Law in-depth
The quest for gender justice
A K Roy
Building a gender-just society was perceived as part of the task of nation building, of development and social reconstruction. The role of law in the whole process is perceived as non-ambivalent, well-defined and positive.
But two decades and many struggles later, the answers are no longer so clear-cut, in spite of the fact that the contemporary women's movement in India had in fact coalesced into a movement by mobilising public opinion around the need for legal reforms for redressing individual cases of atrocities against women. The Mathura rape case of 1979, the Shah Bano case on divorce under the Muslim personal law in 1985 or the Bhanwari rape case in 1994 are landmarks that in many ways determined the course and content of the contemporary feminist movement in India.
The Mathura rape case had ushered in a wave of public outcry and was instrumental in bringing about wide-ranging changes in rape laws in the country. However, even under the changed legal regime, hardly any substantive improvements seem to have taken place in the ground conditions. Although punishments have become more stringent, the rate of conviction has dropped significantly in the post-reform years. The insensitivity of the justice delivery mechanism and the trauma of the rape victim under an unsympathetic system continue unabated.
The Shah Bano case typifies an attempt at societal change aborted at the altar of political exigency. In this case, the Supreme Court had held that a divorced Muslim woman like divorced Indian women from other religions, has the right to receive a regular maintenance allowance from her husband under Section 125 of the Criminal Procedure Code of India. This judgment had provoked strong reactions from conservative Muslim segments of the country, as it was perceived as an encroachment by the state upon the arena of Islamic law. The Indian government subsequently buckled under the pressure and passed a new law negating the Supreme Court judgment.
The Shah Bano case not merely exposed the importance of the state in bringing about societal reforms in the face of fundamentalist opposition, it also brought out the multifarious ways in which such situations can be usurped by divisive forces to press for various sectarian goals. In this case, conservative rightwing Hindutva forces started pressing for a Uniform Civil Code, ostensibly to further the rights of Muslim women, although it was clear that a Uniform Civil Code by itself is unlikely to better women's position, unless such a code is also actually empowering for women. It is well known that as personal laws under all religions stand today, they are stacked up against women. As has been argued by some progressive Islamic scholars, Muslim personal laws can be reformed for greater gender justice even without recourse to a Uniform Civil Code. This is exemplified by a recent judgment delivered by the Bangladesh High Court, which calls for a progressive reinterpretation of Muslim personal law in line with modern social values.
In the Bhanwari Devil case an enlightened 'Satin' under the women's Development Programme of the Rajasthan government was subjected to mass rape for opposing the practice of child marriage in the community. The culprits are yet to be brought to book. This case continues to typify the near-impossibility, under certain circumstances, of successfully challenging deeply entrenched patriarchal power structures through legal channels alone.
The contemporary women's movement is at the crossroads now. In the light of the experience of the last twenty years, the question that keeps recurring is whether it's instrumental in ushering in any change in the gender balance? Can legal reforms or litigation indeed ever deliver the goods. Law has in fact been often used to reinforce the social subjugation of women. Some believe that given the patriarchal nature of the state, and given the reflection of such bias in the framing and dispensation of justice by the judiciary and its functionaries, it is not sensible to expect that law can ever be a potent force for change in the existing social structure; that the hope of ensuring gender justice using law as a instrument of social engineering is an altogether impossible dream.
In a way this ambivalence about law and legal reforms in matters of securing gender justice is nothing new in the history of women's movement in India. Back in the nineteenth century, when social reformers like Raja Rammohun Roy and nationalists like Bal Gangadhar Tilak were concerned with oppressive social practices like "sati" or child marriage, the tensions between the indigenous scriptural dicta and the colonial heritage of the British legal system always lurked in the background. While Rammohun's denunciation of the practice of “sati” had been based primarily on his reading of the scriptural text, Tilak's refusal to address social issues primarily through legal instruments laid down by the foreign rulers was based on the perceived illegitimate cry of the colonial hegemony in all its ramifications. The social history of the period is replete with the tension between the liberalism strain of thinking of the pre-independence era which was geared to adopt and adapt from Western liberalism traditions on the one hand and the nationalist revivalist movements which aimed at social reforms working from within indigenous traditions on the other. Much of this tendon can be attributed to the dominant political climate of the era.
In the context of the contemporary women's movement, the ambivalence that marks feminist engagements with law as an instrument of ensuring gender justice has a somewhat different character. While demand for legal reforms has been one on the major focus for mobilising popular support, and specific cases of atrocities on women have been used to further the aims of the movement, the disenchantment with the potential of law as an instrument of social transformation has been triggered by two simultaneous developments. On the one hand, last twenty years' experience of the effect of legal reforms had been perceived to be not altogether positive. At least two essays in this collection strongly conform to this view. The meticulously researched documentation by Flavor Agnes on the effects of legal reforms in the area of violence against women covering rape and domestic violence as well as dowry related violence, suggests that laws, old and new, are structured to operate against the larger interests of women. The treatment of women under institutionalisation as argued by Usha Ramanathan in her paper reinforces this view. Neither litigation, nor legal reforms have, in the opinion of the authors, been able to deliver gender justice. The dominant social culture within which such justice is sought to be mediated have proved to be much too strong for legislation or judicial activism alone.
The second development can be traced to the growing engagement of feminist research with the post modernist wave in Western academic thinking and its deconstructionist implications for a monolithic, linear strategy for women's empowerment. Nivedita Menon's paper reflect some of the analytical complexities that arise in the context of cross cutting discourses in the field of law for gender justice. Menon's paper exhibits the undercurrent of tension between conflicting compulsions of contemporary research in feminist jurisprudence and feminist practice and activism in the legal arena. However, recent thinking in the area has made considerable progress in addressing such tension squarely by laying bare the complex and contradictory nature of law, and the need for such understanding for successful accessing of law as an instrument of social change. The arena of law is seen as a site for discursive struggles, where the dominant notions of gender, tradition and culture are challenged from a multiplicity of perspectives, including the feminist perspective. The extent to which law is made to serve as an instrument of gender justice depends to a large extent on an informed understanding of the strength, and the potential weaknesses of the dominant ideology of gender and the ability to engage with tenacity and wisdom, to explore the moral and substantive weaknesses of the familial ideology in the legal arena.
A relatively new area of legal discourse in the context of gender is social rights of women, such as the right to health. Usha Ramanathan's paper recounts the current status of law on women's health. What it does not explore in depth is the whole range of issues that are linked with women's reproductive rights and their legal ramifications. The Indian Penal Code does not admit of the notion of marital rape, thereby signifying a negation of a major dimension of such rights to women. The link between this negation and the role of the dominant familial ideology that shapes the contours of women's substantive legal rights in the country is fairly obvious.
The rights discourse does opine up new dimensions of analysis and investigation. Social movements, which aim at fighting exploitative practices, may utilise the moral strength of individual dignity to strategise the fight for justice. However, in order to invest such strategisation with some substantive content, it has to be properly contextualised. For instance, the whole issue of reproductive health rights for women in India needs to be seen in the perspective of the dismal status of primary healthcare in the country, as also the rampant poverty of the masses that negates access to basic needs irrespective of gender.
The author is a District and Sessions Judge. This article is based on his participatory experience of an international workshop on "gender" jointly organised by the UNICEF-Bangladesh and the Ministry of Women and Children Affairs.
