Practicing on the Margins of Mainstream Law—A Personal Perspective on Sexual Violence Against Women in India

By Naina Kapur

On December 16, 2012, an upwardly-mobile young woman from a lower-middle class family and her male friend saw “Life of Pi” at a theatre in New Delhi. Afterwards, they boarded a bus to head home. What would have been a common evening for young people in the city became a living nightmare for the woman even as her male companion fought bravely to save her. Knocking him unconscious, six men brutally gang-raped and tortured the woman for one hour on the moving bus. Two weeks later the she died of the brutality inflicted upon her. The incident outraged citizens all over India and led to mass demonstrations, particularly in New Delhi, against ineffectual responses to sexual violence against women. Did public outrage or calls for justice change anything?

Discussions about sexual violence have never been common in law offices or law schools, let alone amongst the Indian public. Yet from birth to death, sexual violence shapes the contours of women’s everyday life in India. That is because sex and law have traditionally been awkward companions. At most, rights such as freedom of mobility, expression, equality and life, which could be claimed as human rights for others, have historically been scripted as crime-specific when it comes to women and sexual violence. Even when sex emerged from the closet in reference to offenses against women in the 1970s, it was largely in context of the “appropriate victim” where a woman’s “passive silence was deemed consent.” Tuka Ram and Anr. vs. State of Maharashtra (AIR 1979 SC 185) (also known as Mathura’s case for the name of the victim).

Through the prism of criminal law, violence of a sexual nature in India has been characterised by fixed assumptions about women. My earliest awakening to this happened post criminal law amendments on rape sentencing in the 1980s. At the time, I was a corporate lawyer with a mainstream law firm. On a winter morning in 1989, I woke to a newspaper item reporting how the Supreme Court of India had reduced a mandatory minimum sentence awarded by the lower courts against two policemen for the custodial rape of a minor girl, from ten years to five years. The ground of the reduction in sentence was that the complainant was a girl of “easy virtue,” “used to sexual intercourse” and of “questionable character.” Prem Chand & Anr. Vs. State of Haryana (AIR 1989 SC 937). Instinctively, I scrambled to seek out women’s groups to file a review. My conservative law firm was disinclined to support my efforts until I mentioned “the firm will look good and it won’t cost anything”- a feather in the cap for any law firm.

Our review petition was heard by the Supreme Court. Standing as the only woman amongst all male counsel, I recall listening with intense discomfort to the Bench of Supreme Court Judges and others chuckle over the complainant’s “moral character” – as if to suggest the sentence reduction was well-founded. In the end, the Court upheld its earlier decision with a rider that any reference to the girls “conduct” was because of the 10-day delay in reporting the offense. State of Haryana & Anr. vs Preme Chand (1990 AIR SC 538).

How did such flawed logic become legitimate criteria for lesser justice to women who experienced sexual violence? The blinkers of mainstream legal practice dissolved and I entered the margins of legal activism or as I prefer to call it, “legal innovation.” I did not know it then, but my trajectory was always towards mapping women’s experience of sexual violence and bridging it with Constitutional Equality, a pursuit which led me to the value of experiential learning.

Travelling with a colleague to rural India, from Kerala to Kashmir, Assam to Maharashtra, we paused to ask women a simple question – “what does justice mean to you?” Across regions, language, class, caste and context, the reply was uniquely the same- “ensuring my sense of self remains intact.”

Equipped with that insight, we returned to Delhi to co-found Sakshi, (meaning “witness”) a non-governmental, not-for-profit centre to address issues realted to sexual violence. Over the years, I continued to meet women across the spectrum trapped in the lived reality of retrograde attitudes that shaped mainstream law and the larger response of a status quo. I encountered women who had suffered a variety of sexual abuse, society’s apathy to it, and the callous attitude of the judicial system. These included a housewife who felt compelled to remain in a marriage after being subjected to electric shocks in a medical facility, because her husband claimed she was not sexually “up to the mark;” or parents who paid an abusive son-in-law vast sums of money to take their daughter back to pre-empt social ostracism; or a seven-year old girl who underwent ten days of cross-examination in a court-room packed with lawyers and offenders for complaining against her sexually abusive father. And I continued to see it in the corner offices where women endured the intangible inequality of sexual harassment. None of this was conducive to legal progress let alone supportive of “that sense of self” for women.

A significant turning point emerged in the 1990s because of a rural level change agent named “BD.” Engaged by the Rajasthan State government to prevent child marriages in Bhateri District, “BD” succeeded in preventing the marriage of a one-year old in an upper caste community. From then on, she was subjected to persistent forms of indirect sexual harassment by men of that upper caste community. “BD” complained to the local authority that did nothing. Instead, as a consequence, she was gang raped by five of those very men. The Bhateri gang rape case became a renewed possibility to connect the dots between sexual harassment, rape and women’s Constitutional equality. In a class action litigation before the Supreme Court of India, we proposed that sexual harassment be recognised as a violation of women’s equality rights and that institutions be made accountable and responsible for upholding those rights. Delivering a landmark judgment in Vishaka vs. State of Rajasthan (1997 SCR 3011), the then Chief Justice, J.S. Verma, declared that “each incident” of sexual harassment was a violation of women’s constitutional right to equality and dignity. In creating “legally binding” directions for all workplaces and institutions, Justice Verma took a quantum leap. Adapting the United Nations Convention to Eliminate All Forms of Discrimination Against Women, 1979 (CEDAW), into domestic law, the Court established that sexual harassment was no longer to be ghettoised by the archaic language and the limitations of criminal law. Rather, the failure to prevent sexual harassment emerged as a systemic failure of women’s equality rights. That shift in perception held immense potential to enrol every player, at every step, in every part of the system faced with addressing sexual harassment to consciously ask: “is my action enabling the equality rights” of this woman? After eight years on the margins, Constitutional Equality had finally breathed life into the lived experience of women, sexual violence and mainstream law. But to what end?

In the 16 years that followed this historical shift in perception, rather than authenticate the Vishaka vision through meaningful execution, the Government fell inexcusably silent. A silence which saw the rift between perception and reality widen along with a disturbing public indifference towards sexual violence.

It was an omission that cost us dearly on December 16, 2012, as a nation, as Indians, as men and women, across all walks of life. There was an overwhelming, and unprecedented rally from an otherwise habitually complacent public in its protest and outrage against the rape. Overnight, thanks to India’s youth who dragged it onto the front pages of newspapers, social media, public talks, protests and into our very homes, “rape” became a centrepiece of mainstream life in India. Change was evident in the droves of men who protested alongside the women—a presence unheard of 20 years ago. It was a change fuelled by an unexpected voice from the margins—that of the young man who accompanied his friend that fateful night. The power and courage of this one young man, who carried his profusely bleeding friend to the police van on his own despite a fractured leg, while two policemen simply watched; a man who never met with an iota of government support and obtained medical care at a private hospital; a man whose only goal was to see justice done and change arrive, rendered us speechless. Rising from the ashes of his own pain, loss, and enduring memories of that horrendous night, he quietly and candidly shared with us on national television, the truth of appalling insensitivity on the part of the police, bystanders, hospital services and the Magistrate along with the role of government politics. It was a classic case with an atypical witness—a young man, not only that rare witness to a rape, but one who exposed the elements of what was so deeply broken in our criminal justice system when it comes to women and sexual violence.

Then, whether by accident or fate there was a ray of hope when, as a response to the December incident, Justice J.S. Verma (of Vishaka fame) was asked to head what came to be known as the Verma Commission to review law reform on rape. With unmatched attentiveness, patience, homework and grace, the Verma Commission became a unique beacon for inclusiveness—one consistent with a visionary understanding of “Equality.” It afforded women, men, representative of the LGBT community, women living in conflict zones, prosecutors, trafficked women and children, individual complainants, academics and activists the dignity of being heard. In a two day public hearing, there was no “us” or “them,” no margin or mainstream—there was only we, the People. Undeterred by the visible absence of representatives from key ministries, the Verma Commission produced a report which replicated the kind of paradigm shift in perception we saw in Vishaka. In a record 30 days, it cultivated a visionary approach to women’s position in India evidenced by the following extract from the Verma Commission Report.

Unless and until the State pursues a policy of avowed determination to be able to correct a historical imbalance in consciousness against women, it will not be possible for men and indeed women themselves, to view women differently and through the prism of equality.

Perhaps that had been the challenge to the government all along—the absence of a vision—one which could rise to address the adverse sexual realities of half its population. Seized with the issue of sexual violence law reform since 1983, the different arms of the government have never seemed compelled to do their homework between rapes. Obsessively focused on India’s economic growth, the government squandered a rare public awakening and the opportunity to educate itself. Such apathy rendered the government impotent in galavanizing a zero tolerance message against sexual violence, an expectation central to women’s democratic life in India. And when you are so ill-prepared and in power, power reveals.

On December 23, 2012, without warning, peaceful protests (which even the Chief Justice of India publicly “saluted”) at India Gate, New Delhi were met with police excesses. “Lathi” (police truncheon) charges, water cannons, tear gas, the targeting of women, and government dictat that all public assemblies were unlawful became the pattern of the day. It was one more instance of the politics of exclusion – only this time, the excluded formed half of the nation.

More revealing was the government’s response to the Verma Commission’s Report. While the Prime Minister termed it a “labour of love,” a hastily cobbled Criminal Law Ordinance on Sexual Assault (the Ordinance) that followed, betrayed the government’s true intent. Inserting definitions of sexual assault with a death penalty tagged on (the latter of which, the Commission had rejected after consultations and level-headed reasoning) the Ordinance became an eye wash and a mockery of democratic power. Not only did it shun the fundamental vision of Equality in the Verma Report, the Ordinance abdicated all the systemic priorities raised by it. In doing so, the Government disregarded most of the Commission’s substantive recommendations. These included election law reforms to remove political representation by those charged with sex offenses, deleting the marital rape exemption, police reform and accountability, internationalising medical protocols, sex education, the “breach of command responsibility” doctrine for the Armed Forces (holding a commanding officer responsible if a junior commits rape), preventive measures and, most significant, the proposed Women’s Bill of Rights (to name a few). Yet, with near juvenile posturing, the Law Minister went on national television to shamelessly declare that 90% of the Verma Report had been “accepted.” Passing such a critically flawed Ordinance was the only urgent act the government undertook on the issue of sexual violence after the December 2012 rape incident.

We are still in the midst of a churning. The proverbial jury is still out on whether the institutions of state will join the march with “avowed determination” to arrive at that “sense of self” necessary to purge our society of sexual violence. But the process has promise. Against 30 years of State indifference, we got 30 days of the Verma Commission Report that created, through a uniquely accessible and inclusive process, a paradigm shift in the way the public engaged with the issue of women’s equality and sexual violence. In contrast, the government’s ongoing decision-making continues to be characterized by exclusion of women and experts on addressing sexual violence, and stalling on implementing the recommendations of the Verma Commission. So, what has changed? For the cynic, perhaps nothing. For me, aware optimism and living in the present have been hallmarks of perseverance on the margins. Today, it is how one woman’s tragedy, one heroic friend, one public awakening, one Commission’s efforts, a history of the women’s movement and one moment in time, became synonymous with the mainstream. What’s that, if not change?

Naina Kapur is a lawyer and equality consultant. She specializes in establishing the prevention of sexual harassment in the workplace. Naina framed and acted as lead instructing counsel before the Supreme Court of India in 1997 in the case of Vishaka vs. State of Rajasthan, which resulted in legally binding directions on preventing workplace sexual harassment. Considered a landmark judgement in national and international jurisprudence, the case has been recognised as a leap in domestic application of International Law and gender equality in India. She can be reached at naina.kapur@gmail.com or at nainakapur@nainakapurlaw.com

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