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Mere Legislation, Awareness Won’t Help Widows’ Cause – OpEd

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There is a general perception when it comes to the plight of widows. Bereft of their husbands, an Indian widow is perceived as losing her ‘unique’ social status too. And, in this regard, there have been innumerable instances in history, mythology, movies and art to underline the pain. And, if that’s not bad enough, there’s Sati, Johar and more by way of social practice that amplify the exacerbated position of the widow – read the Hindu widow – in particular.

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In the formulation of a resolution to the issue, the British initiated a legislation under their East India Company rule legalising the remarriage of widows in all jurisdictions of India and passed The Hindu Widows’ Remarriage Act 1856, also Act XV, 1856 on 16 July 1856. Drafted by Lord Dalhousie and passed by Lord Cannings before the Indian Rebellion of 1857, it is said to be the first major social reform legislation after the abolition of Sati Pratha in 1829 by Lord William Bentinck.

Personal Laws Damage Cause

That the reality of widows, other than Hindus, in India has been in the control of personal laws and kept beyond the reach of legislation is indicative of a narrative that has been processed selectively and suggests that all is well for widows of religious denominations other than Hindus. Also, a legislation like The Hindu Widow Remarriage Act or Dowry Prohibition Laws only provide legal answers again only to those who resort to legal processes for a resolution.

Needless to say, those who seek and procure answers from within society – however archaic or closed it may seem to others ‘out’ of that society – usually will not opt for legal solutions provided by legislation. They opt for familial consultation, conciliation, and modes of resolution alternative to strait-laced legal processes. And, in that lies the impotence of a system that provides selective solutions available, and sadly, only to those to whom they are available. For the poor, unversed and weak, opting for a lengthy legal battle is just not an option, and the solution, concurrently, is kept strategically out of reach. As for those of communities beyond the reach of the legislation by sheer definition, either the going’s great or simply not covered by legislation owing to the absence of a code in the regard. Either way, legislation isn’t the solution.

The law on property for Christian and Parsi women, some bereaved after being married ‘out’ of their community, is ambiguous and under contention. In the absence of legislation in this regard, the onus of laying down the law on it rests upon the judiciary that has to bell the cat. While it may seem unjust to abdicate the responsibility of legislation on the part of the judiciary when the onus should, and rightly so, lie upon the legislature to legislate on the issue. But the legislature is, as is usually the case, politically correct in avoiding or delaying tackling the issue in question.

Resolution To End Malpractice

In context here would be the more-recent resolution adopted on 5 May 2022 by Herwad village in Kolhapur district in India banning widow malpractices and, concurrently, being replicated across Maharashtra’s villages. The attempt to ‘end’ widow malpractices by adopting a resolution through the Gram Panchayat and campaigning for a ‘law’ in this regard sounds commendable, at least in principle. There is an attempt to ‘boost awareness’ on the issue of widow malpractices such as breaking bangles, wiping off sindoor and restricting participation in social events and that too is needed. Also, the need for a law in this regard laying down penal action is being advocated widely.

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Now, there are a few issues that need to be addressed here: First, an examination of whether there ‘is’ an issue to be tackled and, if so, is it restricted to ‘a’ community, group, denomination, or state. Secondly: Is there a provision in existing law in this regard to censure such acts and/or penalise perpetrators and then. Finally, is there the need for a separate legislation in this regard, as is being insisted upon, to help resolve things? Can a resolution change one’s mindset?

When the issue is of personal honour, prestige and pratha, one must identify if there is, indeed, a legal right invested in the victim that is being infringed. Also, in case of the infringement, the onus of initiating the legal process usually lie upon the ‘victim’ of the said infringement. Can a society, ‘panchayat’ or social entity take it upon itself to raise a complaint or a dispute and initiate a criminal proceeding without the consent of the party affected? Herein lies the issue in contention. The issue of locus standi will come into play as a rule.

Legislation Provides Safeguards To Few

Legislation provides legal safeguards against losses but when brought in to affect select communities, will only create strife and discord. It was Ishwar Chandra Vidyasagar who had campaigned for Widow Remarriage by petitioning the Legislative Council then. And, despite a counter petition against the proposal with nearly four times more signatures by Radhakanta Deb and the Dharma Sabha, Lord Dalhousie personally finalised the bill. This, despite the opposition and it being considered a flagrant breach of custom as prevalent then.

That the legislature must be representative of the people who form it, is a given in a democracy. Anything above and beyond the consent of the people it aims to govern defeats the very purpose of its existence, however politically correct it may seem. Also, laws formed by the legislature must, concurrently, pass the test of Constitutionality as laid down by the Judiciary. The media, in all its wisdom, must – ideally – be balanced and refrain from falling prey to populist trend. That said, for a media to stay fair, be objective and boast of numbers as a prerequisite to qualify for its success, is a paradox of sorts. And then, there’s the burden of being politically correct too, in the age of Social Media platforms, failing which there’s the risk of being trolled and virtually destroyed.

Merely Passing A Law Won’t Help

Simply passing a law permitting Widow Remarriage that too for ‘a’ select community will not solve anything. Also, calling for reforms by way of creating laws in the regard and passing resolutions at a Panchayat doesn’t really change things at grassroots level. The loss of her husband for a widow is a personal one. The process of grieving must be left entirely to the one who has suffered the loss and, at best, her immediate family. Where transgression of personal rights is concerned, there are provisions within the existing Indian Penal Code to address issues of ‘Cruelty’, ‘Criminal Intimidation,’ ‘Simple and Grievous Hurts’ and attempts to do so as and when applied.

It’s imperative to identify that, where widows are concerned, the domination of males, ironically even females of the family and society insisting on adhering to cruel customs, is excessive to say the least. When women comply with coercive demands and cruel acts, in life, marriage and in widowhood, there’s poor little that can change for them. Passing resolutions, politicising situations, even playing on populist sentiments, may only make things ‘seem’ better. Issues of awareness can be resolved by way of education and well-sounding laws can be promulgated by populist legislators but at the core of all this lies…sensitisation. The Hindu Widows Remarriage Act was passed in 1856 and that we are, today after 166 years, in 2022, talking of a law banning social customs such as breaking bangles, wiping off her sindoor and stopping her from partaking in social events, says it all. 

We’re missing the point.

Gajanan Khergamker

Gajanan Khergamker is an independent editor, legal counsel and documentary film-maker with over three decades of media-legal experience across India. He is the founder of DraftCraft – an India-based think-tank. Through strategic writings and columns across global media; niche workshops held for the benefit of police personnel, lawyers and media students as well as key lectures held at corporate venues and in Law and Mass Media colleges and universities across India, he analyses and initiates 'live' processes that help deliver social justice through the media and legal channels. He trains students, journalists, lawyers and corporate personnel to ideate, integrate and initiate the process of social justice which “isn't the sole responsibility of the State”. He holds legal aid workshops and creates permanent legal aid cells for the deprived across India through positive activism and intervention. He furthers the reach of social responsibility by initiating strategic process by offering consultancy services to corporates in the rapidly-growing CSR scenario. To further the reach of social responsibility, Gajanan Khergamker works closely with state entities, law universities, educational institutes, research think-tanks, publications and media houses, corporates and public-spirited individuals. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs and diversity.

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