Guardian Angelic Moral Police
[co-authored with Bobby Kunhu]
Of all the different kinds of moral police that inhabit the land of Kerala, the species that should be feared most must probably be the ‘Guardian Angelic Moral Police'(GAMP). The GAMP is just as potent as the Goonda-Activist Moral Police (G-AMP) but in striking contrast to the latter, the former thrives on the surface precisely on values dear to the Malayalee middle-class – the sanction of law, paternal concern, state protectionism of women as the ‘weaker sex’. This makes it much harder for victims of moral policing to fight off their intrusions all of which are couched in the language of benevolent concern. We just got a taste of that from the Hon. Justice V R Krishna Iyer with his controversial Women’s Code Bill, but since so much of his language is such antiquated hyperbole, it was impossible to take any of it seriously. However, it appears that the judiciary in Kerala has more sophisticated GAMP, and recent orders passed by the bench consisting of Justices R Basant and M C Hari Rani of the Kerala High Court seem to leave no reason for scepticism.
How is one to describe Justice R. Basant? Well, he is a Permanent Judge at the Kerala High Court, but to many of us, he is better-known for his call for a more humane legal dispensation. That ‘humane’ in Kerala’s context can also mean a complete disregard for the personal choices made by full-grown, well-educated adults with skills that command high demand in the global job market is, however, what comes through the orders mentioned above. The case, which appeared before the bench consisting of Justices R Basant and M C Hari Rani, involved a 22-year-old female nursing student who had just completed her course and was about to appear for her exams, who decided to marry a 30-year-old man of another religious community. In response to this, a habeas corpus petition was filed by her father, which alleged that she was being illegally detained by her chosen fiancé. When the case was called the young couple appeared and the young woman clarified that she was not being held against her will and that she was in love and wished to marry the young man who had been accused of detaining her. They had filed an application to register their marriage under the Special Marriage Act. The judges remark in the order (W.P (CRL )No. 453 of 2011) that this is a case in which “the parties must try to settle the dispute harmoniously”. According to the order, the parents continued to argue that their daughter was not taking an “informed and voluntary decision” though it does not mention the grounds they provided for this. Clearly, given that the judges do not seem to have demanded the grounds, there seems to be a shared understanding between the parents and the judges : if a couple chooses each other without prior parental supervision then there is a prima facie case to be made to suppose that their decision — especially that of the woman — is ill-informed and involuntary.
It is clear that there are no other grounds. For example, the average ages of marriage for women and men in Kerala are 22 and 28 respectively; the couple in question are not ‘young’ by that standard widely respected by, precisely, the state. It is also evident that at least one partner, the woman, is capable of earning a salary once she gets her degree — and she is more likely to strive towards it if she chooses to stay in a relationship not supported by relatives, than in one which offers the spurious sense of security that arranged marriages conjure up. And I do not think it necessary to produce evidence for the spuriousness of this security — one just has to take a look at the data on dowry-related domestic violence. Thirdly, the couple applied to register their marriage under the Special Marriage Act, and so no cry of ‘Love Jihad’ can be made (ah, surely many of our leer-ned jeer-nalists are disappointed). The parents demanded that they be given time to “counsel, advise, and guide” their daughter and agreed that they would accept the marriage if she stuck to her decision. And strangely enough, the judges probably outdid the expectations of the parents –they ordered that the woman should accompany her parents to their home till the next date of posting. The home, it appears, had been transformed into an implicit detention centre — since the order states that only the parents and the sister of the woman in question are to stay there and no visitors are to be allowed to reside and interact with her. Her chosen fiancé was to speak with her only over the telephone and that too, between exactly 4 and 5 PM every day. That the order was guardian angelic – that it did not sanction physical coercion by parents — is evident in that it also specified that “no medicine was to be administered” to her during this stay and that the parents were not to “harass and torment” her.
It is really worrying that the court seems to think in this case that it needs to take into account and prevent only physical coercion. Despite the sophisticated understanding of domestic violence in the law that takes into account many forms other than physical violence, here, it appears that the possibility of parents exerting emotional blackmail is not considered at all. It is very common for parents to issue threats of suicide to recalcitrant offspring; there have also been cases in which veiled threats against the fiancé and other loved ones have been made. How is it that the honorable judges do not consider these — and especially in the light of the fact that they have ordered the young woman to be kept in isolation, which, it may be argued,could well be blatantly overstepping its mandate in a writ of habeas corpus?
What followed, then, was only the most predictable result. In the next hearing on the matter, the young woman, who underwent this isolation, declared that she wished to accompany her parents! In the following order dated 18 Oct 2011 the judges express their “surprise” at her decision, but what is there, really, to be surprised? What if she was emotionally blackmailed, and how can we ever be sure she wasn’t? Very predictable reactions from parents could take precisely these forms : statements like ‘We will kill ourselves — and you can live happily thereafter’; ‘do you want to be happy after ruining all your sister’s prospects?’ etc .etc. are all very potent under given circumstances. Indeed, is this not a total farce in which the judges merely act as if they are dispensing justice while they actually perpetuate, deliberately or not, the commingled evil of moral policing and the policing of the boundaries of caste and community? In this instance of GAMP, it is of course the halo of the GA that renders the MP invisible.
And most shocking of all are today’s developments. While we yet to see the order issued, very reliable sources tell us that the case was posted for today and the young woman declared in court that she wanted to return to her fiancé! Well, I suppose most predictably but utterly inexplicably, the court decided that this could not be allowed – it ordered her to stay in a government guest house for a week after which it would hear the case again! It remains to be seen if the new space of implicit confinement wreaks the miracle that her parents desire!
A host of angry hysterical responses can well be expected in defense of these efforts of the court: for example, there may be the argument that ‘love marriages’ are fragile and ‘immature’ people shouldn’t be allowed to blunder into and out of marriages. Now, this confirms patriarchal elitist commonsense that discriminates against the young, but actually stands on feet of clay. First, it may be true that people who marry for love may be more willing to part in case of disappointment because they have fewer community and material ties that bind them down. But there is no evidence that arranged marriages are internally balanced and that forced marital stability is conducive to a more balanced society. Indeed, there is plenty of evidence that internally unbalanced marriages are toxic, and end up destroying not only the partners but also the children. So there is no reason why courts should work in such convoluted — and indeed illegal –ways to ensure that love marriages do not happen. Secondly, specific to Kerala is the fact that in this post-demographic-transition context in which we live in, children are no longer insurance against old age but much more trophies to be won or lost in the desperate struggle to either retain or achieve upward mobility and community identity! It is utterly worrying that the court should appear to pander to such irrational –and indeed dehumanizing– sensibilities of an ageing society which violate the rights of children, and even fully adult children! Thirdly, what shapes our understanding of ‘immature’? What sort of a society is this, which treats a 22 year-old-woman as immature when the law allows her adulthood earlier? What sort of a society is this, in which it is blindly accepted that a 22 year-old-woman can be ‘misled’ by her chosen fiancé, but won’t suffer the same experience at the hands of people well-placed to exert emotional blackmail and veiled threats on her? And what to say of the judiciary that has ostensibly lost all sense of its own distinct location and mandate, above the cacophony and confusion thrown up by such uncivil society?
Indeed, there used to be clear-sighted people in Kerala who could cut through such nonsense: for instance, one of the earliest feminist voices in Kerala, K Saraswati Amma. Reflecting in the 1950s on the need for balanced and steady marital relationships, Amma, who was deeply sceptical of the utility of romantic love to this end, concluded that for enduring marital relationships to happen we would have to allow a long period before marriage in which women and men could practice a version of ‘flirting’! She used the English word, remarking that there was no adequate Malayalam expression that could capture the nuance she wished to convey. ‘Flirting’ was not romantic love. According to her, the latter was not desirable because it disabled rational consideration before entering into relationships meant to last long. ‘Flirting’ means that you hover around the person[s] you are interested in, taking pleasure but never leaving your rational mind so that you would in the end make a reasoned decision about allowing the relationship to grow or not. But, as she noted, unfortunately and indeed ironically, romantic love was celebrated in modern Kerala while ‘flirting’ was totally disapproved as ‘immoral’ when it was actually the only way to ensure some rational expectation of a long-lasting marriage! Little surprise, she remarked, that people jumped into relationships at the first flush of romantic love simply because they were not allowed to ‘flirt’ long enough to discover whether the relationship was worthwhile or not! Hence the many failed and internally-rotting marriages!
If one may reasonably hope that Justices Basant and Hari Rani are neither pandering directly and consciously to community interests nor succumbing to the dehumanizing thrusts of an ageing society, but implicitly reiterating the now-common fear that young people choosing to cross social boundaries are ‘immature’, then it seems necessary to extend Saraswati Amma’s views than half-a-century after she put them forward. Instead of the alleged immaturity of young people who choose partners on their own, it is the immaturity of a society that does not allow them the time, the space, the resources, and the peace of mind to make rational choices of partners that ought to be blamed.But what really intrigues us is this: what would have been the reaction of this very same court, had the young woman declared that she was pregnant and past the fourth month, but actually wanted to go back to her parents?