to enter the kitchen and temples, sleep during the day, bathe, wear flowers, have sex, touch other men or women, talk loudly or touch pickle. According to some beliefs, pickle touched by a menstruating woman rots away. And in some regions, menstruating girls are not allowed to touch the basil (tulsi) plant as basil is considered holy.

All historical evidence, including available literary works, shows that on one hand women were described as goddesses, and on the other, they were oppressed, discriminated against, excluded and even treated as untouchables. There have been anti-women provisions in the law, and instances of great injustice to women abound in Indian history.

This can also be looked at as a realistic tension between two trends working simultaneously throughout the country’s cultural history, each one attempting and succeeding to be predominant at different times. It may also alert us to the fact that the values of dignity of the individual and fraternity were gradually losing their battle throughout the march of human civilisation. The shift to the patriarchal system and values may be one of the symptoms of such a malevolent malaise. The pre-Harappan and Harappan stages of civilisation clearly show that it was not an anti-women society dominated by patriarchal values.

The deterioration of the status of women can be seen in all periods of Indian history, though in the later ages the degradation was much more apparent and rapid. Even in the early stages of civilisation, represented by Vedic literature, there was a school of thought that held women in positive hatred. In the Rg Veda , there are instances such as this: “Indra himself has said that the mind of woman brooks not discipline, her intellect hath little weight” (VIII.3.17). Addressing the royal sage Pururava, the celestial woman Urvashi “confesses” about the nature of her own gender, that with women there can be no lasting friendship and that the hearts of women are the “hearts of hyenas” (X.95.15).

Women were treated as possessions or property even in the Vedic age. In a very clear verse, Indra is stated to have taken and possessed all castles, as one common husband doth his spouses ( Rg Veda , VII.26.3). Enumerating things which a man must possess, Manu, the lawgiver, includes women as one of the things of possession ( Manusmriti , II.240). Yajnavalkya, another lawgiver, advised men never to entrust three things to the control of others, that is, riches, books and women, for they are spoiled and defiled by them (III.205). Bhishma, the great preceptor in the Mahabharata, declared that “according to the injunctions of scriptures, the husband should regard the wife as an acquisition, due to his own pristine deeds or to what has been ordained by God”. In another place, he has classed women with riches and every other possession or property coveted by thieves ( Mahabharata, Anushasan Parva , 44.27).

In the Atharva Veda , the husband proclaims that his wife has been given to him by God to serve him and to secure progeny. He further calls her as his poshya , or dependant (XIV.1.52). The Upanishads consider women to have been born for appeasing man’s instinct of pleasure. Man, being alone in the beginning of the universe, did not find any joy in his life and longed for a companion. He got one in the shape of his wife, who gratified all his desires and secured for him all pleasures ( Brihadaranyaka Upanishad , 1.4).

In Manusmriti , it is stated: “Through their passion for men, through their mutable temper, through their natural heartlessness, they become disloyal towards their husbands, however carefully they may be guarded in this world....

“(When creating them) Manu allotted to women (a love of their) bed, (of their) seat and (of) ornament, impure desires, wrath, dishonesty, malice, and bad conduct” (9.15-17).

The Vasishta Dharmashastra has a lot against menstruating women: “Those brahmanas in whose houses menstruating women sit, those who keep no sacred fire, and those in whose family there is no srotiya —all these are equal to shudras ” (5.9).

It is an undeniable fact that anti-women values and structures are very ancient and deep-rooted. The menstruation-related untouchability, exclusion and discrimination are part of the overall anti-women ideas embedded and entrenched in the cultural and religious psyche.

However, our cultural and religious history shows that there have been constant and consistent mainstays of universal human values battling against these anti-wome beliefs, practices and myths. There has been a categorical message that the female body is not to be problematised as a site of impurity and victimised for its potential fertility. Menstruation was considered a normal, natural female physiological function. In many parts of south India, a girl’s first menstruation was celebrated. Depictions of a young woman kicking an asoka tree imply that it was her shakti that caused the tree to bloom. In tantric rituals, probably originated from tribal and folk cultures, menstrual blood was one of the offerings made to the goddess.

Different areas of India have had notions of the menstruating goddess. According to the historian N.N. Bhattacharyya, the auspiciousness of menstruation, representing potential fertility, is symbolised by blood or the colour of blood and is regarded as sacred. Deities and sacred objects are daubed with red colouring as a part of ritual worship. Within Indian culture, red signifies auspiciousness and potential growth. These ancient religious ideas and symbols are considered to be linked to the blood of menstruation.

The anti-women values, customs and usages were directly targeted and remedied in the Constituent Assembly by the founders. “The average woman in this country has suffered now for centuries from inequalities heaped upon her by laws, customs and practices of people who have fallen from the heights of that civilisation of which we are all so proud....” These were the words of Hansa Mehta, one of the founders of the Constitution, while participating in the discussion on the Objectives Resolution on December 19, 1946. Rajkumari Amrit Kaur, another founding mother, also challenged several customs against women practised in the name of religion and was anxious that no clause in any fundamental right should make impossible future legislation for the purpose of wiping out these evils.

When we accepted universal values as the basis of our fundamental rights in the Constitution of India, we were aware of the anti-human practices, customs and usages masquerading in the name of religion.

The struggle to exorcise the ghosts of anti-women usage was a long one, which somewhat culminated in principle by the creation of the Constitution, which acknowledges with regret that there is denial of dignity, justice, freedom and equality to women and that our society and culture are patriarchal and anti-women. At the same time, it has pledged to remove inequality, injustice and patriarchal bias against women. This is reflected throughout the Constitution, especially in the fundamental rights, directive principles and fundamental duties. Despite these, it is shocking that women continue to be objectified, oppressed, exploited and made victims of unimaginable atrocities.

But can the ghosts of inhumanity against women come back through the back door as essential or integral parts of religion? Can any group or institution reasonably claim to practise these as its right to manage its own affairs in religious matters? Should a civilised society allow such practices that fly in the face of universal human values? Should we not treat constitutional morality as inclusive not only of public order, morality and health, but also of all the universal values enshrined in fundamental rights or human rights?

Before the framing of the Indian Constitution, the General Assembly of the United Nations agreed on a few universal human values as published in the Universal Declaration of Human Rights. After the acceptance of this declaration, it is presumed that nobody would reasonably subscribe to any value that is contrary to any of those universal human rights. It is understood that not only nations and sovereigns but no human grouping, whether religious or otherwise, would be able to profess or practise any beliefs or usages that are contrary to any of the universal values. The Constitution incorporates these universal values under fundamental rights.

A global conference of 250 international religious leaders met in Chicago in 1993 and produced a document titled “Universal Declaration of a Global Ethic”. In it, the Universal Declaration of Human Rights was reaffirmed. Thus, it is generally accepted that even religious practices and usages are subject to some universal values. In other words, if any religion or denomination has any practice contrary to any of the universal values, it would be deemed that it cannot be an essential or integral part of that religion or group. Whatever is diametrically opposite to any of the human rights would be deemed to be anti-religious. This does not mean that the universal human values alone should be the religious values. There can be a lot of relative and diverse practices and usages which may not flow from or are not akin to those values but yet are not contrary to those ones.

With the world explicitly accepting the Universal Declaration of Human Rights, there is a presumption that human rights are based on universal human values. As long as some values are considered universal as the basis for the universal human rights, the values or principles which are contrary to these cannot be allowed or permitted even in the name of the relativity principle, cultural principle or pluralism principle. What the Constitution and any human rights regime contemplate is not a cultural federalism but a regime of human rights or constitutionalism based on a composite culture. That precisely is our aim of unity in diversity. All cultural pluralism is permissible and even necessary as long as none of those diverse cultural or religious values militates against any of the accepted universal values.

Thus, what our composite culture requires and the Constitution mandates is a regime of relative universality or “variform universals”, as Walter Lonner called it, or a regime of human-rights-sensitive pluralism. But when the members of the majority community object to be subjected to such a regime, how much more difficult would it be to persuade the defensive and apprehensive minorities? Is it not high time to banish a few gods of all communities, both majority and minority?

M.P. Raju is a lawyer in the Supreme Court of India and the author of books such as Minority Rights: Myth or Reality and Uniform Civil Code: A Mirage?

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