Going through the raging but tiringly repetitive debates on rape, what becomes clear is that Gender is a social system that divides power in India.
Women remain abstract persons with abstract rights. So the State is either seen as a tool for betterment of women (Beti Bachao Beti Padhao, making the streets safe, well-lit and better policed) or else the fate of the rapist and his victim are to be left in the hands of the civil society to take care of (thus Jaya Bachchan urges that rapists be lynched and Swati Maliwal threatens to sit on a dharna demanding that rapists be hanged by the end of the month).
Our attitude towards issues like rape, pornography and sex discrimination remains schizoid. We want rapists apprehended and we want them punished. But on issues of the death penalty, denial of human rights or the right of the perpetrators to a mercy petition or chemical castration, we remain ambivalent.
Since the Verma Committee tweaked the older rape laws, the law has begun accepting a distinction between sex and gender. But when one reads the judgments allowing young women to enter a temple or a shrine, the matter of female sexuality discussed and adjudicated upon, women are not seen as having an agency of their own like men. Menstruating women entering a temple then suddenly becomes a social question or a question belonging to a certain faith or custom and adjudicated not as a basic right of a citizen.
Our laws so far have not confronted the relations between the State and society fully. So in the case of the Sabarimala temple, the sole woman judge on the bench put in a dissenting note, linking the denial of entry to young women to age old religious taboos, saying religion being above rational thought, the taboo should not be removed on Constitutional grounds. The final judgment in the case is yet to come. The way serving of the final sentence on the perpetrators of Nirbhaya’s rape and murder has been delayed for five long years, we realise how a dual view complicates the question when adjudicating on rape and sex.
A woman’s sexuality becomes akin to what manual labour is to asset-less daily wage workers. It is something exclusively their own but also what is taken away by the more powerful and in a blink. Women come out even worse off than men of their own class, because before a woman can experience her gender as ‘her’ reality, before she can learn, like a boy, to calculate its true worth and the language to articulate her experience of it, she has lost her power over it.
Thus, the Home Minister in Telengana asks incredulously why the victim chose to call her sister for help when she could have called the police on 100 and saved herself? One recalls another notorious Godman (now in jail), saying about Nirbhaya, why did she fight back? She should have fallen at the feet of her rapists, called them brothers and beseeched them to spare her, he had asserted.
The realisation that the world over men control power, and their control over women is ultimately rooted in both her sex and gender, hit one between the eyes as one saw Christine Blasey Ford testifying before the US Senate Judiciary Committee.
Even as she made well substantiated allegations of sexual misconduct against the Presidential nominee for becoming a Supreme Court judge for life, Brett O’ Kavanaugh, she was unsure if her testimony would be taken seriously by a Senate Committee that was overwhelmingly male and conservative.
She said: “I was…wondering whether I would be jumping in front of a train that was headed to where it was headed anyway, and if I would be just personally annihilated…But I am so tired of watching us jump...The #Me Too movement lurches forward over a path of scars”.
She was right. After a stormy hearing, an uneasy calm hung over the listeners, punctuated by cynical sniggers. And finally, Kavanaugh was cleared for the high office. Christine’s testimony as a woman victim of gross sexual abuse was reckoned not so much by her actual experience, but her gender. This was not equality under law, a theory that links life and law in case of a man.
It revealed to women the world over, how the male viewpoint still remains the final arbiter. Men vastly outnumber women in law making bodies across the globe. Since the ancient Greeks, it is men not women, who have made and passed laws in Parliaments and supervised their enforcement. The entire legal process remains based solely on the male understanding and experience of societal relationships and needs of both men and women.
“Political revolutions aim to change political institutions in ways,” wrote Thomas Kuhn, “that these institutions themselves prohibit.” Liberal legalism is thus a product of a society and its power elite. And that fact has made male dominance in society and the courts invisible and legitimate. However autonomous of caste, class and gender, the Indian state may be on paper, male power within the system- in legislature, in judiciary, in the bureaucracy and the media, is systemic, coercive and the only legitimate and epistemic stance.
This is the view women have internalised over the centuries as the only view and the right view. So they at best, take a protectionist approach like Swati Maliwal going on a fast to secure justice for a victim of rape, or shout out like Jaya Bachchan saying throw the perps to the lynch mobs!
“With all the historical baggage we carry,” wrote late Justice Leila Seth, one of the truly emancipated legal minds India has produced, “it is difficult to understand and appreciate true equality…there are no definite parameters. What might have looked just and fair a century ago, in the manner of the treatment of women, no longer looks just and fair...”(Talking of Justice –p24).
So today gaining the right to enter temples or dargahs or decriminalising the LGBTQ community or adultery, good and progressive steps though they all are, are not likely to speed up India’s race towards true gender equality. Nor can they reduce the number of rapes taking place.
Some verdicts have provided women opportunities through cracks in the wall between law and society. If the real nature of crimes against women are to be really understood and defined legally, we must focus on women’s own concrete experience, not the prevalent abstract legalities. The system must learn to look into the eyes of a Christine Blasey Ford or victims of various so-called holy men, or the unnamed young lady from Meerut beaten up by cops for being in a relationship with a Muslim.
Women experience inequality both at home and the workplace, are targeted for rape and molestation, domestic violence and systematic sexual harassment of all kinds, within homes and out on streets in specific social contexts propelled by local
power hierarchies. Unless these contexts are removed and the state bodies restructured, even the most progressive laws will manage to only scratch the surface.
See what is happening on social media. In most women’s experience, our laws for freedom of speech protect male stalkers and paid trolls in cyberspace, who make unmentionable threats and offers to women who dare to fight back the bullies.
If sexuality is indeed central to a woman in India and forced sex is central to the average Indian man’s idea of sexuality, then rape remains indigenous, not exceptional in most women’s lives, especially if they are poor and mobile.
Laws on privacy protect the view that within conjugal bedrooms, sex is always consensual and so we refuse to recognise marital rape. Since our laws of child custody are weighed in favour of male partners as having better means, income and social status, many dysfunctional marriages survive at the cost of the wife’s mental and physical wellbeing. Grossly cruel and uncaring husbands manage to control wives through threats of physical harm and loss of their children.
Like Nirbhaya’s mother, most women get the message that laws against rape are almost unenforceable. No victim of rape believes that the police or the legal system would see the rape as they do. Often, they are not wrong.
Instead of deterring or avenging rape, the State in many victims’ experience (or their families’) seems to prolong or perpetuate it.
Gender equality, therefore, requires structural changes, not reflection, hand wringing or sitting on a day long fast.