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justice-is-blind

By J Nigam and Shalu Nigam

Mature men and some women in mysterious black coats, a weary face listening, though with little attention, to these two segments arguing, fighting, abusing and shouting, and an allegorical lady justice with blindfolds balancing some scales- that’s a courtroom in my eyes as a four year old child!

Though I had barely opened my eyes to the world around, I could understand these surroundings and the impact they would have on me.

‘Mimi…’ I had squeaked, terrified, pointing towards to my mother when I was asked by the judge who I would want to remain with. It was a custody battle and justice had taken six long years to be served when it finally did. My parent’s divorce was finalized after prolonged litigation. However since my parent’s separation when I was only a few months old, I have only been aware of, and living with my mother’s parents.  Since my mother has been legally awarded custody, she is my sole guardian; and I never felt the need to have a father.

That was the beginning of my tryst with tradition and cultural stereotypes. Now I was a ‘fatherless child’ and my qualities, virtues, values didn’t matter to people who formed prejudiced, stereotypical judgments without comprehending the truth of the matter. That’s one aspect of conventional patriarchy which continues to flourish on its deeply entrenched roots and finds expression despite feminist revolutions. According to one of its tenets, each individual must be identified as a commodity entitled to a male figure of authority. Women virtually have no independent identity; they must be recognized as some man’s wife or daughter as if they were any other inanimate belonging. However, these were only my origins. The choice of meek submission to society’s standards or rebellious defiance had been with me. One of my favourite website says that ‘“Human beings are works in progress that mistakenly think they’re finished,” which belies the great robbery of the human experience — by calling ourselves beings, we deny our ever-unfolding becomings.’  So I choose not to be defined or confined by my origins, rather find sturdy roots and strong wings in them and write my own future.

My so called biological father, has been completely absent from our lives ever since my parent’s separation. For us he is non-existent. He deserted us, without even bothering to care even for the existence of his progeny. He went to great lengths to avoid parting with his pride or money for a girl child. So did his family members, for not only did they condemn us, but never for once did they attempt to establish contact with us. I therefore finally decided that I will not be identified by a complete stranger who eluded his responsibilities in my upbringing or intervened in any manner in my life. I have learned to live without a father’s name and clearly, it was his disinterest that he never bothered to object to nonuse of his name.

Therefore, his name has not been used in any of my formal or legal documents including my documents in school, my tenth class CBSE Board Certificate, my Aadhar Card and the two previous passports issued to me by the Regional Passport office.

Naturally, there were many incidences where I was questioned by authorities, peers and even relatives. ‘Why is your father’s name absent from the record?’ ‘Why are your parents separated?’ ‘It is necessary to have a father…otherwise it may affect the child’s psychology and health’ I had heard from numerous individuals-ranging from elementary school officials to passport authorities!

While one would usually associate liberal thinking and open mindedness with educational institutes or the so called ‘civilized educated elites’, it wasn’t the case with my primary school headmistress who was so adamantly headstrong about writing the father’s name in my records despite our constant refusal. Contrastingly, the teachers and the principal of the school was very open minded and he assured that I would never have to face any such problem later. Consequently, even though I had to transfer to another school 8 years later, the father’s name was never the part of my identity.

Now, back in the early 2000’s for some reason or the other, my grandmother decided to get her passport made, so I wanted to get it too and my mother happily obliged. Of course, she was unaware of what a task it would be! From the school authorities to the government officials, every other person wants to make his/her work easier, and for those who handle huge databases of information, it would be easier if every entry were just like any other. Any deviation from the norm is unacceptable and the person would go to any lengths to ensure that the record is ‘normalized’! As a programmer, I know that I want all user-computer interactions to be just as I had thought it would be.. any discrepancy and I am forced to change the entire algorithm and start from scratch! Unfortunately, my records would force the government officials to rectify the bugs in their systems.

The first time around, when the passport authorities realized the abnormality, we insisted and convinced them with our assertive arguments and the Supreme Court judgement in the matter of Gita Hariharan vs. Reserve Bank of India, 1999. So I got my passport in 2005 with ‘NIL’ written in the father’s name field. The second time I had to get my passport made was in 2011, and I needed it really urgently! After much deliberation, I got the passport made again the way I wanted it to be.

Now as I got closer to gaining majority, the time to spread my wings and take a flight, starting college, a new chapter of my life, nurturing my dreams and ambitions which I had kept alive since my childhood, I was in for a rude shock! After dedicating my high school career to securing good grades, maintaining my extracurricular and community service records and taking those numerous tests one is supposed to take, I had secured admission to universities with the passport as the proof of my identity. For universities abroad, that was of course mandatory. My current passport was valid till March 2016, much beyond the date I was going to be recognized as an adult, and I could have applied having completed all the legal formalities, but since I was applying to universities and had finally settled on a university to attend, I thought it would be better to renew my passport before it expires midway, for I would have to come back and get it renewed.

I applied for re-issue of passport on 16th June 2015, at the Passport Seva Kendra, Gurgaon. But since we were uniformed about this PSK’s inability to accept applications with complications such as those arising with minors with single parents, we could only get the file to be registered on 22nd June. We were then directed to the Regional Passport Office in Delhi to get these issues resolved. That was new indeed! I had applied as soon as I could under Tatkaal scheme thinking that I will get the passport issued again, as I had the last time. It had been a quick and easy process then unlike this time around. At the office, with the new system in place, my file was inspected, I was given a token and was told to wait! When I was called for the photograph and fingerprints, it felt like a huge burden lifted off my shoulders! They took the additional Tatkaal fee and I was overcome with joy for finally getting a passport. Unexpectedly, my file was escalated to the APO who told me that my file had been rejected and asked me to meet the Regional Passport Officer(RPO) and the Assistant passport Officer(APO). Heartbroken and dejected, I went over to the other building where there was a huge queue, the room was absolutely full with frustrated and infuriated people. The only though that occupied my mind during those 85 minutes of waiting was ‘Why are so many people troubled?!’ The APO did not sound very pleased with our case, and therefore concluded that nothing could be done. From thereon, a constant shuffle between the RPO’s office and the APO’s office began! The RPO refused to believe that I had been issued passports without the father’s name twice in the past. He tried to justify his place by saying that the issuing authorities must have made erroneous blunders in issuing me those passports. Since I needed to get the passports urgently, on insistence he suggested I meet an official from the Ministry of External Affairs(MEA) to get a quick decision. But, a negative response awaited me there. A lawyer who had come there for his own business overheard my struggle and stated ‘Why do you not want the father’s name? You have the DNA. Having a father is really important. If you wipe the name off the record, you would be treated like an illegitimate child.’ Furthermore, they said I had no right to apply for a Tatkaal passport for it wasn’t my constitutional right and moreover considering my case, I wasn’t eligible to apply under the scheme. Now, were their own representatives aware of the fact that a single parent case could not avail the Tatkaal scheme, for the official who took the additional fee from me was the same who told me that I would have to write the father’s name! In response to further questioning, they stated that with the new tie-up with TCS, a change in software and policy, the system no longer accepts a blank in place of father’s name and owing to a software requirement, I would have to basically change my identity!

For almost a month I travelled to the RPO’s office daily, before deciding to communicate through emails. On the other hand, the university was repeatedly asking me to send my passport details to begin visa processing and I was trying to stall for time and here was the whole bench of government officials who had taken the decision of, very liberally, deciding my identity for me. I wrote numerous emails and reminders to the RPO and the MEA to re-issue my passport, explaining in detail my situation and my distress, literally begging them to give me a passport. There were no replies at first, but on subsequent reminders, they came back saying “We will get back to you tomorrow”. Days passed by, the ‘tomorrow’ turned to ‘next week’.

My life had been turned upside down, for if I didn’t have a passport, I could not finalize my admission and I didn’t have any back-ups then, it was only later that I applied to the university that I am attending today. The old passport had been cancelled too.
On 16th July, I got an email, attached with which was an objection list that said, exactly replicated here, ‘
PASSPORT TO BE ISSUED TO YOU FATHER’S NAME ONLY.’


Since I had been using these passports for nearly about 10 years with the NIL mentioned in the father’s name field, it would cause me a great deal of troubles to have a name included now or in the future. I was applying to universities with my current documents and passports which did not bear the father’s name, in case the name was to be included now, there would be questions regarding financial and social liabilities of a person, who, for me, is non-existent; and whether after 18 years of my life, I had accepted that person as my father, which I am unwilling to do. I would have had to justify this stance for the rest of my life to all authorities and institutions which I may have to collaborate with either as a student, as an employee or as a citizen of India.

Even the institution, both national and foreign, demanded a non-custodial parent waiver petition, wherein I had to submit a statement saying that I have no ties with him and that I don’t intend to have contact with him in near future, otherwise the institutions demand a financial contribution from the non-existent ‘father’. If I put in a father’s name, then who would pay the costs of all the losses that I would have to incur as a student or candidate in any institution?

However, the circumstances had forced me to cave in to this intense pressure of the bureaucracy and with a heart of stone, I agreed to accept my passport whichever way they issued it. By then however, I could no longer apply for visa, the dates had already passed. The pain was excruciating.

Somehow, I had taken the JEE and qualified both the levels and my academic result helped me secure admission to the university I attend today. I am really thankful for that, otherwise the arbitrary policies of the government would have left me with nowhere to go. They had already stripped me of my right to determine my own identity and now they had interfered in my education.  After the first semester came to an end, and I came back home, my mother and I filed a civil writ petition with the High Court of Delhi against these decisions of the Passport Office and the Ministry for External Affairs. The court process took some time and meanwhile my heart throbbed till the final decision was pronounced. The judgment for which came out on 17th May 2016, that

“Consequently, this Court is of the view that mother’s name is sufficient in certain cases like the present one to apply for Passport, especially as a single woman can be a natural guardian and also a parent.

This Court further finds merit in the submission of the petitioners that if the respondents direction to petitioner No.2 to mention her father’s name is not quashed, it would compel the petitioner No.2 to alter not only her name, but also her identity that she had been using since her birth i.e. daughter of petitioner No.1 rather than her biological father who had abandoned her at the time of her birth.

In any case, technology is intended to ease and facilitate transactions and cannot be the basis for creating and defeating anybody’s legal rights. If the only impediment, in way of granting the relief sought by the petitioners, is the software, the same ought to be suitably modified to accept the application of the petitioner No.2, if she is otherwise entitled for re-issuance of the Passport.

The fact that the respondents had on previous two occasions, in the year 2005 and 2011 issued Passport to petitioner No.2, without insisting on father’s name, makes it evident that the said requirement is not a legal necessity, but only a procedural formality, which cannot be the basis of rejecting the petitioner No. 2’s case. Consequently, it appears that legally and factually there is no impediment in issuing the Passport to the petitioner No.2, without mentioning her father’s name.

Accordingly, the respondents are directed to modify their software and accept petitioner No.2’s application and issue her a Passport without insisting upon mentioning her father’s name”[i].

 

This thoughtful judgement worked to restore my faith in the judiciary and legal system…at least there was somebody to understand my grievances and offer assistance.  More importantly, I believe that any person should have a say in his or her own identity. Arbitrary policies decided upon by short sighted stakeholders cannot assert or force one to conform to constricted norms and uniformity. The bureaucratic apparatus shouldn’t be able to exploit one’s vulnerability and impose its myopic visions and decisions on anyone. ‘

 

Scripting Transformation, Asserting Identity: Individual versus State

The above is an account based on the authors’ real life incidents, depicting how laws, policies and above all bureaucratic structure shape every day’s reality relating to identity, relationships, living and surviving within a well-defined matrix of conventional rules and norms. Similarly, it also reveals the manner in which individual struggles are potentially resilient to make a mark on the rigid patriarchal bureaucratic pandemonium.

The literal definition of identity classifies it as a social, anthropological and a psychological concept which acts as a label one such definition conceptualizes identity as a composite of the uniqueness of being or the physical existence of the person himself and the aspects of his personality, attributes including beliefs, opinions and life history. It pervades almost all spheres of life, how a person chooses to be recognized in different settings, formulate and showcase one’s personality or seek support from a community and achieve a positive self-image.
The state has been held responsible by law to ensure that each citizen has an identity. However, in upholding and ensuring that the citizens avail their right to identity, the state construes it within the complex matrix of his or her birth within a particular family, community or society. Factors, like religion, caste, class, gender, all play role in determining the identity of an individual. Often an individual is forced to unwillingly determine and even question the aspects of his identity and these characteristics are difficult to change as social and legal norms that govern the context of identity are rigid.

Although internationally, Article 8 of the Cour européenne des droits de l’homme (European Court of Human Rights) has been interpreted to include “personal identity” within the meaning of “private life.” It protects against unwanted intrusion and provides for the respect of an individual’s private space.

Despite the far reaching role of identity, the Indian Constitution still does not regard the right to identity as a fundamental right or even explicitly guarantee it even though it elaborates on the concept of citizenship. The state does not give the freedom to individuals to choose their identity or the way they would like to be recognized, it’s almost as if the state forces its perceived identity, thereby segregating the society on the basis of religion, sexual preferences, caste, and culture and discriminating against certain sections which it deems unfavorable.

The debates on identity and human rights have weaved a complicated fabric of entitlements and accountability on the part of citizens and the state.  However, this discourse has overlooked a significant aspect of identity in terms of children, who are born out of wed lock, children of single parents, children of sex workers, children born out of rape, orphan, abandoned, destitute children, and children of terrorists and lately children who are born out of commercial surrogacy and in doing so the society upholds the father or the male parent as a superior being relegating or even negating the role of mother in the defining the life and identity of the child. In other words, the state and the society sanction legitimacy only to those children who are born into a typical heterosexual wedlock that is legal under the social, moral and legal norms. Neither the law nor the society accepts that child as a normal human being with his or her own unique identity, for reasons which may be beyond his or her control.

The reason for denial of the basic human right to identity of such individuals is that the state premised its notion of family as a unit of production on the stereotypes where the male is seen as a provider and a female is seen as a producer, caregiver of the family and one who rears children. It fails to take into account, the shift in the concept of a family with the changing socioeconomic and technological aspects which call for the change in notion of a family as well as examining and redefining the concept of motherhood and fatherhood within these emerging contexts.

Within the altering social scenario, it is essential that the rights and the identity of the child be re-contextualized and re-visualized. Considering the principle of parens paeritis (welfare of the child is of prime concern) which focuses on the rights of a child, certain questions need to be re-investigated. Thus, in case of single parent’s family, can the child choose which parent s/he wishes to stay with and adopt the identity of the same parent, or can a child born out of surrogacy be given the right to choose the parent of whose identity s/he may adopt? Is it possible for the child of a sex worker or one born out of violent rape be given liberty to choose to dissociate from the so called `biological father’ on the moral, social and humanitarian ground? The debate also raises questions for a child whose father may be branded as a terrorist by the state, can he seek to choose an identity to distance himself from that relationship so as to lead a better life than being labelled as a terrorist an scarred for life?

Unwed mothers, rape survivors, sex workers, single mothers, all women who have been bringing up their children alone, have to struggle hard to ensure that a child living in such situations enjoys his or her rights as a child away from the notion of legitimacy. Those abandoned, orphaned, children adopted or reared by single parents, children born out of live in relationships, children of trans-genders or recently born using new technologies like IVF, commercial surrogacy all face apprehensions of being declared as illegitimate in case the biological father refuses to acknowledge the child as his own. This is because the patriarchal state has created the rules and laws that identify the child through his or her biological father rather than carving the identity of the child through the mother overlooking the fact that it is the mother who produces and cares for the child in such an asymmetrical male dominated social order.

The biological father in such societies is held as authoritative and the certainty of paternity is considered valuable especially when inheritance, citizenship and identity are at stake. Births outside legal marital tie are considered as unacceptable and often women and children are subjected to violence at the hand of their own families. Honor killing, abortions, feticide, infanticide are often used to suppress such lives. Punishments like stoning, lashing and similar such harsh disciplinary measures have been deployed to forbid women to have sexual relations outside marriage by the traditional communities. This concept of defining the concept of legitimacy through the lens of paternity overlooks the Roman law principle mater simper certa est or ‘the mother is always certain’ or pater semper incertus est in other words ‘the father is always uncertain’.  The Roman law in order to determine paternity use marriage as a criteria as evident by the principle pater est, quem nuptiae demonstrant or ‘the father is he to whom marriage points’. The system therefore is prejudiced against women and more importantly the single women who decide or choose to raise their children outside the purview of marriage.

In many Western countries, this traditional concept has been transforming. The Family Law Reform Act, 1969 in England has eroded the concept of filius nullius[ii] while granting equal status to children born out of sanctioned heterosexual relation. Further, the 1989 Children’s Act abolished such form of distinction while introducing the concept of parental responsibility. In the United States of America, the concept of legitimacy of the child was completely abolished way back in the 20th century where all the states uniformly adopted the code of parental responsibilities irrespective of marital status of parents. In both these nations, the rights of single mothers to give birth and to rear the children are well defined. The International Human Rights Instruments also clearly defines the rights of a child and an individual to be treated with respect and dignity. The Universal Declaration of Human Rights, 1948, the UN Convention on the Rights of the Child all proclaim for equal protection irrespective of background or birth.

However, the concept of ‘illegitimate children’ has been retained in many South Asian countries disregarding the fact that it is not the child who should be categorized as legitimate or illegitimate rather it is the system which created and promoted this concept which is illegitimate. It is the patriarchal society that should be stigmatized for creating such distinctions of sanctioning illegitimacy to a relationship rather than the innocent child who is not even be aware of such categories at the time of his or her birth. The personal laws consider illegitimate child as filius nullius though the courts are now re-interpreting these laws and an analysis of case law may indicate that in terms of property rights, children born out of void marriage are granted claims yet the social status of these children is determined by the absurd rules created by the society. The society fails to recognize the fact that the relationship between adults or the deemed parents cannot be used to determine the legitimacy of the child. A child has to be identified independently and above the relationship between parents and must not be deprived of his or her rights whatever the circumstances may be.

Marching Towards Liberation

Laws operate in a multitude of ways. Law has ability to shape and challenge the older ideas and create space for new thoughts with the changing times and transforming cultures. Yet it has also often acted to obstruct claims, especially when one considers women and child rights issue in a patriarchal society. While the socio-legal transformations have enabled ways to engage with the state and paved the way for defining and shaping women and child rights, they have also created complicated situations where one needs to introspect on issues relating to a child’s identity within the matrix of social justice and the entrenched notions of vulnerability which fuel the state’s inability to imagine women as economically empowered and independent actors and as a sole carer and nurturer of a child. The state provides opportunities to empower women to march forward towards a path of liberation yet it treats women as second class citizens. The state protects and patronizes women and children while also providing a space to claim entitlements and this capability needs to be utilized to assert rights of those who are at the receiving end within this power relationship. Thus, in a changing society the need of the hour is to engage with the state in a constructive manner to assert the identity of women and children keeping in mind the shifting socio-cultural as well as political and legal contexts.

PS – After obtaining the certified copies of the said judgement of the Delhi High Court we re-applied for the passport. However, we are still awaiting to obtain the corrected passport.

About the Authors

The authors are the mother daughter duo who have dared to challenge the patriarchal system while forging new ways to survive and marching towards liberation.

 

[i] In the matter of Shalu Nigam and Another v Regional Passport Officer and Another W.P. (C) 155/ 2016 decision given by the Delhi High Court on May 17th, 2016

[ii] Son of nobody

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