A critical question for feminists to ask when women turn to the law is whether a legal victory is always a triumph of the feminist worldview. Violence against women is ubiquitous in patriarchy. It pervades virtually all spheres of lives, happening most often in relational spaces. Without questioning the necessity of the law, it seems that the work of feminism must include a detailed analysis of the many moments in which women experience violence such as sexual harassment at the workplace and at educational institutions.
Every violent act – whether it is a comment on the looks of a classmate, persistent messages from one student to another, or rape – constitute violence. Must all these be treated within a legal framework? And is ‘punishment’ the only imagination of justice? Perhaps more pertinently, does ‘punishment’ belong in a feminist approach to justice?
Feminists have had a rather contentious relationship with the law, and thereby with the state. In India, for instance, feminist campaigns have reposed great faith in the ability of law to initiate and establish equality and freedom on the one hand; on the hand, feminists have doubted and been skeptical of the very foundations on which modern legal systems are based. Consider the two moments where feminists in India have engaged with law – the Mathura custodial rape case and the infamous Delhi bus gang rape case.
The Mathura rape case (1972) was undoubtedly a watershed moment in India; it signalled a radical shift in the focus of the women’s movement and feminist politics in India, and its engagement with the law. In 1974, the Committee on the Status of Women in India published its landmark report – ‘Towards Equality’ – and demonstrated an abiding faith in the ability of legislation to act as the major instrument for ushering in changes in the social order.
The Supreme Court of India belied this faith when it pronounced its judgment in the Mathura rape case. Mathura was a sixteen year old girl who was raped by two policemen who were on duty. She fought a courageous battle in the courts only to find that the Supreme Court of India cited the absence of injury marks on her body and her failure to have raised an alarm as evidence of consent for sexual encounters. Following the judgement, sustained feminist campaigns resulted in many substantive changes in Indian criminal laws as passed in 1983.
In response the Mathura case, an Open Letter to the Chief Justice was authored by teachers of law at the University of Delhi Upendra Baxi, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar. The letter represented a thrilling moment in the history of women’s movement and its long battle on the question of violence.
Thirty two years later came the Delhi bus gang rape case. This was a brutal and aggravated sexual attack perpetrated against a 23 year student traveling home on a bus after an evening out with her friend. It horrified people across India and, indeed, the world. She and her friend fought back only to be beaten mercilessly with iron rods, resulting in grave injuries that finally resulted in her death. This incident resulted in angry protests in the city of Delhi and elsewhere, compelling the government to review the existing legal framework – a process that resulted in further changes in the law.
Just months later, the Justice Verma Committee Report was released in response to protests across the country. This report laid the foundations of the Criminal Law Amendment Act 2013, and became an occasion for feminists in India to engage deeply with the nature of law and the crime and punishment matrix.
Law is not static; it is best understood as a process that unfolds rather messily and haltingly. While the legal dispensation might nudge along progressive change, its ability to render justice remains limited. While the law might nurse implicit emancipatory potential, it harbours within it the seeds of what might be called a ‘carceral’ and aggressive feminism that is hostile to conversation, dialogue, mediation and conflict resolution. The power of the legal statute combined with a rigid and unimaginative invocation of identity politics, can result in nasty and bitter and – dare we say – violent use of the law. What do we do when groups of feminists argue with each other, and use the power of law to settle disputes? Can the law, as Pratiksha Baxi asks, translate sexual agency and desire into juridical categories?
Feminists in India have reflected upon other conceptions of justice and indeed the impossibility of justice within what is essentially a masculinist legal paradigm (see also Menon’s Recovering Subversion and Sethi’s commentary ‘Why the Mahmood Farooqui Judgment is Deeply Flawed’). It is this kind of questioning that has led feminists in India and elsewhere to value emotions and account for the specificity in each instance, rather than be guided solely by universalising frames and principles based on ‘reason’ and empirical evidence. Such an orientation towards questions of legality and justice would be concerned with setting limits to the use of law. It would value friendship, compassion and relationality as frames within which to examine the question of justice.
Do these two approaches have to be pitted against each other? As feminists we would caution against the setting up of yet another unfruitful binary. It is only through the difficult task of feminist engagement with the law, legal processes, legal institutions, legal education and the legal profession that the distance between these two approaches will be creatively negotiated. We see the sixteen days of activism against gender-based violence as yet another significant initiative in this direction.
Krishna Menon is Professor of Gender Studies, is and currently Dean of the School of Human Studies, Ambedkar University Delhi. Some of her recent publications include Social Movements in Contemporary India (SAGE Texts 2019), ‘The “Right” Music: Caste and “classical” music in south India’ in Discourse on Rights in India: Debates and Dilemmas (Routledge 2018).
Bindu K.C. is Assistant Professor in gender studies at Ambedkar University Delhi. Her teaching and research expertise are at the intersection of gender studies and English literature.
Rachana Johri is a Professor at the School of Human Studies, Ambedkar University Delhi, where she teaches psychology, psychosocial studies and gender studies.