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Feminism as an ideology has always been misunderstood to be singular when it includes plurality of thoughts. The fact that there are divisions amongst the feminists results in no uniform response to the institutions of caste, class, religion and state. This paper focuses feminism’s relationship to law and judiciary in India, which are an extension of state as an institution. The liberal feminists have been invested in making changes in the society through the institutions of State, especially judiciary by using the rights based approach. Whereas the radical feminists think that the institutions itself are formed under the structure of patriarchy and therefore approaching them is not going to solve the problems women face. In such circumstances, the successes and failures of law as a feminist intervention vary from each of these schools’ perspectives.  In this paper, the need for a feminist reading of laws and adjudication processes is discussed through some of the landmark judgments in the country related to sexual harassment and rape.

As discussed earlier the reading might different point of views as the ideology embraces different approaches. In 2012 after the Delhi gang rape, almost everyone on the streets demanding justice for the victim and on a larger front changes in the system. Although this brutal rape had got everyone together they were not speaking in one voice. Demands for chemical castration and death penalties vied for integrity, their rights over public spaces and the city, as well as anger over the policing of women’s behaviour for their “safety”.[1] Prof. Vibhuti Patel and Radhika Khajuria, in an analysis of political feminism in India note the difference of approaches of feminist thinkers in India towards the issues faced by women.[2] The differences, they witnessed, were however analytical differences in the approaches of the various groups, particularly between groups affiliated to the left parties and between the autonomous women’s organizations with the former placing violence against women largely within the framework of class and capitalist relations of production, while the latter primarily saw patriarchy and power relations as the main reason for violence against women.

The need for feminist jurisprudence in India gained momentum after the Mathura rape case in 1972. Mathura, a 16 year old tribal girl was gang raped by policemen while she was in their custody in the Chandrapur, Maharashtra. The culprits were acquitted by the Supreme Court in verdict delivered on September 15, 1978. Many lawyers, legal scholars and feminists disagreed with this decision was based on reasons like ‘there was no stiff resistance and the alleged intercourse was a peaceful affair’. In an open letter by four law professors - Upendra Baxi, Vasudha Dhagamwar, Raghunath Kelkar and Lotika Sarkar – they wrote –

Your Lordship, does the Indian Supreme Court expect a young girl 14-16 years old, when trapped by two policemen inside the police station, to successfully raise alarm for help? Does it seriously expect the girl, a labourer, to put up such stiff resistance against well-built policemen so as to have substantial marks of physical injury? Does the absence of such marks necessarily imply absence of stiff resistance[3]?

This process of adjudication according to some of the feminists is because the law inherently is a structure which is based in a patriarchal setup. The argument of feminist jurisprudence is that laws should be made from a feminist point of view so that they are more inclusive. As Ann Scales says in her paper on feminist jurisprudence –

Law must embrace a version of equality that focuses on the real issues-domination, disadvantage and disempowerment-instead of on the interminable and diseased issue of differences between the sexes.[4]

For liberal feminists the existence of law in itself is a step forward but for the other schools it is just another false promise by the larger patriarchal set up. Upendra Baxi, in one of his writings on judicial activism he says –

Social/human rights communities in India have, unfortunately, still to learn, that this last, best hope for the bewildered and the oppressed is, after all, a frail vessel for messianic hopes for the renaissance of Indian civil society and state. The wise one amongst them, however, risks the expansion of activist judicial horizon. Even they need to learn, alas! the logic of limits. Courts are, at the end of the day, never an instrument of total societal revolution; they are, at best, in the images of Roscoe Pound and Karl Popper, instruments of piecemeal social engineering. In other words, activist courts are never a substitute for direct political action, including mass politics of direct action.[5]

Similar narrative was repeated in the famous case of Rupan Deol Bajaj vs KPS Gill (1995) which changed the rhetoric that incidences of harassment happen only in the lower and middle classes. The fact that Gill was a national hero who fought against terrorism in the Operation Black thunder; it was a shock for everyone that such allegation would affect his stature. Though the law pronounced him guilty, Kannabiran and Kannabiran, in their paper take examples from the newspaper articles where the language communicates the biases the so called ‘progressive’ English press has towards women. They quote from an editorial piece in Deccan Chronicle which says –

"It somehow makes the law of the land look grotesquely odd and incongruous that a man who has done signal service to the country by ridding a state of the dread and oppression of terrorism should have to spend five months in jail for a minute's exuberance provoked by the charms of an attractive working woman" (editorial, Deccan Chronicle, August 8).[6]

It is very difficult to accept for a medium as neutral as media to accept that the man is nothing but an oppressor. It is also because class and caste plays a very important role in the oppression of women. The triple patriarchy – imposed by upper caste men and women and Dalit men – which a Dalit woman is subjected to cannot be understood only with a feminist lens and solved only through law. As Kannabiran and Kannabiran, in one of their papers which looks at caste and gender, observe that “gender within caste society is thus defined and structured in such a manner that the 'manhood' of the caste is defined both by the degree of control men exercise over women and the degree of passivity of the women of the caste”.[7]

Measuring, therefore, successes and failures of law through a feminist lens is complex because of the limits law has, layers of disadvantage women face in Indian society and different ideas feminism embraces. Women’s movements across the nation can be a site where the struggle for equality in the society has been fought continuously. Despite the differences of opinion present in the movement, an “overarching solidarity among women was maintained based on the assumption of commonality of women’s experience that cut cross caste, class, and religion”.[8] Some of the movements in the 1970s such as Nav Nirman movement, SEWA and Chipko were successful large scale women’s mobilization and initiated conversations to question patriarchy. They attacked the patriarchal notions of law and this sparked the debate amongst the political and legal streams about the burden of proof.

But what matters is a search for liberation from the colonial and male-dominated notions of what may constitute the element of consent, and the burden of proof, for rape which affect many Mathura’s on the Indian countryside.[9]

Lotika Sarkar comments on this nature of engagement of women’s movement with legal system. She points out that the excessive dependence on reforms is still present in the new kind of women’s movements post 1990s.[10] Is it because that law inherently is masculine in nature and masculinity makes everything sound universal? This can be one of the reasons as MacKinnon notes that male dominance considers particular to be universal and its control is considered as the definition of legitimacy.[11] Or is it the other argument that law cannot capture the lived realities of the society? The objectivity through which the law looks at society is inadequate to solve the issues of gender, caste or religious discrimination. Feminists like MacKinnon argue that this objectivity comes because of the male gaze of law. In the Indian context, it’s a complex combination of male gaze and the Hindu caste hierarchical structure. For law to be a successful feminist intervention, in India, it has to navigate through the barriers of caste, class and religion. 

 

 

[1] Chigateri, Shraddha, Mubashira Zaidi, and Anweshaa Ghosh. Locating the Processes of Policy Change in the Context of Anti-Rape and Domestic Worker Mobilisations in India. Research Report. Geneva: UNRISD, 2016.

[2] Patel, Vibhuti, and Radhika Khajuria. Political Feminism in India: An Analysis of Actors, Debates and Strategies. No. id: 11349. 2016.

 

[3] Baxi, Upendra, et al. "An Open Letter to the Chief Justice of India." Supreme Court Cases 4 (1979): 17-22.

[4] Scales, Ann C. "The emergence of feminist jurisprudence: An essay." The Yale Law Journal 95.7 (1986): 1373-1403.

[5] Baxi, Upendra. "The avatars of Indian judicial activism: Explorations in the geographies of [In] Justice." S. Verma and Kusum (eds) The Indian Supreme Court: Fifty Years Later (2000): 156-209.

[6] Kannabiran, Kalpana, and Vasanth Kannabiran. "Gendering justice." Economic and Political Weekly (1996): 2223-2225.

[7] Kannabiran, Vasanth, and Kalpana Kannabiran. "Caste and gender: understanding dynamics of power and violence." Economic and political weekly (1991): 2130-2133.

[8] Ibid 1.

[9] Baxi, Upendra, et al. "An Open Letter to the Chief Justice of India." Supreme Court Cases 4 (1979): 17-22.

[10] Chigateri, Shraddha, Mubashira Zaidi, and Anweshaa Ghosh. Locating the Processes of Policy Change in the Context of Anti-Rape and Domestic Worker Mobilisations in India. Research Report. Geneva: UNRISD, 2016.

[11] MacKinnon, Catharine A. "Feminism, Marxism, method, and the state: Toward feminist jurisprudence." Signs: Journal of women in culture and society 8.4 (1983): 635-658.

 

Picture Credit - The Quint

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Written By Siddhi Pendke

Social observer, feminist and a theory person

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