Despite their occasional reformative approach, the judiciary is ultimately the machinery of a patriarchal, casteist State, and hence, by nature patriarchal and casteist – so is the bureaucracy attached to it.

By Pritha Paul

Shakespeare once wrote, “What’s in a name?” with a certainty only men can afford in this world.  A man is a man. A woman? A daughter, a wife, a mother. In a world which wants to carve out women only to fill the roles created by men, to make them belong to men and serve men, any semblance of independent identity among these women is a perceived threat to the existing patriarchal social order. Name, even otherwise but particularly in unequal, hierarchical societies, is a political weapon. A name, in the world we live in, acts as an identifier. It contains within just a few letters, the social and political history of a person. During my travels across the Northern  states of India, the first question I would be asked was my name, followed by my surname, and  when the curious soul could not quite place me in any of their caste categories, they would give  up the façade and directly ask me my caste. No wonder then, that the issue of names occupies so much space in our legal and political regimes.

Surnames originated to indicate a person’s belonging–reflecting broadly either one’s occupation, residence or paternal lineage. Children carry their father’s surname; married women carry their husband’s surname. That is the current rule, so we know who we belong to, so we know our place – at a man’s mercy. Apart from being a marker of identity, a name also contains within it the political economy of our patriarchal and patrilineal society, wherein, traditionally, property and privileges flow from the men of one generation to the men of another generation, along with the surname. Systemic patriarchy benefits men as a collective and grants them privileges in all  aspects of life – in this case, the privilege of naming and being named, being seen and acknowledged and accepted, being passed down the associated power, control and dominance over others in their lives.

An undated notification was issued by the Department of Publication of the Union Ministry of Housing and Urban Affairs, stating that a married woman wanting to revert to her maiden name, requires to either furnish proof of her divorce or a no-objection certificate from her husband, who  she very obviously belongs to for the duration of her marriage. Should this come as a surprise, in a country which deems a woman her husband’s property, like cattle? Or where marital rape is still considered acceptable and defensible? In places like Gujarat and Maharashtra, the feudal and patriarchal practice of naming remains the most blatant, reinforced by continuing antiquated legal, administrative and bureaucratic norms. There, by default, along with the surname, a child adopts the first name of the father as their middle name. For women, after marriage, the middle name and the surname by default change to the husband’s first name and surname. Often, in practice, a woman’s first name is also changed at the time of her marriage by her in-laws, essentially changing her whole identity, though this practice is supposed to be in decline.

In 2022, when I registered at the Bar Council of Maharashtra and Goa, despite having no middle name for 24 years of my life, the “system” automatically updated my father’s first name as my middle name. Apart from the obvious bureaucratic difficulties it would give rise to; I was disagreeable with my identity being so obnoxiously changed and with two-thirds of my name belonging to someone else. I was adamant about removing “my middle name”. A male senior – a human rights advocate – who is a proud, self-proclaimed misogynist – in enclosed spaces, of course – called my outrage symbolic, called me a rebel without a cause. He asked me if I hate my father. He instructed me to just accept it and let it be, to not cause trouble for myself, and for the authorities. This is the way it works here, he said. No one makes a big deal of it, he said. It was so absurd to me that I could do nothing but laugh at his irritation. I told him it is not my name. I told him that my father raised me to have my own name and my own identity.

I ran from one administrative building to another; knocked on every office I was referred to, spoke to every person who failed to dodge me. Every free second, every lunch break was spent running from pillar to post. Eventually, I lodged a complaint with the authorities, which was made into a case before the State Bar Council. A novice, but determined, I attended the hearing prepared with all my documents and arguments – my first case after becoming an advocate. I pestered the authorities enough for them to “change” my name to my own and issue me a fresh certificate and identity card. I cannot but mention several of my female seniors’ contributions to the outcome, who helped me draft my complaint, spoke to various authorities occupying posts in the State Bar Council via phone and also in person, and reassured me that they were more than willing to help me file a petition before the High Court for the cause because they found such practice unjust as well. Speaking to them convinced me that I was not “over-reacting”, that other women felt very similarly and strongly about such patriarchal practices, that they too would like to play their part in bringing about a change in the system. It was not only my seniors’ tangible help that alleviated my anxiety, but also their uncompromising understanding of the political and personal repercussions of the situation, their mentorship, emotional support and empathy which made me feel less alone in my quest and reassured me of my ideological position.

While a name is a symbol of a person’s position in society, its effects are direct and tangible. It has always been so. Even if we wish to turn away from historical instances and injustices, we are faced today with the SIR process wherein names determine the value of one’s entire existence in this country. Arabic or Muslim names are being flagged and deleted indiscriminately across all of India in the SIR process, even for minor spelling errors. Also in danger are transgender individuals whose chosen names do not reflect their legal name, or Dalits who have discarded their surname and can no longer so easily establish their lineage. For women, who often lack direct or formal documentation, relying rather on their male relatives, and who often migrate to far off places after marriage, furnishing ancestry documents becomes especially difficult, which form the core of  such citizenship verification processes. Women from marginalised communities, then, are doubly disadvantaged. Today, a Rose, called by any name other than that, is at risk of being declared an alien, no matter how sweet their smell.

It is not surprising, then, that in a world where women are treated as the second sex, mothers are treated as the second parent. Despite mothers, unfortunately, still being the primary caregivers more often than not, the child is deemed to be the father’s property. A similar issue arose before the Aurangabad Bench of the High Court of Bombay in XYZ & Anr. v. The State of Maharashtra wherein a child being primarily and solely raised by her single mother wanted to alter her documents to contain the details of her mother instead of the father. The request for the same had been denied by the authorities. However, the High Court, relying on Constitutional provisions and principles, allowed the changes to be made, observing as follows:

“8.  Article 14 of Constitution of India requires substantive equality. The assumption that identity must flow through the father is not a neutral administrative default; it is a social presumption inherited from a patriarchal structure that treated lineage as male property and women as appendages for purposes of public identity. To insist on this presumption in contemporary India, especially in cases of single motherhood and exclusive maternal custody, imposes a structural burden upon women and their children. It makes the mother fully visible for responsibility and accountability, but insufficiently visible for purposes of identity. Such an asymmetry violates the equality principle, because it makes constitutional citizenship contingent upon a male conduit even when the male conduit is absent, severed, or irrelevant to welfare. 

22. The determination of caste, particularly in atypical or exceptional factual settings, cannot be restricted to a matter of biological descent alone. The Hon’ble Supreme Court, in Rameshbhai Naika (supra), has emphasized the relevance of social upbringing and the environment in which child is reared. In the present case, the minor has been raised solely by the mother, who belongs to the Scheduled Castes community, and there is no material on record to suggest that the child has been brought up in an environment deriving her social identity from the father’s caste. The father’s express renunciation of relationship and responsibility further removes any foundation for the continuation of the existing entry.

23. The paramount consideration remains the welfare and best interest of the child. To compel the minor to carry, in her educational records, the caste identity of a person who has completely disconnected himself from her would be contrary to social reality and fairness. The correction sought does not amount to a voluntary alteration of caste by agreement, but rather to a rectification of the record so that it reflects the true social and legal position in the peculiar facts of the present case. Therefore, correction of the caste entry in the school record on the basis of the mother’s caste falls within the permissible scope of rectification of an obvious mistake and warrants interference.” 

Not only does the judgment acknowledge and recognize non-conventional forms of family, it also gives due importance to single mothers. Further, the court also focuses on the evolving  understanding of caste not just as an inherited status but also as a lived reality through social  experiences of a person, and also acknowledges the possibility of caste identity flowing from the mother. However, it is to be kept in mind that in the particular facts of the case, the father had voluntarily abandoned his rights to the child. The Supreme Court in Rameshbhai Dabhai Naika v.  State of Gujarat, a judgement heavily relied on by the Bombay High Court, stated that while there is a presumption that a child inherits the caste of the father, such a presumption is rebuttable if one is able to adduce evidence that the child has been brought up by the mother, that the child  was always treated as “a member of the community to which the mother belonged not only by that community but by people outside the community as well.” It is pertinent to note that despite the Courts’ magnanimity in recognizing a mother’s parental ties, they still require the mother to shoulder disproportionately more, if not all, the burden of childcare in order to even be considered as having rights at par with the father, who by default is presumed to be the primary parent even by the courts.

This surely still leaves open the question – can a child inherit the mother’s caste if the father is present, active and contributes equally or more to the child’s care? The question of law remains open and pending before the Supreme Court, but from the above two judgements, it may be derived that it is entirely possible for a child to inherit the mother’s caste even when the father plays an active role in the child’s life, as long as the child is brought up and treated as a member of the mother’s community. Not only will such an interpretation break away from the rigid  patriarchal presumption of patrilineality, but it will also give due importance to lived caste  experiences of individuals which manifest in extremely nuanced ways and in various aspects of one’s life – especially as caste itself proves to be dynamic and multifaceted, particularly in urban spaces, where apart from traditional hereditary occupations and untouchability, caste unravels also in the form of inaccessibility of social capital, social exclusion, systemic oppression and humiliation in practices as subtle and personal as choices of food and language, among others. This becomes especially significant within a social reality wherein inter-caste couples more frequently than not face ostracization by the upper caste communities. However, in order for such a shift to be translated into action on the ground, it will be important to sensitize officials responsible for issuing documentation to individuals, to educate them of the diverse family and evolving caste dynamics. Only then will there be a significant transformation in patriarchal and casteist bureaucratic habits. Government resolutions issued to that effect will also ensure compliance with these principles without excessive reliance on the courts.

On 14 March 2024, a Government Resolution was issued by the Women and Child Development Department, Government of Maharashtra, which was relied on by the Bombay High Court in the above judgment. On 14 March 2024, through the Government Resolution, the Maharashtra government mandated mothers’ names to be included in official documents of a child, which previously required only the father’s name and surname, in an attempt to equalise the two parents in the eyes of law. However, it has given rise to an absurdity where a child born after 1 May 2024 has four words in their name, of which only the first is their own, followed by their mother’s first name, father’s first name, and father’s surname. The government was careful to instruct that the mother’s name need not be reflected in a separate column. Not so much space and ink ought to be squandered on a woman. Before one begins to wonder what sin the mother’s surname has committed to be ousted as such, let them be reminded that she herself is expected to adopt her husband’s name and surname.

The resolution is further careful to explicitly direct that the existing system of married women by default adopting their husband’s name and surname after their own first name is to be continued. If we are able to overlook the horrifically patriarchal outlook of the Maharashtra government reflected in the resolution for even a few seconds, we will be able to focus on how in reality, such  directions have created extremely humorous yet annoying commotion among the officials and public alike. Every permutation and combination of names and surnames are being issued on documents, with no regard to consistency or uniformity. The new resolution means that a married woman may have her mother’s name squeezed between her name and her husband’s name. One married woman reported that her name is reflected in her documents as follows: her own name followed by her mother’s name, her husband’s name and her father’s surname. If one wasn’t already familiar with the patriarchal nature of the state, one could easily mistake this as an attempt to disrupt the existing family structure!

Instead of allowing citizens to exercise their liberty with respect to their own identity, the Maharashtra government has only attempted to incorporate superficial equality in order to safely continue a deeply feudal and patriarchal practice. This practice which deems children their parents’ property, and women their husbands’ is a legally enforced practice which is only prevalent in states like Maharashtra and Gujarat. This practice is also rooted in the casteist tradition of staunchly preserving existing caste dynamics by disallowing diversion from family  names which reflect one’s caste. In almost all other states of India, even though a child’s documents contain their parents’ names, they do not form a part of the child’s name. Several states, especially those with a history of anti-caste movements also witness relinquishment of surnames, with many embracing only their first name as a political and cultural assertion.

Married women’s names too, do not mandatorily require including their husband’s name. The  undated resolution issued by the Union government is also a very recent occurrence, which  grimly but solemnly warns us of regression in women’s position in society under the current  BJP/RSS regime – after all, feminist values are in direct conflict with fascist ones – which upholds  books like the Manusmriti and emphasises on women’s subordination as a principle. A more flexible and rights-based regime, which allows citizens to independently and adequately reflect their true social, historical and even ideological identity, and allows individuals to choose their middle name and surname or the lack of them, is required to be advocated for and adopted for a truly empowering approach. Again, a government resolution to that effect will ensure quicker and more consistent reformation in the existing bureaucratic practice, avoiding every individual case of discrimination requiring to approach the courts for adjudication and justice.

A year after my amusing encounter with the Maharashtra Bar Council, a friend who wanted to register himself was told by the authorities to fill up his form carefully so as to avoid confusion about his name. They told him some people cause too much trouble, and they do not want a ruckus later. I was happy to know they remembered me, ironically not by my name but by my actions. I am skeptical, though, that they haven’t forgotten. While the judgement of the Bombay High Court is a breath of fresh air among a series of regressive, misogynistic judgments being passed by the various Constitutional Courts of the country, it has to be emphasized that structural inequalities cannot be altered by making exceptions within a decaying system or by  placing (often misguided and immense) faith on the discretion of authorities within that system. The courts, portrayed as a “neutral” institution by the State and the mainstream society at large, is by no means so. Despite their occasional reformative approach, the judiciary is ultimately the machinery of a patriarchal, casteist State, and hence, by nature patriarchal and casteist – so is the bureaucracy attached to it. Representation, too, does little to challenge its character, instead subsuming individual identity into the larger State character. Hence, we have female judges trivializing sexual assault and turning a blind eye to systemic violence against women. The judiciary’s task is to manage social contradictions through its judgments and dictums and to placate the historically oppressed. True transformation, instead, is achieved by striking fiercely at the very rotten core of the old world. And strike they will, when the Roses are ready to reclaim their identity.

Pritha is a lawyer and activist. She is part of Groundxero collective.