Skip to main content

Posts

Showing posts from 2018

[Link] The Rule of Law

I critique the rule of law with reference to violence and its own history, pointing out that it has often been 'the voice of the immensely privileged codified in statute and subordinate legislation' in a piece that was published by Smashboard and later by Firstpost . Extracts "...the rule of law is not an egalitarian concept and its history demonstrates that it not underlain by gender neutrality. It may be possible to force it into another, less discriminatory mould more mindful of equality and individual rights but that would require recognising our current understanding of the rule of law for what it often is: an idea perpetuated by white men living in sexist societies themselves and forming the theoretical basis for the racial hierarchies which plague all of us today, often with their ideas being used to support economic drain and worse of countries primarily populated by non-white peoples. [....] The Constitution of India promises individuals equality and dig

Anti-trafficking Initiatives and Resurrecting Indentured Labour

( Note:  This post is primarily about the intersect between the raid/rescue model & NRPFesque policies in the context of DV and the shape which laws governing the field could be made to assume in the future.) ~*~ Indian trafficking law is a complex mix of constitutional law guaranteeing the impermissibility of the practice of human trafficking, criminal law, and labour law. It is consolidated nowhere but finds mention piecemeal across a number of statutes. Criminal laws in the field have tended to try to protect trafficked persons (questionably, sometimes from themselves by refusing to acknowledge their ability to consent to acts in relation to themselves) while labour laws have generally tended to attempt to realise the hope of being able to engineer a more equitable society through the instrumentality of the law (with varying degrees of success, to put it mildly). In consequence, Indian law has not thus far single-mindedly pursued a strategy of removal and r

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 worldvie

[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

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 s

[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

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 suppose