The recent ruling by the Supreme Court that even an illegitimate child must take the caste of its father has led women's activists to protest the continuing inequalities in property, custody and guardianship law in India, all of which continue to be determined through male descent
The case of Sobha Hymavathi Devi from Andhra Pradesh is curious, to say the least. An illegitimate child, Sobha's mother, who belonged to the Bagatha scheduled tribe, had a brief live-in relationship with Murari Rao, an upper-caste man. Rao soon moved on to another woman, but not before Sobha was born.
For all practical purposes, Sobha was brought up as part of the Bagatha tribe; she derives her identity from them. She says: "My mother brought me up. Everything that I have become today is because of her support and teaching." She later went on to marry a man from the Bagatha community.
Sobha's decision to contest an MLA election on a Telugu Desam ticket from Sringavarapukota constituency in 1999 stirred up a hornet's nest. Her rivals challenged the legitimacy of the election, claiming that Sobha had no business standing from a reserved constituency as her father belonged to a 'forward' caste.
The matter was taken to court. Deposing before the Andhra Pradesh High Court, Sobha pointed out that for all practical purposes she was a tribal; her mother belonged to the tribal community and she had imbibed all its customs from her childhood. Sobha's rivals took the stand that children born out of wedlock could not be allowed to disassociate themselves from their biological father's identity.
With the Andhra Pradesh High Court ruling against her, the matter was taken to the Supreme Court, which recently also ruled that children born out of an illegitimate relationship between a high-caste man and a woman from a scheduled caste or tribe would acquire the categorisation of the father.
The Supreme Court bench, led by Chief Justice R C Lakhotia, pointed out that "permitting a non-tribal, under the cover of marriage, to contest such a seat (reserved) would defeat the very object of such reservation". The judgment upheld the Andhra Pradesh High Court order, vis-Ã -vis a child gaining its identity from its biological father.
The judgment created a storm of protest from women's activists. Dr Tiplut Nonbri, who teaches sociology at the Jawaharlal Nehru Institute (JNU) and herself a tribal, believes that in a case where a child identifies herself as a tribal she must be allowed to acquire tribal status. However, Nonbri is against making blanket judgements on what is obviously an extremely sensitive issue. "Cases of identity must be treated on personal merit. We cannot have a blanket law," she says.
Former National Commission of Women (NCW) chairperson Poornima Advani is more up-front. "I believe, in this case, very limited facts were placed before the Supreme Court. As a result, the larger issues have not been dealt with in this judgment. What is the fate of children born to unwed mothers who are victims of sexual exploitation? Who is going to determine what their caste will be?" she asks.
Advani also wonders how judgments such as these will serve to ensure equality between men and women, something guaranteed by the Constitution. She says: "To date, the political leadership has failed to change what should basically be described as the Victorian, and not Indian, Penal Code even after 57 years of independence. Laws legislated by the British in such sensitive areas as marriage, inheritance and adoption continue to be in use. Under such circumstances how can we expect the woman's lot to be improved? The political leadership should have come forward to support Sobha in her fight for justice," she says.
Women activists in Andhra Pradesh have been equally condemning. Malini, who works with Araynk, a tribal women's organisation, says: "This is a case of natural justice since the mother brought up the child. The central government should bring out legislation making a provision to the effect that a child above the age of 12 should be allowed to choose the caste of either parent."
Vaneja, another Hyderabad-based activist, points out: "Once the child has been declared illegitimate and the mother denied the status of a wife, how can the child inherit the caste of the father? It has been clearly established by law that the mother is the natural guardian of the child and, naturally, the mother's caste should go to the offspring."
Professor Dipankar Gupta, also from JNU, believes it is impossible to pass blanket judgement on such a case. He maintains that reservations entitle an individual to certain advantages and these should not be misused, especially as they are aimed at improving the lot of those who have been underprivileged for centuries. "But in a case where the father's role has been merely biological, the advantages of reservation should be allowed to accrue to the children," he adds.
Brinda Karat, vice-president of the All India Women's Democratic Alliance, believes Sobha's case reflects the continuing inequalities in a slew of laws, including property, custody and guardianship, all of which continue to be determined through male descent. Karat is willing to concede that tribal land must remain within the tribal community and not be transferred to non-tribals via maternal alliances. But she decries the double standards being practised by the law. "If a tribal woman marries a non-tribal, her progeny will not have rights to the land. But if a tribal man marries a non-tribal, then her kids will have rights to the land," she says.
These same double standards were practised in Jammu and Kashmir when the government introduced a law denying women property rights if they married non-Kashmiris. The reverse would not be the case if a man married a non-Kashmiri. "The law was reversed due to political pressure exerted by women's groups," Karat says.
Other members of the NCW have also found the judgment gender-discriminatory. Nirmaa Sitaraman believes there is a lack of clear legislation on the entire subject. Nor does this judgment have any precedent. "We are planning to introduce a private members bill on this matter in the coming session of Parliament. This will be a first step in order to get a review petition placed before the Supreme Court," says Sitaraman.
While the debate rages on, Sobha has become completely disillusioned by the whole experience. "Given my background, contesting an MLA election was a daunting task. I expected the judiciary to be more sympathetic," she says.
Activists believe such a narrow interpretation of identity is not healthy for democratic conventions. They cite the example of how, seven years ago, the state government of Arunachal Pradesh decided to go about codifying customary practices in order to help preserve tribal identities. It was a laudable effort, but when activists pointed out that codification of polygamy could not be permitted the government decided not to pursue the matter further. In the same way, while tribals do require support it should not be at the cost of gender equality.
(Rashme Sehgal is a Delhi-based writer and journalist)
InfoChange News & Features, February 2005