Should we rely on astrology or on the Constitution?

References to astrology and the Manusmriti in court exemplify the need to question prejudices that underlie court judgements

Recently, the Supreme Court stayed an order of the Allahabad High Court, which had directed the Astrology Department of Lucknow University to decide whether an alleged rape victim was 'manglik' or not by examining her horoscope. This was in a case of rape under the false promise of marriage.

The accused who sought bail claimed in his defence that the marriage could not take place because the girl was ‘manglik’ or bringing bad luck as per her horoscope and this was denied by the counsel for the complainant. Instead of deciding on bail, the high court directed the Head of the Astrology Department at Lucknow University to decide on the matter — whether the girl is manglik or not. And the parties were asked to produce their horoscopes to the Astrology Department for examination.

Read | Inclusion of astrology in BAMS is retrogressive and needs to be withdrawn, scientists urge Ayurvedic council

At the very outset, whether a woman complaining of rape under the false promise of marriage is manglik, due to which marriage could not be performed, can never be a valid defence under criminal law. Such a defence would prove the charge that the accused did indeed have sex with her by taking her consent which was given under the promise of marriage and then backed out of the marriage, claiming she was at fault for being manglik. The question of deciding whether she was indeed manglik or not therefore does not even arise for consideration of whether bail should be granted.

In another case, in a petition where a rape survivor aged 16 years and 11 months sought for termination of her pregnancy on the ground of mental distress, a judge of the Gujarat High Court observed orally in court that under the Manusmriti, women were married between 14 to 16 years and would have a child by the age of 17 years.

Not only do such observations go against the law since the Prohibition of Child Marriage Act, 2006, prescribes the age of marriage as 18 for girls, they also promote the subjugation of women and girls by suggesting that the Manusmriti should be read.

The Manusmriti is a socio-legal historic text which, among other references, also states that women and certain caste persons are inferior and unequal.

Patrick Olivell, in his book ‘Manu’s Code of Law: A Critical Edition and Translation of the Manava-Dharmasastra’, provides the translated verses of the Manusmriti. Some of the verses are as follows: “Even in her own home, a female – whether she is a child, a young woman or an old lady – should never carry out any task independently. As a child, she must remain under her father’s control, as a young woman, under her husband’s; and when her husband is dead, under her sons.” (Chapter 5, shlokas 148, 149)

A second excerpt reads: “Wife, son and slave – all these three, tradition tells us, are without property. Whatever they may earn becomes the property of the man to whom they belong.” (Chapter 8, shloka 416)

Thus, the text of the Manusmriti completely contradicts the guarantees of equality and dignity provided to women under the Constitution.

Why are our courts relying on astrology, horoscopes and the Manusmriti? Is it something that we should be concerned about? I would argue that this is a matter of serious concern. Such observations are made, often casually, but are not harmless. By making such observations, the courts are indirectly denying women’s equality, projecting them as inferior, as persons without agency or decision-making power and under the control of their male relatives. Such indirect discrimination flies in the face of the right to equality and non-discrimination guaranteed under Articles 14 and 15 (1) of the Constitution.

In Joseph Shine v. Union of India, the 2019 case in which adultery was decriminalised, the Supreme Court identified the Manusmriti as a patriarchal text. It recognised that its verses which held that the husband was the owner of a wife’s sexual agency perpetuate patriarchal and paternalistic notions of wife as mere chattel or property of the husband. Such a notion was held to be arbitrary and inconsistent with constitutional morality.

Reinforcing stereotypes

Similarly, in the Sabarimala judgement, the Supreme Court held that “In ancient religious texts (referring specifically to the Manusmriti) and customs, menstruating women have been considered as polluting the surrounding...and the idea of impurity is then used to justify their exclusion from key social activities. Our society is governed by the Constitution. The values of constitutional morality are a non-derogable entitlement. Notions of “purity and pollution”, which stigmatise individuals, can have no place in a constitutional regime.”

When Manusmriti has categorically been denounced by the Supreme Court as being contrary to our constitutional framework which protects equality and which opposes discrimination on the basis of sex, race, caste, religion and place of birth, our courts cannot make even a passing reference, giving approval to such texts. Similarly, the reliance on horoscopes of parties to determine whether a woman is ‘manglik’ or not, is a negative, stereotyped view which limits women’s choices and freedoms. As per Hindu astrology, ‘Manglik’ is a term used to describe a person, typically a woman, who is believed to be “cursed” or predisposed to bringing bad luck to their partner, including death. Such beliefs are often used against women to limit their choices in choosing their partners and also force them into marriages. It reinforces harmful stereotypes about women, including that it is usually women who are responsible for problems in a marriage instead of looking at the institution of marriage as an equal partnership.

All of these observations and orders passed by courts thus perpetuate harmful stereotypes of different marginalised groups, most often women, but also people with disabilities, Dalit, Adivasi communities and LGBTQIA+ persons.

Harm caused

One may ask what is the harm caused, if these comments are just oral observations? In many instances, direct harm is caused as we can see in the Allahabad case where bail was proposed to be decided based on the alleged ‘manglik’ status of the complainant.

Indirect harm or discrimination also occurs but is harder to prove or establish, as are the hidden biases of institutions and people in positions of authority. Despite being hard to prove or establish, it has a serious impact on the dignity of the vulnerable group or person.

In the Navtej Johar case, where section 377 of the Indian Penal Code and same-sex conduct was decriminalised, the Supreme Court held that discrimination operates by dint of “structures of oppression and domination” which prevent certain groups from enjoying the full panoply of entitlements. It is these structures of oppression and domination that our constitution seeks to dismantle. In doing so, it seeks from us that we adhere to the values of the fundamental rights strictly in letter and spirit.

Our courts and legal institutions have even more onerous responsibilities of upholding the values of the Constitution. It is time that we question these personal hidden biases and stereotypes that underlie court judgements and hold our courts, judges and members of the legal profession strictly accountable to the Constitution.

(The author is a senior advocate in the Supreme Court of India.)