This collection of 17 articles (including the introduction) is a must read for feminists, law reformers, lawyers and judges. It compiles a range of perspectives on the social and juridical frameworks of rape in complex and yet accessible ways. The strength of the book lies in bringing together experiences of experts with those of survivors in different genres of writing with a passionate engagement offering a challenge to the obstinate fecundity of rape culture in India. The book dedicated to the ‘women and men who fight violence on the streets, in courts and at home’ acknowledges the singular contribution of each one of us who has faced and/or fought against sexual violence. I read the dedication in specific ways.
The dedication excludes all those who script sexualized violence as the dominant way of competitive politics in India. The introduction opens with the voice of Kajal Maji, a 35-year old mother of four children, who was among the many raped women in Nandigram in March 2006. The bewildering denial of the fact of sexual violence by the CPI(M), sadly included those who have dedicated many a lifetime of alliances with the women’s movement in fighting sexual violence. Bhattacharjee points out that party-based politics operates with male defined notions of honour, power and violence, wherein rape is a routine form of reprisal in the face of resistance. She points to the way the idea of rape as a way of avenging lost honour is used in different social, economic and political formations, be it the events of Nandigram 2006 or of Gujarat 2002. By implication, the book is not dedicated to all those who claim to speak on behalf of women who have faced sexual violence, yet accept the efficacy of sexual violence as a form of terror expedient to a heterosexist notion of party based politics. This notion of politics feeds the myth of constitutional governance for women, to use Justice Baruah’s characterization, by denying women who are routinely raped of any form of substantive justice.
Nor is this book dedicated to judges who enforce compulsory heterosexuality, in this case for a minor [notwithstanding the law against child marriage], as a way of rehabilitating rape victims though patriarchal definitions of community. This is signalled by a story about a 11-year old child who was raped by a young man. In this case, the judge at the Berhampore Judges Court suggested that the accused should marry the victim and also pronounced a fine of one lakh rupees as ‘denmohar’ [bride price] (p. 11). The wedding took place in the jail after three months of incarceration. A week thereafter the accused was released. At the time of the interview, Sabina was the mother of a one and a half year old child. She was pregnant again. She was thrown out of her affinal home since the marriage was seen as a ploy to divest the husband of a dowry. This narrative shows how rape is perceived as a loss of honour to different sets of men (or male defined communities) and how the judiciary is implicated in redressing male subjectivities. Lost to us is an understanding of what it means for a minor to live with a man who raped her once, and after marriage, the experience of enforced conjugality seems to have no representation in social or judicial discourses.
The third complication introduced in the first few pages of the book is a vignette of how parents use rape as a resource for financial bargaining. Rather than go to law courts, negotiations over financial compensation, lead to delay in providing adequate health care to the victim. Medical experts tell narratives of unwanted pregnancies that follow rape when parents do not acquire sufficient medical care for the victim, and use the threat of a criminal complaint to actualize compensation. There is a further complication when consensual sexual relations are framed as rape by parents since they disapprove of pre-marital sex or a marriage of choice. This honest book begins by asserting the complications that inhere in the complaint of rape, when used by parents, police and lawyers to restore lost male honour in recovering a runaway daughter. The dedication thereby excludes parents and legal experts who name love as rape and for whom a daughter exercising her sexual autonomy is more sullying to male honour than a daughter who is publically proclaimed to be a victim of rape.
This volume indicates how the constitution of the public is foundationally based on the premise of heterosexual violence. Saswati Ghosh explores how space is gendered and how the subjectivity of women is inflected by social scripts of blame if they resist the fictional ‘rape schedule’. Ammu Joseph critiques powerfully the representations of sexual violence in the media with a plea for the need for sensitive guidelines for the coverage of sexual violence; whereas Sankarlal Bhattarchajee analyses the Mahabharata as narrating a specific imagery of rape and abduction that continues to remain a representational resource. Nilanjan Dutta and Soma Ghosh begin their essay by challenging prevalent political representations that West Bengal is ‘safe’ for women by citing NCRB statistics (2004–5) wherein reported rape in the state had the distinction of being the second highest in the country. The discussions of mass rape in Gujarat, as indicated in the excerpt reproduced herein from the IIJ Report or the account by Babloo Lointongbam of the North-East, powerfully draw our attention to how structures of immunity produce and normalize sexual and reproductive violence. Lamentably, the lack of justice in military courts remains outside mainstream research on sexual violence. Every essay in this volume reinforces the point that the struggle against all forms of sexual violence requires an understanding of the extent to which such violence is routinized through different representational regimes.
By not giving up on the project of trying to change the terms of legal discourse, and being mindful that we cannot afford to do otherwise, since every question asked by a defence lawyer in a rape trial intends to humiliate and blame the victim, this book assembles commentaries on legal discourse by eminent feminist lawyer Flavia Agnes and a former Judge of the Calcutta High Court, Justice Arunabha Barua (who also participated in a gender sensitization project at the University of Warwick in 1996). The articles by Flavia Agnes and Arunabha Barua show how the rape law routinely silences women by converting testimonies of coercion into salacious narratives of consent. Equally it demands recognition that sexual abuse is perpetrated in the confining contexts of the familiar and the intimate. Justice Barua, for instance, questions the basis for the continuance of the colonial criminal law exemption which prevents women, older than 15 years of age, from prosecuting their husbands of rape. The lack of the possibility of prosecutions of rape in marriage raises poignant questions about how the idea that marriage is the destiny of every girl enforces sexual violence as the condition of life. However, this collection is somewhat silent about the questions about sexual autonomy that have been raised by the queer sexualities movements.
Even after the 1983 amendment, Agnes notes that the outcomes of rape trials continue to produce judicial pornography, despite the discursive shifts in appellate law. While judgments in courts of appeal decry the humiliation that inheres during the cross-examination, courtroom practices seem to innovate newer ways of injuring rape victims. To substantiate Agnes’ argument, I recall Yad Ram v. State of Rajasthan , wherein the Rajasthan High Court castigated the trial court for being a ‘silent spectator’ during the cross-examination of the victim—who was not only asked in which posture she was raped but was made to demonstrate the same by lying down on the bench in the courtroom. The High Court however did not initiate any disciplinary steps against the defence lawyer or the judge for allowing this ritual of humiliation.
Parul Sharma’s essay on ‘Rape, Mental Injury and the Law’ rightly points out that the rape trial itself produces mental health problems for the rape survivor which, Sharma argues, even the sensitive appellate judgments have blithely ignored. She concludes that it is not enough for lawyers to be socially aware but that the legal process needs to incorporate expert knowledge which is oriented towards therapeutics. The formulation of rape as a public health problem in Madhumita Dube’s paper in this volume draws attention to the need to think of the complex links between sexual and reproductive health wherein sexual autonomy is critical to defining women’s well being. Sexual violence remains the material condition of women’s lives leading to several common gynaecological disorders such as chronic pelvic pain and hysterectomies, sexual dysfunction, post-traumatic stress, and depression. The struggle with everyday forms of ill health that afflict women’s bodies and minds following sexual violence however remain unrecognized in legal and medical regimes of regulating our lives. Dr. Apurba Nandi and Sandhya Srinivas point towards the archaic medico-legal procedures that subject rape survivors to trauma prior to the trial. The emphasis of the medico-legal procedure remains biased to producing evidence that meet masculine standards of proof. Hence, Nandi cautions experts that ‘victims should never be made to walk undressed or partially dressed’ when they note the gait of the victim (p. 195). Medical experts routinely use the ‘two finger test’ to verify if the hymen is distensible. Nandi however does not question whether this test can reliably establish whether a woman is a virgin or ‘habituated to sex’, a category routinely used in medico-legal certificates. Sandhya Srinivasan rightly critiques medical practice and medical textbooks as techniques which convert coercion into consent. This is an important critique since the ‘scientific’ voice has a critical role to play in establishing the veracity of a rape complaint.
Susama Agarwal’s account in The Telegraph, entitled ‘I am not a victim’ details the encounters with the law as points which render the suffering of rape opaque. It is poignant that the desire to watch the sunset by oneself is seen as sufficient provocation for gang rape. This powerful article testifies to resistance to the idea that rape is a form of social death. In an autobiographical voice, she points to the way in which even feminists who understand the theory of rape, in a situation of friendship blame the (‘bad’) victim for not having taken enough precautions. It is a remarkable piece which argues for punishment which is just without being vengeful. We note that her anger returns to critical reflections on the structural conditions of violence rather than harbouring passion for revenge—the latter predominates the issue of capital punishment.
The articles by Vir Sanghvi and Partha Chatterjee flag sexual violence, especially child sexual abuse that has been used to justify the continuation of capital punishment. Partha Chatterjee’s article in The Telegraph published a few weeks prior to the execution of Dhananjoy Chattopadhyay on 14th August 2004 appears in this collection. He argues that the challenge to death penalty provided potentially the opportunity to move away from the notion of punishment as revenge and challenge the idea of the modern nation state as divine (since the state can only protect life and not give life). The idea of capital punishment is challenged on the grounds that ‘revenge is not the aim of punishment even for the most hateful criminal’ (p. 103). This argument has important resonances in the current formations of the security state, yet its promise was not realized then or now. Even though capital punishment has been meted out in the name of child sexual abuse, it is a matter of public record that there is hardly any political will to bring in laws that would replace existing definitions of rape that do not cover all forms of sexual abuse that children routinely face. Sexual abuse of children which does not entail penile penetration of the vagina is not rape in India. Sexual abuse of children which involves penile penetration of other bodily orifices is clubbed under ‘unnatural sexual offences’, which is a colonial law meant to criminalize what was perceived as non-procreative sex between men and men, and men and women with or without consent. Not only is child sexual abuse used to justify capital punishment, Indian legislators continue to use our children to prevent the de-criminalization of homosexuality. However, the voices of children who have been raped continue to meet elision in courts of law in different ways. Sudhir Kumar Rai’s account of children’s speech reflects how rape is constituted through adult categories—wherein children’s bodies are sexualized through adult categories of blame, sexuality and morality.
From these essays, we may conclude that whilst the notions of consent have been interpreted alongside the right to life constitutional provisions by the appellate courts, judicial understanding of how to treat a rape survivor requires revolutionary praxis. The collection of articles urges us that sexual governance that normalizes the violence of rape is at the heart of the myth of constitutional governance. To continue to marginalize the project of understanding the violence of rape to the work of a few activists, lawyers and survivors, is to distort our understanding of the work of power and how governance is actualized.
Pratiksha Baxi is Assistant Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi.