Friday, 25 January 2013

Legal Impediments to Speaking Out about Abuse

Note: The publication of testimonies of abuse (including VAW) considered here are testimonies which contain details of the abuse identifying persons and places; not anonymised  accounts of abuse.

Unfortunately, the possible legal implications of publishing testimonies of those who have been abused have the potential to result in proposals to engage in such publication being reconsidered, if not completely abandoned. This is detrimental to any effort towards transparency, and the recognition of abuse, which is the first step towards combating it.

Due to this, if there’s anything it is imperative for a society (that claims to be working towards becoming abuse-free) to ensure its members enjoy, it is the right to free speech. In India, the right is enshrined in the Constitution as a fundamental right. The right may, however, be subject to reasonable restrictions according to Article 19 of the Constitution. And subject to such restrictions it certainly is.

There are, in India, at least thirty statutes which contain provisions that impact free speech either directly or through subordinate legislation. Not all of these laws, even though they do have free-speech implications, have an impact on the publication of testimonies of abuse. Those which do have an impact though include both civil laws and criminal laws. And they can be used as incredibly powerful silencing tools.

For a person who has been abused to choose to speak out in the face of the possibility of civil proceedings being initiated can be an incredibly difficult decision, especially given that potential legal fees alone could be intimidating. And for a person who has been abused to choose to speak out in the face of the possibility of facing criminal charges is often unthinkable. Unsurprisingly, the result is that persons who have been abused may choose not to speak out at all.

And while it’s certainly true that restrictions to free speech apply uniformly across the board, to both those who have been abused and to those who abuse, it is possible that those who are abused are disproportionately impacted by the restrictions. This is simply because those who abuse are usually better placed than those who are abused, and are far more likely to have the tools to defend themselves if at all legal proceedings are initiated, which is, in itself, unlikely, since those abused often do not have the resources to invoke the protection of the law. As such, it may be possible to argue that uniformity in the applicability of restrictions to free speech to both those who abuse and those who are abused is comparable to uniformity in restrictions prohibiting both the poor and the rich from begging on the streets and stealing bread, to plagiarise Anatole France.

The Constitution certainly contains to right to equality in Article 14 but the right is not unqualified — much as the right to free speech is not unqualified. The Article states: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,’ and the judiciary has interpreted it such that ‘it is settled law that equals must be treated equally and unequal treatment to equals would be violative of Article 14 of the Constitution. But, it is equally well-established that unequals cannot be treated equally. Equal treatment to unequals would also be violative of 'equal protection clause' enshrined by Article 14 of the Constitution’.

It would be hard to deny that those who have been abused are quite simply not in the same class as those who perpetrate abuse. Consequently, it may not be entirely impossible to argue that victims of abuse should be granted more latitude than would normally be granted when it comes to matters of free speech in order to them to speak of their experiences without fear of legal ramifications. That said, the other side of the coin is that were such latitude to be granted by the law it would also have to come with checks and balances to ensure that the latitude was not abused to wreak havoc in the lives of the innocent. The easiest way to ensure that those ‘falsely accused’ were able to obtain protection from defamation would, of course, be by according to them the right to seek redressal in a court of law. Doing so would, however, bring one back to square one, with the victims of abuse — both real and false — being potentially subjected to an array of legal proceedings for having spoken out, since, of course, there would be no credible manner to separate false testimonies from true ones at the outset itself.

What is, sadly, therefore inescapable is that not only are victims of abuse impeded from speaking out about their experiences but that there appears to be no simple way in which the status quo could be changed with regard to the current legal framework. What we need, in all likelihood, is for laws governing content to be completely restructured across the board with far more emphasis being placed on the right to free speech.

Also see: Copyright and Censorship


The Discussion on VAW in India as 2013 Begins

This is a draft of a piece which was published at Genderlog on January 13, 2013.

Despite turmoil, and many heartbreaking events, 2012 saw free speech and violence against women (VAW) become mainstream issues in India, and the possibility of 2013 becoming a year where Indians collectively work towards safeguarding free speech and other civil liberties, and curbing violence against women. As Harini Calamur has said, "Given that sexual and physical abuse is now a part of mainstream conversation – there is no better time than now to push for systemic reforms."
There's been much writing about violence against women in 2013; this post is intended to be a representative compilation of some of it (peppered with some personal opinions).

To begin with, there has been much discussion about legal change, and two committees were set up: the Justice Usha Mehra Committee dealing primarily with measures to ensure the safety of women (particularly in NCR), and the Justice J S Verma Committee dealing with sexual assault law. The Justice Verma Committee reportedly received thousands of submissions including one from the Congress proposing 30 years' jail time and chemical castration, which the BJP was unimpressed with. Not many submissions appear to have been made available to the public although Inclusive Planet Centre for Disability Law and Policy did post their disability-centric draft submission online, while Amnesty International, Takshashila and the Student Bar Association of NLSIU appear to have posted their final submissions online.

Various statements about rape which seem hard to believe have been made by politicians and godmen. Claims that rape is prevalent in 'urban' India, not in rural "Bharat' were challenged by legal academic Mrinal Satish who said (in two tweets) that his study of all cases decided by Indian High Courts post-Mathura till date shows that 75% of all rape cases before courts (non-aggravated & aggravated) were from rural areas. Mrinal Satish also published an article on chastity, virginity, marriageability and rape sentencing in India, and was quoted in a illustrative piece by Sunetra Choudhury highlighting the what some judges have had to say about rape.

Tripti Lahiri wrote a piece on how to report a rape in India where she described what should happen in the process of reporting rape (although not necessarily what does happen), while Rupa Subramanya spoke of the colonial hangover of India’s rape law highlighting reasons why it needs to be amended. I was, however, individually told of concerns persons had about making marital rape a criminal act at par with stranger rape; these concerns were expressed in conjunction with claims about the allegedly widespread misuse of Section 498A of the IPC which deals with a woman being subjected to cruelty by her husband or his relative.

Those against S 498A, IPC appeared to: (a) say that the Supreme Court held 498A is legal terrorism although my understanding is that the Supreme Court stated that by misuse of s 498A, 'a new legal terrorism can be unleashed', not that 498A itself is legal terrorism; and (b) claim that the non-conviction rates in 498A cases (apparently at 74%; I didn't cross-check) indicated that most cases are false, ignoring the fact that the lack of a conviction (in any case) doesn't automatically always mean that it was filed with absolutely no basis. Finally, those against S 498A fell back on the rhetoric of misuse — depending on who spoke to me, misuse was pegged between 95% and 'all' never mind that the claim of 498A being nothing but a tool to torture husbands was not even supported by a misinterpretation of conviction rates. (As is probably obvious, I'm not especially sympathetic to those against S 498A; my views on it today haven't changed much from what they were about ten years ago.)

The hesitation to see marital rape criminalized across the board did not, however, impede enthusiasm to amend other aspects of sexual assault law, inter alia, by introducing the death penalty and chemical castration. Activists have been wary of India's rush to justice. Some commentators like Salil Tripathi have gone beyond calls for castration pointing out that 'India needs to invest in law enforcement, sounder laws, etc., and that punishment for instant gratification will not work', while Flavia Agnes has cautioned against shortcuts on rape.

Others have drawn attention to the role of the family in perpetuating VAW. Samar Halarnkar referred to 'deep hypocrisies' and 'terrible secrets which hide behind its culture of religiosity and community spirit' while Sanjay Srivastava spoke of the Indian family being 'a long-standing site for reinforcing and perpetuating male privilege and entitlement'. As Milan Vaishnav pointed out though, "When it comes to the reasons for the injustices women face in India, there is plenty of blame to go around." This may be reflected by the estimates of economists Siwan Anderson and Debraj Ray of the different ages at which Indian women become 'missing' women. That said, the role of families can't be ignored. In one particularly horrifying case, the parents of an unsuccessful rapist allegedly help set on fire a woman he targeted.

Women have, however, been speaking out about VAW increasingly loudly. Natasha Badhwar said there is 'no going back to the tyranny of silence', and a number of women spoke about their own experiences; among others:





  • Janice Pariat spoke of how, in Delhi a woman is penalised for being a woman, and being a woman from the ‘northeast’ is sometimes far worse;




  • Sonia Faleiro spoke of how, as a teenager in Delhi, she learned to protect herself;




  • @Igirit (her Twitter handle) spoke of fighting manifestions of patriarchy in her own life;




  • Kony Chatterjee spoke of her experience with sexual violence online inflicted by a former partner;




  • Kavita Rao spoke of sexual harassment in India, and about her determining what to say to her teenaged daughter;




  • @Koinon3a (her Twitter handle) spoke of 'Freedom in Three Acts';




  • Snehlata Gupta, a teacher, spoke of patriarchy in class, and a teenaged boy suggesting that she wear a dupatta as her not doing so embarrassed him; and




  • Sohaila Abdulali spoke of how, after being raped, she was wounded, not her honour.


  • There appear to be no expectations of immediate change though. Aswini Anburajan wrote of how 'we won't see real change until my Indian parents and their generation change how they see women's sexuality'. And sentiments that the role of women should be circumscribed have certainly not disappeared. One politician said that women who cross limits pay the price. A criminal defence attorney spoke of how he's not seen a single incident or example of rape with a respected lady. Vinay Sitapati dealt with these issues in a piece where he pointed out that 'even as Indian women seek more control over their lives, they face greater violence,' and asked what could be done about it.

    What's been particularly heartening is that some men have been actively trying to be part of the solution instead of being part of the problem. Historically, some Indian men have played an important role in securing women's rights and some men today are actively speaking out too whether by not skirting the issue or otherwise. The path for men who do so is often far from smooth, as one reported death of a man who stood up for a rape victim exemplifies.

    Protection from VAW though, seems to for some reason, in the minds of many, to involve women using weapons. There appears to have been a great deal of enthusiasm for the use of pepper spray regardless of the fact that it could, as I see it (and I'm no expert), potentially add to danger unless it functions as intended, isn't used against a woman possibly by her assailant, and she can get away fast.

    Pepper spray aside though, hundreds of women have reportedly inquired about gun licences following the gangrape and murder of a woman in Delhi. The Shiv Sena plans to give Chinese foldable knives to women as a haldi-kumkum gift on Bal Thackeray's birth anniversary, and the Pune Police chief wants women to carry knives, chilli powder or pepper spray and use them in self-defence if attacked. As has been pointed out in the context of VAW though, "The social expectation of “fighting back” is an evolved form of victim-blaming."

    (This post has been compiled using tweets at twitter.com/nsaikia, and with the help of inputs provided by the people named in the tweets. Not all the posts were written in 2013 but they have been brought to my attention in 2013.)