There are two popular arguments for affirmative action. These are the Argument from Equality and the Argument from Diversity.
The Argument from Equality says that people from different genders, races, castes etc are the same. Members of these groups are equally hardworking, intelligent, enterprising etc. If one group is underrepresented in a field, it isn’t because of the personal characteristics of that group. Blame typically falls on “discrimination” – people treating individuals differently on account of prejudiced beliefs about their race, caste, gender etc. Affirmative action is required to fight such harmful prejudice.
The Argument from Diversity says that people from different social groups aren’t the same. They have different experiences, ideas, strengths etc. Members of a minority group have insights that members of the majority group don’t. Decision making, learning etc is better when there are a variety of perspectives at the table. Thus, preferential treatment for underrepresented minorities is desirable.
Both arguments conclude that institutions should provide favorable treatment to underrepresented social groups. However, they have opposing premises. The Argument from Equality assumes that all people are the same. Thus, under-representation is an injustice. The Argument from Diversity assumes that people from different social groups are different. Thus, some people to have insights that others lack.
A priori, there is nothing fallacious about either argument. However, a person must choose which of the two opposing premises he or she agrees with. If women are different from men, then perhaps it is these differences, rather than workplace discrimination, that causes women to earn less than men. The Argument from Equality fails. If women are the same as men, there is no valuable insight that they bring that men lack. The Argument from Diversity fails. You can either argue from equality, or from diversity, but not both.
1. Missing white woman syndrome. [West-centric]
2. School shootings as non-political terrorism. A much neglected perspective. [US-centric]
4. Nobody wants to host the 2022 Olympics. Overstated, which is to be expected from a Gawker outlet, but with a grain of truth.
3. What is the most controversial song of the decade? West-centric.
5. 4% of men commit 90% of rapes. Another 2% are responsible for the remaining 10%.
In other words, 94% of men commit no sexual violence. US study.
Farhan Akhtar makes a advertisement with the Delhi police, urging men to protect women, and urging women to call 100:
It did not sit well with some folk, such as Tanushree Bhasin:
… I found myself cringing every two seconds. All the points he raised, all arguments he made stank of thinly veiled sexism. So there he was talking about rape, violence, and inequality, without once questioning the underling patriarchal tone of the advertisement itself. “Yeh humaari zindagi mein kai kirdaar adaa karti hai — ma, behen, patni aur beti ban kar. In ki suraksha karna hamari zimmedaari hai,” he says. What this implies is that the narrative is still written by men, the story is still about men; women simply make appearances in their lives to serve them as mothers, sisters, wives and daughters. This age old argument says as clearly as possible that violence against women is not to be condemned because it is wrong to treat any individual that way; instead it is seen as man’s failure to protect his women — an embarrassment to any real man.
Interestingly, Farhan Akhtar is perfectly aware of the tone of his campaign:
Unfortunately, we live in a country entrenched in patriarchal norms. Now, if you were to see a woman being harassed on the streets, would you close your eyes because it might be condescending to her if you, as a man, were to try and help? In an ideal world, men wouldn’t have to be ‘the protectors’. The best we can do today is to change whatever enables violence against women.
Bhasin’s response is condescending dismissal: “A case of misguided feminism no doubt.”
Yet, Akhtar is, if not categorically right, certainly not categorically wrong. You have a problem: violence against women. One way to curb it is to create norms that induce men (who may lack the empathy or experience to understand what women are undergoing) to intervene. One way to do so is to create advertisements that tap into the existing “men should be protectors” rhetoric. The upside of this is potentially reduced casualties. The downside of this is that you end up re-enforcing existing gender norms, which hurt women in other ways. If you think that violence is a more serious weighty problem than other forms of discrimination, or that the advertisement has a large impact on male behavior and a negligible effect on gender norms (after all, it’s just one message among millions of “patriarchal” messages), then making that advertisement is the welfare-enhancing thing to do.
I’m not saying I buy this argument – I’m generally skeptical of the impact of advertisements on human behavior – but I do think it’s valid enough to deserve a serious response such as “The long term negative effects of this advertisement outweigh the short term positive gains.” Instead we get this drivel:
… the point is not to delineate gender lines again, and invent chivalrous men instilled with a protectionist spirit; what we need is quite the opposite — a complete negation of such lines drawn between men and women. … So long as gender sensitisation campaigns continue to speak in a language that is embedded in patriarchy, the very agenda of preventing violence against women will be continuously subverted.
Bhasin also cites two other examples of campaigns that try to improve the lives of women by tapping into existing gender norms: Akhtar’s own MARD campaign, and an ad from Apollo Hospital urging men to encourage their partners to get tested for breast cancer. All this really proves is that there is a trade-off between improving the lives of women within the existing system and dismantling the system. Whether to opt for the first or the second is not a trivial decision: if dismantling the system is difficult (it is) and if violence persists even in an atmosphere of relative equality (such as in Sweden, which has one of the highest rape rates in the world*) then one may sensibly conclude that women will be better off if one takes steps that – despite re-enforcing the system – make’s them better off within it.
This applies to many other debates as well. If one observes that divorced women suffer an enormous decline in their standard of living (because they can’t work, and don’t get adequate alimony) then one can either push to dismantle the homemaker/breadwinner division of labour (which is hard) or one can argue that the breadwinner owes the homemaker for services rendered, and therefore alimony should be adequate**. The latter option, because it’s based on existing cultural norms, is easier to push through. Downside: the campaign will have the effect of re-enforcing (at the margin) the cultural norms that caused the problem. Upside: it lessens the intensity of the problem.
One can have a serious discussion of long-term costs and short-term benefits, of how hard or easy it is to dismantle systems, or about whether such moves actually improve the welfare of women, even in short-term, but only with people are willing to think deeper than Bhasin and her ilk.
*Although I personally think this is the result of a high reporting rate, combined with a broad definition of what constitutes “rape.”
** A thank-you to Radhika Chitkara, a women’s issues activist/lawyer, for this example. She insists that I misunderstand it.
Note: My views on this matter have changed substantially since this post was first written. Please see the updates at the bottom.
At first there was the Hindu article claiming that the Madras High Court had decreed that couples having pre-marital sex are considered married. Then Firstpost called the article sensationalist, insisting that merely having sex does not, even now, mean you’re married. Who’s right? I got my hands on a copy of the order and, as it turns out, The Hindu wasn’t off. You can read the order here* and decide for yourself. My analysis is below.
Imagine that you’re a judge at a family court. One day, a woman shows up claiming to be the wife of a man who, she says, has deserted her. The man denies being married to her. Here’s the problem – in India, marriages are rarely registered with the government, even though they’re supposed to be. If a marriage sours, the wife (assuming she’s not the breadwinner) is entitled to maintenance – but how does she prove that she’s the man’s wife when she has no formal document to establish that the marriage occurred? Few divorces are “amicable”, and it’s not a stretch to imagine a man being bitter enough to deny that he ever married her. What do you do?
You, the judge, may want to rely on other ways to confirm that a marriage exists, such as ration cards (which list the entire family) or birth certificates (which list both parents). This problem is what led the Supreme Court to declare that women in “live-in relationships” are entitled to maintenance – they were trying to protect women in undocumented marriages.
In this vein, Firstpost believes that this is merely an attempt at “awarding rights to couples who may not legally married but have lived together in every other way as spouses”, and to say that you “can’t live with a woman for years, have kids with her and then dump her without support.” And, indeed, the Madras High Court did, in this specific case, attempt to establish the man’s husband-hood using documents like the “Live Birth Certificate” etc.
Yet after it did so, the court presented an opinion so broad that any two people who have ever had sex are considered married, full stop. On page 11, the relevant opinion starts:
(vi) … The court is of the view that if a women [sic] aged 18 or above has a sexual relationship with a man, aged 21 or above, and during the course of such relationship, if the woman becomes pregnant, she would henceforth be treated as the ‘wife’ and the man would be treated as the ‘husband’. Even if the girl does not become pregnant after having such sexual relationship with a man but if there is strong documentary evidence to show the existence of such a relationship then also the couple involved in such acts would be termed as “wife” and husband”.
The Court’s view is crystal clear – if you’ve had sex with someone, the other person can claim that you are now married, regardless of whether the woman is pregnant or not (and the unwilling party can be either a man or a woman). The tone and phrasing are general. The court does not qualify it’s opinion. This is not something that can be understood only in context. This is a not an opinion that applies only to this case. It can be interpreted as a rule to be applied in such cases.
What are the implications of this? If you’re a man (and men are singled out), your exes can prevent you from getting married:
(vii) The Court is of the further view that even after such a sexual relationship, if both decide to separate due to difference of opinion, the ‘husband’ cannot marry without getting a decree of divorce from the Court of law against the ‘wife’. He could not marry a second time without getting such a decree as it had been established that sexual relationship had existed between them and consummation had taken place.
The next point is relevant:
(viii) This Court is of the further view that if the bachelor has complete 21 years of age and the spinster 18 years of age respectively then they acquire the freedom of choice as guaranteed by the Indian Constitution. Consequently, any couple who choose to consummate their sexual cravings then that act becomes a total commitment with adherence to all consequences that may follow except on certain exceptional considerations. Therefore the marriage formalities … is only to comply with each one’s respective religious customs for the satisfaction of the society. However, if any couple, subject to their attaining the mandatory age of freedom, who indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as “husband and wife”, as a result of their choice of freedom …
Pre-marital sex is now an oxymoron**.
Firstpost then confuses the question of how to decide if two people are married or not with the Supreme Court observation that pre-marital sex is not an offence and concludes that the “incendiary statements” have no legal value. They do have legal value – pre-marital sex is not an offence, but in the state of Tamil Nadu any two people who have sex will be considered husband and wife in the eyes of the law, if the order is taken seriously. A precedent has been set.
This might seem trivial – if you and your partner don’t want to be married, who’s going to tell you otherwise? However, there are three very real problems. Firstly, abuse – as I’ve noted above, a bitter ex can prevent you from leading a normal life (if you’re a man). Secondly, unwarranted entitlements – just as paying for dinner doesn’t entitle you to sex, having sex doesn’t entitle you to any further commitment. This order undermines this norm, for both men and women. Thirdly – reproductive rights. Abortion is legal in India, which means that women are entitled to terminate a pregnancy that arises out of pre-marital sex, regardless of what the man wants. This seems fine to me. In contrast, in the state of Tamil Nadu at least, if a woman decides to bring a child (conceived as the result of pre-marital sex) to term, the man is obligated to support her, whether he wants to or not. Thus, while women have the right to choose whether they want the burden/gift of a child, men do not. This is both wrong and unfair.
Summary – this judgement is, overall, an admirable effort to solve the are-they-married-or-not problem. However, it’s unnecessarily blunt, somewhat careless, and goes far beyond merely protecting women in undocumented marriages. The relevant passages do little to further safeguard the rights of such women, while exposing men (and some women) to abuse. I may be wrong, of course – law isn’t my domain. If I am, please let me know in the comments.
UPDATE: I’m sure this is not what the court intended, and I’m not even sure that this will be outcome – we live in a common law system and future judgements may render this one moot. But maybe not. I believe that this opinion can be used as a precedent, which is what would lead to all the problems listed above. However, I’m not aware of how precedents are set and used, so I may be wrong.
UPDATE: Apparently, I’m mistaken in my belief that the entirety of HC judgments gain enormous precedence value. Questions are placed before courts – in this particular case it was “Are these two married?” The portions of the judgement that directly answer these questions are called the ratio decidendi of the case, and are binding as precedents. The remainder is called the obiter dicta, and consists of the random bits of pontificating that judges do. The bits of the judgement that I quote are more obiter than ratio, and so do not have much precedence value. Hat tip to Prabhat Kiran Mukerjea and Vipul Nanda for pointing this out. Furthermore, as Shruti Chopra points out below, courts take the facts and circumstances of the case into consideration before deciding whether an opinion should is valid as precedence or not.
Whether courts in the future will take these opinions seriously or not (i.e. consider them ratio or not) is an empirical question, and we can only know for sure with time. However, given how silly they are, it seems plausible that they’ll be ignored.
So – yes. The Madras HC did say these things (and The Hindu is still technically right in this sense), but it’s largely harmless which justifies the accusation of sensationalism.
*Thanks, Samarth Moray for sending me the document. I’ve removed some of the annotations to spare whoever originally scanned it the embarrassment of being responsible for a leak. I’m told that uploading it here is perfect legal.
** Thanks, Garima Singal, for the line.
3. A beautifully written critique of Banksy, which I don’t agree with. Worth reading simply for the use of the word “lumpenintelligensia.”
4. There is a link between a belief in an angry God and poor mental health. Correlation is not causation etc.
5. On the social/official response to women raping men. I’ve come across most of these response somewhere or another, include real life.