Aditi Nidhi

Abstract

Is it time for the subaltern to speak?

“She was always a pain in the neck, unwelcomed even before she was born, a constant nag to family for she was the protectorate of the protector – men. If things went wrong – unkempt home, bad food, children being spoiled or failed marriages – it was always because of “her.”

Since times immemorial, societies have not socialized people into normative roles of men and women rather into gender-specific roles. Women have been inextricably held captive to the vicious cycle of moral sanctions – shame and honor – to limit their bodily integrity, sexual autonomy and mobility into public spaces. Therefore, quite evidently, violence surges whenever the patriarchal status quo is challenged. Rapes, more so gang rapes, are not an expression of uncontrolled libido of men but the will to subjugate and dominate their “better half”. It is an explicit manifestation of the power equation entrenched in the society.

Cultural prejudices must yield to the constitutional principles of equality, empathy and respect. Protests are important, for it shakes the conscious of the society. Reforms – police sensitization and accountability, fast-track courts, better surveillance – too, are essential. Yet, perspective is, perhaps, the most vital of all because punishments can never be the annihilator of crime. It can, at best, act as a deterrent.

If gender justice and equality of women are ever to break free of the shackles of being a fragile myth, then home has to be, invariably, the starting point – the very battleground with the family as warring general.

Yes, the voice, though feeble, trembling and muzzled, which has been silenced for centuries must speak. Therefore, we, as a family, society and state, must reach out to them and lend our voices too.

Introduction

Rosa Park was an iconic figure in American civil right struggle whose refusal to yield her seat in the colored section of a bus to a white passenger evolved into a mass movement for equal rights for the African-American community.

In the Ramayana, Goddess Sita proves her “purity” in a ball of fire only to be abandoned later by her very husband Lord Rama. In the Mahabharatha, Yudhister stakes his wife, Draupadi, like wealth or property.Using such paradoxes to their advantage outfits like Bajrang Dal or Durga Vahini – bothare the cadre of a neo-fascists organization – often resort to violence or “moral policing” under the veneer of conservatism and the “hindutava” way of life. Therefore, the existing notion of gender inequality is invariably the culmination of sustained efforts of the orthodoxy to degrade the women’s position in the family and hence, the society.

Since times immemorial, we have been conditioned to portray and accept the fairer sex as a symbol of purity, a liability, a constant nag, the flag-bearer of shame and honor and the protectorate of a family. Rapes, more so the gang-rapes, are not an expression of uncontrolled libido of men but the will to subjugate and dominate their “better half.” It is an explicit manifestation of the power equation entrenched in the society. Ram Singh, the accused bus driver in the infamous Delhi case accepted the fact that the courage of the paramedic student to stand up against them provoked them the most. Hence, quite evidently, violence surges whenever the patriarchal status quo is challenged.

Causal Mechanisms

The causal mechanisms held responsible for the surge in sexual violence can be differentiated on a temporal scale as long-term and short-term causes. The former will include the patriarchal mindset inculcated and imbibed by every strata of the society;they are like a chain of events ultimately leading to the present situation. The latter category includes the causes which are discreet and independent of our past like exposure to pornography, films, western culture, absence of laws and others. Interestingly, the proponents of both are the conservatives and the self-proclaimed champions of Indian tradition and culture.

First the long-term causes. Societies have not socialized people into normative roles of men and women rather into gender-specific roles. Women were raised to be passive and men to be aggressive. It is evident even today. Parents will advise their daughters on the ways of dressing and behaving and guard their wardrobes with the greatest zeal. But, seldom will you find a parent explicitly administering mannerisms in their son vis-a-vis their female counterparts. Brothers take pride in being protective of their sisters but act in all the abnormal and unacceptable ways once they are by themselves or in peer groups.

Neither does any school in India teaches it to the boys. Observe a boy just passed out of an all-boys school. Most likely, he will act like a Neanderthal. Schools and colleges also assume a parochial outlook by imposing all kinds of dressing restrictions on girls. Sadly, they don’t take the pains to “educate” boys. Have we accepted that such crude and unacceptable conducts are inherent in boys or to-be-men? When we are not bothered to teach them the basic rights of their female classmates, then how can we expect them not to act like animals or savages once they are out in the society? Above all, it is the message that we, as parents and educational institutions, are conveying which is most harmful -“it is the responsibility of a girl to protect herself from all sexual violence and her bodily integrity.” Ultimately, the perpetrators of this heinous crime are the same unconditioned boys at school or sons in the family with wrong prejudices of masculinity and male superiority.

Evidently the society today, particularly men, is tolerating women’s freedom and is yet to grant its acceptance. Male child is still given high preference over daughters, especially in the poor and lower middle class. Middle class families will educate their daughters and some will even allow them to work. But they’ll marry them within a year of the completion of their formal education or date-of-joining the job. Women’s mobility is severely restricted by the movement of sun. The setting sun is the ultimatum for a girl or a woman to return to the safety of their “dens” – homes.

The liberalization and free market economy did ameliorate the condition of urban women but their rural contemporaries especially those of the backward castes or scheduled castes or scheduled tribes continue to suffer at the hands of the upper or the dominant classes. These women often work as indentured laborers or more often as petty laborers under the dominant caste. The owners exploit them physically and mentally taking advantage of their under privileged economic and social status. Still, their ordeal is far from over.They are driven away, insulted, face character assassination or forced to withdraw complaints, compelled to accept monetary compromises by the insensitive police personnel at the behest of the dominant class.Moreover, when any victim dares to raise her voice, the orthodoxy stands on its head to thwart any such attempt by leveling the charges of blasphemy and hooliganism on the religious and ideological grounds. The likes of Khap Panchayat and the “newtonian” logics behind their verdicts are the infamous examples of the same.

Easy accessibility and therefore, increased exposure to the pornographic content has been held as a provoking factor. Films, be it foreign or Indian, have been criticized of the same, though to a varying degree. However, it is merely an oversimplification of the issue. Increased accessibility has been the result of information and telecommunication [IT] revolution which is just a twenty year old phenomenon. Hence, had it been responsible then gender inequality, domestic violence or sexual assault shouldn’t have existed in the pre-IT revolution years. But this is not the situation. An extremely ludicrous explanation tendered is that pornography and films renders the libido of men uncontrollable thereby transforming them into wild, lusty savages. Thus, they produce an absurd generalization and an extremely unflattering portrayal of all Indian men as sexual predators. An equally ridiculous assumption is that proscribing them is the solution.

Western culture and its influence are advocated to be the raison d’être by the conservatives, religious god men, fundamentalists and many political leaders. Their highly bizarre and irresponsible statements are nothing more than their nervousness and fear of the changing social order.The past is meaningful only when analyzed with the coordinates that help us perceive the present. The study of history and tradition is rather a mode of coming to terms with the present. Gandhiji had remarked, “It is good to swim in the waters of tradition but to sink in it, is suicide.”

A recent and comparatively more dangerous is the cult of romanticizing her sacrifices and her ingenuous ability to do all and baptizing her as a “superwomen.”Post feminism is women’s supposedly free abandonment of the fight to secure gender equality in favor of the “celebration” of traditional womanhood. Post feminism has always been a patriarchal ploy to keep women powerless in the face of feminism’s gain. In developed economies, women have begun to see it for what it is and it is time we see through the oppressive myth around womanhood generated by our own culture. Women despair of pursuing their professional life in trying to live up to the mythical yet expectant standards.

Law Enforcing Machinery

We have excellent statutes to deal with crimes against women, but we don’t have the police machinery to implement them in spirit. Most of the rape cases (almost 50%) in India go unreported.The reason being insensitivity of the police personnel.Instead of performing their lawful duties they resort to criticizing, abusing and sometimes even assaulting her. Stating that police harbors contemptible thoughts about rape victims is no exaggeration. Quotes like “it [rape or gang rape] was a consensual act” or the victim “was habituated to sex” or “the victim has an immoral character” demonstrates the extreme insensitivity of the law-enforcing machinery.

Instead of guarantying a secure society for the females, the “guardians” of law have also been involved in appalling acts of custodial rapes. A landmark judicial pronouncement for the same is Mathura Rape case [FOOTNOTE 1], in which Mathura, a 16-year-old tribal girl, was raped by two policemen in police station.

Another facet is the Armed Forced Special Powers Act [AFSPA] which has been in operation for around fifty years in Manipur and Jammu & Kashmir. Initially it was clamped to counter the insurgency in these states. Unfortunately, the personnel of the Armed forces have been accused of many instances of custodial rapes. The constitutionality of AFSPA has been challenged in the Supreme Court but the government of India has time and again bowed to the pressure of the Ministry of Defense [MoD]. The MoD seems to have an understanding that AFSPA alone can prevent the resurrection of the insurgency in these states. They have successfully thwarted all the attempts to repeal of AFSPA.

Indian Laws

As per the Indian penal code, the section 376(2) (g) defines gang rape. The punishment prescribed is a rigorous imprisonment for a term which shall not be less than ten year but which may be for life and shall also be liable to fine.However, certain laws have existed or are existing which contradicts the principle of dignity of women.

One such provision was under the section 327 of the Code of Criminal Procedure, 1973. It stipulated open court trials to grant accessibility to all. It discouraged the victims from pursuing the legal remedy as the process of cross-examination was humiliating and the trauma unbearable. Thankfully, in-camera trials were made mandatory for gang-rape or rape cases as per the amendments of the Act of 1983.

Perhaps the most debasing of all was the section 155(4) of the Indian Evidence Act, 1872. As per this section, if it is proved that the victimized woman is of immoral character or is habituated to sex then her evidence will not be taken into account as her immoral character makes her unworthy to do so. It was unconstitutional and infringed the right to equality before law and equal protection of the law guaranteed by Article 14 of the Constitution of India. Therefore, when the laws are inherently biased against the victim, how can they be assured of justice?

114A Indian Evidence Act, 1872 [FOOTNOTE 2] entails that in the prosecution for rape under clause (a) or (b) or (c) or (d) or (e) or (g) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

In Vishakha vs. State of Rajasthan a non-governmental organization working for gender equality, had filed a writ petition seeking the upholding of the fundamental rights of working women under Article 21 of the constitution. The immediate reason for the petition was the gang rape of a saathin (a social worker involved in women’s development programs) of Rajasthan in 1992. The assault was an act of revenge as the saathin had intervened to prevent a child marriage. Supreme Court provided a landmark judgment on the area of sexual harassment against women.

Justice Verma Vs the Anti-Rape Law, 2013

Justice Verma performed an exemplary job through his recommendations on protection of the right to dignity, autonomy and freedom of the victims of sexual assault and rapes, electoral laws, policing, criminal laws, AFSPA 1958 and provisions for safe public space and mobility for women and children. However, the government’s Anti-Rape Law, 2013 is a piecemeal solution which is highly unlikely to spur any change.

Legalizing the capital punishment in rape cases could never be the solution for two major reasons. Firstly, now the probability is quite high that the victim will be killed and their bodies disposed offin order to avoid detection of the crime. Secondly, it will serve as deterrent for the victims to report the crime as 90% of the perpetrators are an acquaintance of the victim like father, brother, uncle or cousins. Hence, the family pressure under the garb of honor and shame will subdue the voice of the victims.

The concept of “command responsibility” which could be the middle-way to AFSPA impasse was also rejected by the government.The requirement of seeking prior sanction before instituting a criminal case against any personnel accused of any sexual assault under section VI, AFSPA 1958 is still in force. This will only enhance the sense of impunity. Violating the human rights and fundamental rights guaranteed by Article 14 and 21 should necessitate an appropriate legal enquiry at all costs. It will make the armed forces stand in good faith and elicit more cooperation in their anti-insurgent operations. Sadly, the arguments of the government and MoD are in complete contradiction to the above idea.

Several other provisions of the Anti-Rape Law, 2013 includes generalized assumptions and contentious provisions. The definition of trafficking might conflate it with adult consensual sex and hence leaves the door ajar for false convictions amounting to harassment of sex workers. It assumes an archaic and discriminatory stand by defining criminal offences as “insults” or “outrages” to women’s “modesty” rather than crimes against their right to bodily integrity and sexual autonomy.

By including penetrative sexual offenses within the definition of “sexual assault”, it fails to draw a distinction between penetrative and non-penetrative offenses. For example, the act of touching another person’s breasts will attract same punishment as penetrative sexual offenses.Marital rapes have been excluded from the ambit of the laws. Under section 375 of the amended Indian Penal Code, wives cannot bring a charge of “sexual assault” against husbands except under extremely narrow grounds: where she is “living separately under a decree of separation or under any custom or usage.” These provisions violates India’s international legal obligations to amend all laws containing gender discriminatory provisions

While I completely subscribe to the enactment and effective implementation of stringent laws, I will not undermine the role of family and schools. Institutional bashing has been the easiest and hence, the most attractive and convenient option. Moreover, laws, however stringent they are, can best serve as a deterrent not the annihilator of crime. Louis Althusser has opined, “Family is one of the most prominent ideological state apparatuses.” The shallow patriarchal mindset and conservative sexual morality are shaped and entrenched in the younger generations in their formative years. In the families today, a girl is fully assisted by her mother when hormonal changes occur at puberty. However, a similar situation with respect to boys is completely absent in nearly all families be it on the part of the mother or the father. Consequently, their curiosity is overwhelmed by the incorrect, incomplete knowledge of the peers and pornography material. And here in lies the first step towards stigmatizing sex. Ultimately, when someone transcends the societal limits of acceptable behavior, films and pornography are made the scapegoats.

A child learns the foremost from their parents and then from the teachers at school. When the educated section of men unconsciously or deliberately subscribe to such idiotic thought processes, how can we expect rationality of the lowermost section. Schools and colleges should, therefore, sink the idea of respecting their female counterparts, their bodily integrity and sexual autonomy, their equality in all spheres and their onward march to occupy more and more of the public domain. We must remember that today’s child is tomorrow’s man.

The entire onus is on men to throw off the image of a marauder pouncing upon women. Men have to accept that violence against women is not women’s responsibility. It is our duty and moral and social responsibility. We cannot be judgmental about their dressing sense or lifestyle. It is entirely their prerogative and their decision. Men have to accept it without any concessions. The only way out is that we accept their freedom, social and economic independence and their right to subjectivity.

Meanwhile as a society, we must stop glorifying women. It has to be acceded by one and all that the victim of gang rapes or rapes was not at all responsible. Ostracizing them and imposing moral sanctions will do no good to the victim or the family. Rather, cordoning her off from all such idiotic notions and people, encouraging her to accept that she was not atfault, helping her regain her confidence, accepting her back in the ranks of the society will go a long way in fighting and improving their plight.

 Conclusion

The infamous Delhi case was the watershed event for it galvanized the public opinion in an unprecedented manner. The battle for equality of rights is indeed a “war of position” where ideas are the resources. The independence struggle proved to be a promising phase for women. Gandhiji’s words to Mridula Sarabhai, somewhere in 1930s, “I have brought the Indian women out of the kitchen; it is up to you [the women activists] to see that they don’t go back”, was the clarion call to keep the wheels of women empowerment turning.  Countless localized movements have dotted the societal landscape of my country to awaken our conscious. However, what is still lacking is a massive nation-wide awareness campaign undertaken by all the major political outfits and leaders paralleling the intensity and scale of Indian National Congress [INC] in its fight against colonialism.  Unfortunately, our leaders have largely resorted to empty rhetoric and ample theatrics only. Besides an imaginative multimedia campaign, a multi-sectional approach – involving family, society, law enforcement machinery and media – is an absolute imperative.

Thus, it is indeed a Rosa Park moment for India!!


[1] Tukaram and Anr. v. The State Of Maharashtra, AIR 1979 S.C. 185 (India).
[2]  Ins. by Act 43 of 1983, section 6 (w.e.f. 25-12-1983)

Aditi Nidhi, Assistant Professor, School of Law, Christ University, Bengaluru

Email: aditinidhirmlnlu@gmail.com

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