For 25 years women's rights advocates have been campaigning against violence against women. They have succeeded in changing the law, changing the stand of the judiciary. But have they succeeded in changing social attitudes, asks Flavia Agnes, lawyer and noted activist
On November 25, 2005, a news article appeared in The Times of India about a minor girl allegedly raped by her father withdrawing her allegations. The High Court of Himachal Pradesh had earlier acquitted this man saying that there were loopholes in the story and it was not plausible. However, the Supreme Court in November 2005 had overturned the High Court judgment and awarded the father a life term. And then the daughter said in a sworn statement that her father was innocent, and that she had framed him at the instigation of her mother. What happens to the punishment given by SC now that its very basis has gone?
For 25 years, the autonomous women's movement in India has grappled with the issue of violence against women, and more particularly sexual violence -- rape and domestic violence. At the end of it, and in the middle of this international fortnight raising awareness about violence against women, we are confronted with this news item.
For 25 years we've tried to call attention to the fact that women are raped. After all this, when the Supreme Court sees rape as a human rights violation, they are confronted with this girl withdrawing her statement, and saying that she was instigated by her mother to file the complaint against her father. We're back to where we started: women are liars; half the rapes reported don't really happen.
Where has the movement gone wrong? Is there a need to say something different, something new, something more complex?
There was another story in the same edition of the newspaper. It was about a girl, just a few days short of her wedding. The boyfriend met her. Without the knowledge of the family, she went somewhere else, near a cemetery. And he says: prove your love for me. She says: I'm willing to die for you. He says: Lie down on the road. And he drives over her three times. This is the other side of the coin. This is where half our girls are - educated, stylish and modern, yet wanting to prove their love to the boys they are getting married to, and getting ready to do anything at all. He thought she had died. She is in the hospital. Maybe when she is better, she will want to marry the same boy.
These are educated, economically sound families. Our concepts about violence against women must change. How do we confront this message that women are liars? Most women don't talk, but those who talk are liars. Or something is wrong with her, she has a boyfriend, something must have happened, that's why men behave that way, that's why he hit her. Some justifications will be added in with the story.
We thought we were making big changes -- changing the judges, changing the law, changing the court, changing everything, changing social attitudes. And 25 years later, we see the next generation saying the same things and this brings me to the question: where did we fail? How do we consolidate the campaign against violence today?
A feminist framework for rape and sexual abuse
Let's go back to 1980, to the Mathura rape case. A young tribal girl, a maid working in somebody's house, an orphan, was said to have eloped with her boyfriend. But an orphan, illiterate tribal girl working as a maidservant does not have the agency or social space to elope. She was induced into an elopement by the nephew of the mistress of the house she was working in. She was raped by two police constables at the police station.
But how she came to be at the police station is to me, important. Her brother brought her in. Patriarchy doesn't operate only at the father's level. Patriarchy operates at the next level and operates much more viciously and crudely at that level (where for instance the brother says -- she's coming home late, she's talking to the boys; everybody at college is talking about her). She had no parents, so her brother went and complained. Then the Nagpur sessions court said Mathura is a liar, Mathura made up this whole story. She wants to sound virtuous in front of her boyfriend and brother so she said she was raped. So the policemen were acquitted. It goes on appeal, and the High Court says no, acquired acquiescence is not consent, and they punish the guilty policemen. The case goes to the Supreme Court. The Supreme Court reverses it. It changes the conviction into acquittal -- we uphold what the sessions court says, that Mathura is a liar.
Why did the court think she had made up the story? There were no injuries on her body. According to the Supreme Court, if she was virtuous, she would have guarded her virginity and chastity more than her life. They said that virginity is the most precious thing for an Indian woman. Hindu women will not easily lose their virginity. Does this mean that other women will? Hindu women won't, Indian women won't, but foreign women will? Upper-class women will not, but for tribal women rape is part of their culture? So we have already marked out which group, class and community find virginity and chastity most important.
This is the understanding of rape that we have today: that rape is worse than death. And since there were no injuries on her body, she does not consider her virginity more important than her death. And if you have lost your virginity at a pre-marital stage, then how can you be worthy of justice? Because you have to come to court with clean hands...you have to come to court worthy of justice and you should be a woman whose rights need to be protected. Mathura wasn't one. A tribal girl, whose virginity had been lost, is available for rape to all and sundry. This is the situation we started with in 1980, with how the Supreme Court reasoned, how the Supreme Court thinks of bodily autonomy, the bodily integrity of women. That when there are no injuries, there is no rape.
When I come here today to give this lecture, and for this campaign, and see this one judgment in the newspaper about the girl who has withdrawn her statements against her father, I feel our entire campaign has collapsed. We know the number of rapes that occur. Out of that the number of rapes that get actually reported, out of that how many get charge-sheeted, and how many get to the sessions courts. It has taken us 25 years to change the framework of rape from rape to sexual abuse. And to get it acknowledged that sexual abuse is not something that happens outside: brothers can abuse sisters, and uncles can abuse their nieces, fathers can rape their daughters.
Post-1995, we had come to this situation of looking at rape in a much more complex manner as sexual abuse. Sexual abuse of minors, non-penetrative sex, insertion of objects, oral sex...a whole gamut of sexual abuse has been brought under this new law that has been formulated. The whole confines of the earlier law which according to me was extremely patriarchal, said that only penetration is rape, and there's nothing else. Now we have come to a point where we say that a whole lot of sexual violations of a woman's bodily integrity constitute offence.
Stricter punitive measures aren't enough
When we started, we did not have the confidence to have a feminist framework for rape. The framework continued to be patriarchal, where there had to be some penetration. What we wanted was more stringent punishment. What did we ask the State? Increase punishment: seven years minimum punishment, ten years for aggravated. And we got it.
We didn't even get the Evidence Act changed: Section 155 clause 4, where past sexual history cannot be brought into a rape trial. It got amended in 2003. This law was used to humiliate women and girls who are ready to file a complaint and whose case goes up for trial: who's your boyfriend? What kind of mother? Is she divorced? There were a whole lot of things you could humiliate the girl with on the basis of her sexual behaviour, not only with the man in question, but with anybody. That became a defense for the accused, but still we didn't get it. What we did get was an increase in punishment. Is that enough?
Take the issue of dowry and dowry deaths. All of us who campaign against violence against women, campaign against these two issues -- rape and dowry death. We believe that death happens in the homes of women in the case of dowry death. The death is related to dowry. All our laws were based on this premise -- 304B on dowry death, 498A related to cruelty to the wife, where one of the major causes is dowry harassment. Dowry is the culprit, we said. The slogan was, 'Don't give dowry, don't take dowry'. But we didn't question that if this girl doesn't get dowry, what does she actually get when the patriarchal biases of the family still operate so strongly? So first the girl was to be married off with dowry, now she is to be married off without dowry. Don't give gifts. Don't give dowry. Don't give anything to the girl. Don't come back. Stay there till you die, and if you die, we will make a case to get the dowry back.
But is violence against women always related to dowry? All the cases of boys throwing acid at women who have thwarted them are not related to dowry. In every case the mother-in-law need not harass the daughter-in-law for dowry, but it took us 20 years to say that violence is not just about dowry. Domestic violence is not always linked to dowry.
First and foremost, why do we need to marry off the daughter? She can have a good job, she can be a social worker, but she's not complete if she's not married. Why is rape a state worse than death? Because now, the Supreme Court said, she can't get married, because her virginity is lost. Parents would put a rape as well as an incident of consensual sex on the same level, because in both cases they cannot marry off the daughter to somebody else. These are the issues we really need to think about. Even if girls are allowed to study, generally it is up to a certain level. Even if they are well-educated, they are not allowed to work. Or they can work under restrictions. Why? So that their chances of marriage are not marred. If you've studied more, then where will you get suitable boys? In our society, the boy should have studied more than the girl.
In the end it comes back to the fact that the girl's parents are responsible for getting her married, and for not allowing her to come back, for making her stay in the marital home. The patriarchal mode continues to operate in her home as much as or more than in her husband's home. How are we going to change these social attitudes?
We had a case in Pune, the Manjushree Sarda case, of a husband murdering his wife. The husband was having an affair and the woman was depressed, so she wrote letters to her mother saying she was very depressed. The husband worked in a chemical factory. The poison he administered to her is not available over the counter, but it is available in the factory where he worked. He administered the poison to her. All her letters were read in court. They said that she was depressed, and wanted to die. The man was acquitted. Not only was he acquitted, but while the trial was going on, somebody else gave their daughter to this man. While this campaign was going on. So do you think all these stricter punitive measures will help us? Something much deeper is wrong here, and the campaign against violence against women needs to address that. We need to find a way to bring about fundamental changes in mindset and attitudes.
Right to Shelter and domestic violence
It took us 25 years to realise what domestic violence is, and that the Domestic Violence Act, which punishes the husband and keeps him under lock and key, is not the answer for her survival, because if he is behind bars, what will she eat? Only if he works, can she eat. And, if it's a civil imprisonment, she has to pay to keep him there. Today, for the first time we recognise that the woman who suffers violence needs shelter. Denying that shelter is violence against women. You don't have to beat them, this is a form of violence, too. A lot of women suffer not because of dowry. Their salary is taken away. Their husbands are having affairs. The threat of being thrown out is constantly given. We need to look into the concerns of modern women. We still go under the law of maintenance. Half the women don't need maintenance, as they are working, and anyway a lot of them are not entitled to it. What they need is the right to shelter -- a roof over their heads. In the new Domestic Violence Act, for the first time we recognise that a woman needs a roof over her head. This remedy could have been used even earlier by innovative lawyers to get an injunction saying that this woman cannot be thrown out of her home. It's not stricter punitive measures that we need - it's innovative and activist lawyers who will fight for women's rights.
Rakhmabai as an icon for the women's movement
There is a need for the women's movement to take stock of our history to find inspiring icons who personify the credibility of our resistance.
Rakhmabai was a very important icon of the women's movement. She was from the carpenter caste. She was married when she was 13 years old. In the case of child marriage, the girl was not sent to the husband's house until she grew up. Then there is a second ceremony. When Rakhmabai became an adult, her husband asked for her. She refused to go. There was a case for restitution of conjugal rights, in 1884, where the first judge said that there is a difference between restitution of conjugal rights and institution of conjugality. Only if conjugality has been instituted and then the girl has left, can we restitute conjugality. But we cannot put the girl there for him to have sex with her: that is not what the law says. Everybody against child marriage supported her and the others supported the husband. That's how the case was fought. And in appeal, the two judges said, no, she must go back. But Rakhmabai still stood her ground. She stood there and said, send me to prison, but I will not go back to my husband.
After 25 years of our campaign against violence, why don't we adopt Rakhmabai as our symbol of strength? Why do we look for international symbols? Unless we understand our own history, how will we fight this battle?
In 2005, we're still talking about women having to uphold family pressure, family honour, family this and that. Why don't we carry the tradition of Rakhmabai?
(This article is based on a public lecture by Flavia Agnes, lawyer and women's rights activist, in Pune on November 26, 2005. The talk was part of a fortnight-long campaign against violence against women, coordinated by the Centre for Communication and Development Studies and its outreach programme, Open Space.)
InfoChange News & Features, December 2005