July 19, 2018

Consent v Dominion: Sexual Offences in Indian Law

The Supreme Court is currently hearing a matter in which it is expected to determine the Constitutionality of Section 497 of the 1860 Indian Penal Code. This provision is popularly understood as one which criminalises adultery, and the IPC itself supports this understanding by calling the offence ‘adultery’. However, if the particulars of the offence it describes were considered, it would emerge that the provision is, more accurately, one which can criminalise a man who knowingly has sex not amounting to rape with a married woman without her husband's consent or connivance.

Making the provision as it now stands truly gender-neutral, as many demand, would not allow unfaithful wives to be jailed at their husbands’ behest. Instead, it would allow wives to have their unfaithful husbands’ women lovers jailed.

Although much public discourse treats IPC Section 497 as being discriminatory towards men since it cannot currently be used to jail women, it is quite firmly embedded in a worldview that treats women as the property of their husbands. These are husbands who would once, as the law earlier recognized, have had the liberty to decide when to have sex with their wives regardless of their wives’ feelings on the matter.

Current law has begun to acknowledge that this approach is problematic, and has begun to shed it. It now contains a mishmash of provisions some of which recognise women's rights and others which do not. Marital rape, for example, is recognised by the 2005 Domestic Violence Act but is still barely recognised by the 1860 Indian Penal Code despite its having been amended in 2013.

As far as IPC Section 497 which deals with adultery is concerned: if a man were to have sex with a married woman both with her consent and with her husband’s consent or connivance, her husband could potentially still be liable for having trafficked her. Although this is largely an academic possibility as it is difficult to envisage its realisation in real life, it remains a possibility because trafficking law does not require the person being trafficked to be transported anywhere for the offence to have been committed, and treats the consent of the trafficked person as being irrelevant.

Drawing on international law, the Indian Penal Code essentially defines trafficking to mean using unsavory means (such as threats, abduction, and deception) to recruit, transport, harbour, transfer, or receive one or more persons in order to exploit them. The exploitation could be physical or sexual, echo slavery, or involve forced organ donation. And the Code categorically states: “The consent of the victim is immaterial in determination of the offence of trafficking.”

This is not the formulation used in the ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime’ which, in its definition of trafficking, treats victim consent as being irrelevant only if any of the listed unsavoury means have been employed.

The IPC formulation diverges from that seen in international law and reflects the Indian social tendency to deny some people agency, particularly if they happen to be women. And, as an aside, the IPC also makes it difficult to contemplate the legitimacy of voluntary sex work not undertaken by an individual in isolation.

The failure to acknowledge a woman's consent to mitigate what would otherwise be a clearcut case of trafficking and, in other circumstances, the refusal to consistently recognise her withholding consent in what would otherwise be (marital) rape may seem unrelated. Nonetheless, they evidence a deep-seated confusion in the law about whether sexual interaction should be legitimised on the basis of ‘consent’ or ‘dominion’, in the sense that some conservative interpretations of scripture began to understand the latter term over a millennium ago.

Men, in that ancient Biblical telling, created in God's image, have God-given dominion over all the Earth's other living beings apparently including women. The understanding that men have primacy seeped into modern Indian law through statutory provisions introduced by the British to the country which, being patriarchal itself, was receptive to them. Even where we've tried to modernise the law to negate dominion, we haven't fully embraced consent as the IPC definition of trafficking shows.

The patriarchal structure of the law is finally being challenged now although it hasn't been entirely overthrown which is what has resulted in statutory confusion. In courts and beyond, we're questioning laws which criminalise homosexual acts and adultery, and which decriminalise marital rape. We're also engaging with the issue of why the crime of rape shouldn't be relationship- and gender-agnostic.  

Currently, we are at a crossroads. We can choose to cling to the laws and social norms which colonialism and conservatism have left us with, and leave women at the mercy of patriarchy along with men who do not conform to patriarchal expectations of them. Alternatively, we can choose to go down a different path in which each individual’s autonomy holds sway instead of the age-old notion that a patriarch, whether in the form of a living person or a state which exclusively upholds his desires, holds sway.

There is every indication that we will choose not to continue to discriminate against people depending on their sexual orientation and the allied choices they make. We may also see ‘adultery’ as contemplated by criminal law being decriminalised. Perhaps in the not-too-distant future, that courtesy will be extended to every adult at least in relation to their private sexual lives with no-one being subject to another's dominion and each individual's choices in regard to their own life being respected.

July 12, 2018

[Link] IPC Section 377 Should be Read Down, Not Struck Off

Section 377 of the Indian Penal Code, infamous for criminalising homosexual acts, is the legal articulation of a traditional Judeo-Christian worldview (easily grafted onto conservative Indian thought) which has no place in the modern world. Even so, striking it down in its entirety would not be ideal, I argue over at Scroll.

Extracts

Section 377 of the 1860 Indian Penal Code is part of India’s colonial legacy. It criminalises homosexual acts using Victorian-era euphemism every bit as non-specific as the Biblical precepts it is supposedly in consonance with. [....]

Section 377 thus, in some circumstances, can accord relief to wives whose husbands rape them. Along with a 2017 Supreme Court ruling, which essentially held that sex with one’s wife is rape if she is less than 18 years old, this innovation forms the basis of judicial intervention which dilutes the marital rape exception enshrined in criminal law in India. [....]

That said, there are those who would suffer if Section 377 were completely struck down. It would therefore probably be prudent to read the provision down so that only those who voluntarily engage in “unnatural” acts without the consent of their partners can be targetted by it.

Having sexual offence law adequately recognise individual rights regardless of gender would require significant legal amendments, which are unlikely to see the light of day within the lifetime of most adults now alive. In the meantime, the least we should aim to do is ensure that tinkering with the law causes as little harm and as much good as is possible.

(Read the entire piece at Scroll: Rape laws: Why the Supreme Court must read down Section 377 – but not strike it down in its entirety )

July 11, 2018

The Assassination on Ganeshkhind Road

Pics found online : the stamp featuring Damodar Hari Chapekar,
an old Raphael Tuck pic of Ganeshkhind road, and Govt House
The Indian revolutionary Damodar Hari Chapekar, one of those responsible for shooting Rand, Pune's plague commissioner, & his military escort, has been honoured in a recently-issued postal stamp. The assassination took place in 1897 on Ganeshkhind road after Rand had outraged the local people with his methods.

Ganeshkhind road was once a tree-lined avenue, as it remained even 30 years ago. When Rand was killed, he was heading to the nearby Governor's house, which has become the main building in the university, for a celebration.

After Independence, there were plans to turn the Governor's summer residence into a deer park but a proposal to have it be a university ultimately prevailed. At some point, a large fountain with light turquoise tiles was constructed at the entrance to the university at one end of Ganeshkhind road. People would gather in the evenings: children playing in the pool and street vendors selling snacks nearby.

The fountain has now made way for a workaday flyover though, on the road where the assassination took place, there still stands a memorial to the Chapekar brothers who are respected to this day.

June 04, 2018

Tax Collection in British-Ruled India

An extract from Edmund Burke's prosecution of Warren Hastings which, though it may have been unfair in itself, highlighted what the Raj was to become:

Permit me now, my lords, to set before you the state of the people that remain victims of this oppression. It is notorious that poverty generally prevails among the poor ryots, or husbandmen; that the poor are seldom possessed of any substance, except at the time they reap their harvest; and this is the reason that such numbers of them were swept away by famine. Their effects are only a little earthenware, and their houses a handful of straw, the sale of which was not worth a few rupees; but it is still incredible that there should not be a Want of purchasers. .My lords, I produce this strange testimony from the person himself who was concerned in racking these people, and I produce it to shew what a country it is. The people, while they were harassed in this manner, sought that dreadful resource which misery is apt to fly to; they fell into the hands of usurers. Usurers, my lords, are a bad resource at any time; and at that time those usurers, to the accustomed hardness of that description of people, added another that makes such men ten times worse, that is, their own necessities. Such was the determination of the infernal fiend, Debi Sing, to have those bonds discharged, that the wretched husbandmen were obliged to borrow money, not at 20, or 30, or 40, or 50, but at six hundred per cent, in order to satisfy him!

My lords, I am here obliged to offer some apology for the horrid scenes I am about to open. Permit me to make the same apology to your lordships, that was made by Mr. Patterson — a man with whose name I wish mine to be handed down to posterity. His apology is this — and it is mine — that the punishments inflicted upon the ryots of Rumpore and of Dinagepore, were, in many instances, of such a nature, that I would rather wish to draw a veil over them, than shock your feelings by a detail. But it is necessary for the substantial ends of justice and humanity, and for the honour of government, that they should be exposed, that they should be recorded, and handed down to after ages: let this be my apology. My lords, when the people had been stript of every thing, it was, in some cases, suspected, and justly, that they had hid some share of the grain. Their bodies were then applied to the fiercest mode of torture, which was this: they began with winding cords about their fingers, till the flesh on each hand clung and was actually incorporated. Then they hammered wedges of wood and iron between those fingers, until they crushed and maimed those poor, honest, and laborious hands, which were never lifted up to their mouths but with a scanty supply of provision. My lords, these acts of unparalleled cruelty, began with the poor ryots; but if they began there, there they did not stop. The heads of the villages, the leading yeomen of the country, respectable for their virtues, respectable for their age, were tied together, two and two, the unoffending and helpless, thrown across a bar, upon which they were hung with their feet uppermost, and there beat with bamboo canes on the soles of those feet, until the nails started from their toes, and then with the cudgels of their blind fury these poor wretches were afterwards beat about the head, until the blood gushed out at their mouth, nose, and ears. My lords, they did not stop here. Bamboos, wangees, rattans, canes, common whips, and scourges were not sufficient. They found a tree in the country which bears strong and sharp thorns—not satisfied with those other cruelties, they scourged them with these. Not satisfied with this, but searching every thing through the deepest parts of nature, where she seems to have forgot her usual benevolence, they found a poisonous plant, a deadly caustic, that inflames the part that is bruised, and often occasions death. This they applied to those wounds. My lords, we know that there are men (for so we are made) whom bodily pains cannot subdue. The mind of some men strengthens in proportion as the body suffers. But people who can bear up against their own tortures, cannot bear ap against those of their children and their friends. To add, therefore, to their sufferings, the innocent children were brought forth, and cruelly scourged before the faces of their parents. They frequently bound the father and the son, face to face, arm to arm, body to body, and then flogged till the skin was torn from the flesh: and thus they had the devilish satisfaction of knowing, that every blow must wound the body or the mind; for if one escaped the son, his sensibility was wounded by the knowledge he had that the blow had fallen upon his father; the same torture was felt by the father, when he knew that every blow that missed him had fallen upon his unfortunate son.

My lords, this was not, this was not all! The treatment of the females cannot be described. Virgins that were kept from the sight of the sun, were dragged into the public court — that court which was intended to be a refuge against all oppression — and there, in the presence "of day, their delicacies were offended, and their persons cruelly violated, by the basest of mankind. It did not end there: the wives of the men of the country only suffered less by this: they lost their honour in the bottom of the most cruel dungeons, in which they were confined. They were then dragged out naked, and in that situation exposed to public view, and scourged before all the people. My lords, here is my authority — for otherwise you will not believe it possible. My lords, what will you feel when I tell you, that they put the nipples of the women into the cleft notches of sharp bamboos, and tore them from their bodies. What modesty in all nations most carefully conceals, these monsters revealed to view, and consumed by burning tortures, and cruel slow fires! My lords, I am ashamed to open it — horrid to tell! these infernal fiends, these monstrous tools of this monster Debi Sing, in defiance of every thing divine or human, planted death in the source of life!

May 24, 2018

Domestic Violence, Améry, and Tagore

Random thoughts upon re-reading Améry 


In At the Mind's Limits, Jean Améry begins by investigating the point of the intellect and the experience of the intellectual in harsh circumstances. He then moves on to torture, homelessness, and resentment. He's snarky, aggressive, and invariably spot on. Much of what Améry says mirrors the experience of domestic violence, I suspect, although I doubt that that ever crossed Améry's mind : it was the Holocaust that he was writing of.

A passage in which he admits to not knowing what dignity is particularly struck me:

"I must confess that I don't know exactly what that is: human dignity. One person thinks he loses it when he finds himself in circumstances that make it impossible for him to take a daily bath. Another believes he loses it when he must speak to an official in something other than his native language. In one instance human dignity is bound to a certain physical convenience, in the other to the right of free speech, in still another perhaps to..."

I don't know what having dignity is but I'm quite certain that being dignified in most circumstances means ensuring that others are not made to feel uncomfortable by one's forcing them to contend with how far from the ideal they are especially when one faces injustice oneself and they are complicit in the infliction of violence through their silence. (So much for the wonders of dignity!)

A daughter recently had a beautiful essay published in tribute to her mother who had once been married to a prominent Indian lawyer who had abused her. It spoke of a time before cell phones but it made me think of how the essay entirely aside, even today, being well-placed doesn't necessarily ensure that a woman facing domestic abuse won't bleed to death on her living room floor. It reminded me that the tale of the "rich" abused woman who's up against a richer man finding herself without aid worth mentioning is nowhere near new. And it made me think of dignity and beauty.

Tagore had once examined beauty through the lens of Romantic poetry  Keats, Shelley, and Wordsworth  and Advaita Hindu philosophy. The latter, he had apparently explained in a letter to a European person saying: “The first stage towards freedom is the Shantam, the true peace, which can be attained by subduing self; the next stage is the Shivam, the true goodness, which is the activity of the Soul when the self is subdued. And then the Advaitam, the love, the oneness with all and with god.” And, in the essay (entitled The Poet's Religion), he highlighted that life must be 'a continual process of synthesis, and not of additions' if our activities are to avoid 'the insane aspect of the eternally unfinished'.

"What is the truth of this world?" Tagore asked, answering his own question stating:

"It is not in the masses of substance, not in the number of things, but in their relatedness, which neither can be counted, nor measured, nor abstracted. [....] What is constantly before us, claiming our attention, is not the kitchen, but the feast; not the anatomy of the world, but its countenance. There is the dancing ring of seasons; the elusive play of lights and shadows, of wind and water; the many-coloured wings of erratic life flitting between birth and death. The importance of these does not lie in their existence as mere facts, but in their language of harmony, the mother-tongue of our own soul, through which they are communicated to us.
[....]
[I]f beauty were mere accident, a rent in the eternal fabric of things, then it would hurt, would be defeated by the antagonism of facts. Beauty is no phantasy, it has the everlasting meaning of reality. The facts that cause despondence and gloom are mere mist, and when through the mist beauty breaks out in momentary gleams, we realise that Peace is true and not conflict, Love is true and not hatred; and Truth is the One, not the disjointed multitude. We realise that Creation is the perpetual harmony between the infinite ideal of perfection and the eternal continuity of its realisation; that so long as there is no absolute separation between the positive ideal and the material obstacle to its attainment, we need not be afraid of suffering and loss. This is the poet's religion.
[….]
This great world, where it is a creation, an expression of the infinite — where its morning sings of joy to the newly awakened life, and its evening stars sing to the traveller, weary and worn, of the triumph of life in a new birth across death,— has its call for us. The call has ever roused the creator in man, and urged him to reveal the truth, to reveal the Infinite in himself. It is ever claiming from us, in our own creations, co-operation with God, reminding us of our divine nature, which finds itself in freedom of spirit. Our society exists to remind us, through its various voices, that the ultimate truth in man is not in his intellect or his possessions; it is in his illumination of mind, in his extension of sympathy across all barriers of caste and colour; in his recognition of the world, not merely as a storehouse of power, but as a habitation of man's spirit, with its eternal music of beauty and its inner light of the divine presence."

What that means isn't always entirely clear in terms of what it takes to make the world a better place. There was a time when I'd thought that it was no bad thing that most men can be bribed to do what is right with the promise or hope of career enhancement or some other inducement. Because doing what is right counts whatever the circumstances, I'd imagined. But I'm increasingly beginning to think doing what it right is not enough unless one's personal life mirrors one's public politics. The lawyer who supports women's education but leaves his wife at risk of death or the lawyer who, half a century later and half a world away, advocates anti-violence legislation only to be violent at home is replaceable. The cost of supporting a person who has no legitimate claim to anyone's support simply because one celebrates their politics is both high and unnecessary.

Améry had pointed out that as humans, when we are in trouble, we are conditioned to expect help and we usually receive it though, of course, not when one is in the clutches of the state and the state is malignant. There is no help for an abused woman either when she are in the clutches of a man who has the power of the state over her supported by a patriarchal society, his own aura of reasonableness, and his claim to power within the state. To her, he is the state and he is malignant.

April 22, 2018

[Link] Rape and the Death Penalty

Over at Scroll, I argue that advocating the death penalty is not an appropriate response to rape, and it completely ignores our own role in facilitating not only rape but also other forms of abuse, all of which exist on a continuum. Although it's easily implementable, there's no convincing evidence that the death penalty will stem rape. It stinks of retribution, is always susceptible to irreversible error, disproportionately targets those without privilege, violates decency, and is expensive.
Rape is itself largely a manifestation of toxic masculinity. [....] Putting rapists to death, [the possibility of which may not deter them from committing rape], reeks of machismo and patriarchy. In a society that routinely creates the impression that women are destroyed by rape, death for rape simply realises the old norm of an eye for an eye. It is a form of retributive justice in an age when justice is meant to be reformative. [....] If we are to address rape, we need to develop legal processes to report and prosecute rape that are easy to navigate and which would increase the likelihood of rapists being held to account. We also need to interrogate social processes and challenge defences of abuse across the spectrum particularly within our own social circles. What we require is an alternative paradigm that is independent of toxic masculinity. We need to hold not just abusers to account but also those who support them and thereby facilitate abuse. That process, more often than not, will require us to begin by taking a long, hard look in the mirror.
Read the whole piece here.

(This note contains edited tweets and jumbled up extracts from the post at Scroll.)

April 20, 2018

On Holding Abusers and Their Enablers to Account

09 March 2018 

If we are to act against abuse (including SH), perhaps we should focus not on abusers but on those who create environments in which they thrive, the mechanisms they employ, & how they can be leashed. Abusers generally do not abuse others because they must but because they can.

Quite apart from holding abusers accountable, we also need to hold abuse-enablers to account. And recognise that access to law & access to justice are not synonymous esp when "law" is determined by abusers and their supporters, & its processes ― due process ― controlled by them.

Worth asking why responses to abuse are structured the way the are, whose story is (not) told, & who benefits. Confidentiality of findings? The truly victimised, the falsely accused don't benefit; perhaps institutional/family reputation can? What priories underlie responses?

Who determines which channels through which to complain of abuse are legitimate? Who controls proceedings through supposedly-legitimate channels? The same people in both cases? How do you avoid a conflict of interest & ensure fairness?

Through history, some of the worst abuses of humans have consistently been deemed entirely legal by the persons in power who both committed them & determined what was lawful. (Think slavery, eg) Due process & uncritically accepting law as an anti-abuse tool will not stem abuse.

The law matters. Due process, too. They create formal structures to assign responsibility. But, to be meaningful & fair, they must be constantly interrogated. That's partly why the media & extra-legal channels of complaint can't be dismissed; they're critical to interrogate law.

There's also the slight problem that, even at its best, the law may not provide the outcomes a victim wants, not least coz the state which nominally deploys it is almost always carceral. It's, rightly, a tool to counter abuse. We need to stop being told it's the best/only tool. 

19 March 2018

Perhaps it's wise not to post in anger though it's sometimes hard to avoid it. 

It isn't easy to avoid noticing that the calls against a person found to have committed abuse can be muted in comparison to those against a person merely accused of it. 

The spectacle merits, I suspect, questions about what drives those supposedly enthusiastic about human rights. It explains how progressive legal change has largely been developed in the wake of non-influential abusive men being targeted. It reveals the difference between the advocacy of human rights as a career choice and as a lifestyle choice. And it is always a choice: whom we choose to pillory, whom we excuse. And the mechanisms we employ in both cases.

Ostensible progressivness and feminism isn't enough. The structures which protect a certain class of abusers, usually rich and apparently 'woke',  deserve to be dismantled. Those who support such structures deserve to be challenged. They may do much good but if what they achieve is largely limited to the policy level which only occasionally calls themselves to account (almost by accident), the manifestation of their version of progressivness is inadequate. 

Desegregation once changed the daily lives of poor white people but left power concentrated in the hands of rich white people who still wield it almost exclusively. Who's paying for our supposed commitment to gender equity today by actually having to practise it? And, more importantly, who isn't?

Addendum: This isn't just about sexual harassment but also other forms of abuse. Consider, for example, the gaslighting, often in the language of social justice, or the tomb-like silence which too often follows complaints of DV or rape depending on who's accused.