BENGALURU: Several social policies and laws off late have been undergoing changes and amendments, and certain archaic and regressive provisions have been retained or added citing India’s ‘social reality’ and ‘culture’ as the reason. There have in the past also been several such instances when India’s culture and social reality have been used as a reason to justify regressive legal amendments and provision.
To point out a few, most recently the Union Home Ministry told the Delhi High Court that the 1949 law which permits men to have sex with girls above the age of 15 years if they are married cannot be changed given India’s social realities. In the amendments proposed to the Child Labour (Regulation and Prohibition) Act, 1986 the provision for children to help out in ‘family based enterprises’ was justified by stating that the ‘social fabric’ of society must be kept in mind and therefore children may be permitted to assist in family based enterprises. Previously, Maneka Gandhi, Minister of Women and Child Development kicked up a row by stating that ‘’the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to...mindset of the society to treat marriage as a sacrament, etc."
While it is important to keep these socio - cultural realities in mind while drafting and framing policies, they cannot be used as an excuse to create or retain provisions that are a violation of rights and which put a certain population of society in grave danger, making them vulnerable to oppression, violence, injustice and distress. While acknowledging this in the formulation and implementation of effective policies, it is also important to acknowledge that certain social realities and cultural practices need to change in order for there to be greater equity and social justice.
Perhaps policy makers need to, while adding or amending provisions - that are retrogressive and do not ensure social justice as they are aimed to- must also provide for an action plan to bring about a change in these realities and cultural practices. Several laws and amendments talk of sensitization and creating awareness, however, they provide no action plans or guidelines as to how these provisions will be implemented and these ‘social realities’ addressed. While so much attention is paid to the socio – cultural factors of the country, such little is done or provided for on the ground. Rather than formulating policies based on the problem and its symptoms, what the Government needs to look at is the root causes of the problem and make provisions directed towards addressing these rather than following a symptomatic approach.
In a country like India, where there exists such vast socio – cultural diversity, it becomes even more important for policies to be evidenced based rather than being a simplistic response to problems. In the course of the debate on the Mental Health Care Bill, 2013 in the Rajya Sabha during the monsoon session of Parliament several members of parliament raised the point that there exists no data on the number of persons with mental illness in India or the kinds of mental illness that are prevalent. It then raises the question about how in the absence of such data, concrete evidence and lack of insight on the ground realities, are these laws and policies being introduced and amended? The writer while in conversation with a member of Parliament from the Rajya Sabha inquired about where the government gets its data and based on what information are the briefs prepared for the Parliamentary debate, to which he responded saying ‘the briefs are prepared based on Google searches.’
The affidavit, filed in response to a PIL against marital rape said “It is submitted that the social, economic and educational development of the country is still uneven and child marriages are taking place. It has been decided to retain the age of 15 years under the exception 2 of Section 375 so as to give protection to husband and wife against criminalising the sexual activity between them.” As per Section 375, sex (even consensual) with a girl below 18 is rape; however, Exception 2 under Section 375, gives immunity to a man who has sex with a girl above 15 years of age in case of them being married; protecting men from being charged with marital rape. While the statement in the affidavit correctly points out that the ‘social, economic and educational development of the country is still uneven’ by admitting that child marriages are still taking place the Centre is also admitting to their failure of the implementation of laws regarding Child Marriage which the Delhi High Court seems to have not questioned. With continuing child marriages, which are as the Home Ministry’s affidavit said ‘…[child marriage is] discouraged, marriage below permissible age is avoidable but not void on the account of social realities’ as quoted by the Indian Express, how are the Home Ministry, National Commission for Women, the Delhi High Court and Policy makers expecting these social realities to change?
Rather than the court giving directives for an action plan to change and address these ‘social realities’, it has been accepted as a justified reason for retaining a provision which contradicts not just the Juvenile Justice Act and Protection of Children against Sexual Offences (POCSO) but also the United Nations Convention of the Right of the Child.
Instead of simply retaining or including such provisions, the judiciary and lawmakers in need to more actively and urgently explore how these ugly ‘social realities’ must be addressed and changed rather than maintaining status quo. Issues pertaining to social justice and welfare must be addressed in a comprehensive manner, through evidenced based researches to back policy provisions which are more action oriented and provide guidelines for bringing about active change, rather than brushing them under the carpet by labelling it as a cultural issue. Social realities and culture cannot be used as a means to justify injustice and the rights violations of certain sections of society.