Abstract
As in many parts of the world, rape in India is rarely criminalized in practice. While Indian law houses an ever-expanding set of provisions against sexual violence (with notable exceptions for marital and same-sex rape), rape charges are frequently suppressed by the criminal justice system, processed with excruciating slowness, or can lead to out-of-court settlements. What is remarkable about the Indian case, however, is the extent to which this general condition of neglect is regularly punctuated by a flurry of state responsiveness: legal reforms, speedy trials, and spectacular punishments. These intermittent outbursts usually follow periods of large-scale political mobilization: lobbying, electoral pressure, and the threat and application of force by mobilized citizens. The aftermath of the Delhi gang rape of 2012, where massive protests initiated legal reforms and helped “fast-track” the case, provides the most internationally visible example of this dynamic. Delhi was far from an isolated incident. It mirrored a series of other moments in Indian history when popular politics overpowered legal procedure and legal institutions.
Like a persistent fly, the Indian case bothers my academic sensibilities. Having read literature on sexual violence and law, I have developed a healthy suspicion of state personnel and come to believe that “strong” states (epitomized by the United States) provide dangerous territory for feminist engagements against sexual violence. State officials appropriate feminist agendas and use legal regulations as mechanisms of social control (Brown 1995; Gottschalk 2006; Gruber 2012; Halley 2006). This theorization informs a number of recent works: Kristin Bumiller’s theory that the U.S. state has “co-opted” feminist movements against sexual violence, Elizabeth Bernstein’s analysis of “carceral feminism” in relation to the Bush administration’s interventions against sex trafficking, Nancy Whittier’s argument that social services administered child protection laws with little regard to questions of equity, and Jeannie Suk’s and Donna Coker’s argument that criminal reforms have allowed law enforcement personnel to control women’s private lives (Bernstein 2012; Bumiller 2008; Coker 2001; Suk 2006; Whittier 2011). Either by design or by default the Indian state continues to house significant openings for radical political engagements around sexual violence. The law in India is not all-powerful. Legal institutions are regularly overwhelmed by the political might of citizens. Rape cases generate immense political conflict with diverse social groups mobilizing around specific incidents and demanding legal reforms. And many of these mobilizations have pushed the Indian criminal justice system toward victim-friendly judgments. While India is by no means unique in this regard (politics can and does overwhelm the law in many countries), it does provide a crucial site for thinking through the relative merits of different state formations and the political opportunities they house for gender justice. What are the possibilities and dangers of feminist engagements in “weaker” states, states that do not command a full monopoly over violence? What does the Indian case tell us about feminist theorizations of state power in relation to sexual violence?
Sexual Violence and State Structure
Before discussing these questions, let me describe the Indian context: namely the social dynamics of sexual violence and the basic features of rape regulation and governance. First, similar to other parts of the world, rape in India is a product of gender inequality and used to police social boundaries and maintain appropriate sexuality. Second, law enforcement personnel are biased against victims. Finally, the Indian state exhibits limited capacities over governmental agendas and enjoys a partial monopoly over violence. Because rape is closely linked to social inequality, certain groups of women and certain kinds of men are more vulnerable to experiencing sexual violence than others. Women and girls are routinely assaulted by someone they know: family members, friends, and neighbors (Kannabirān 2005; Puri 2002). The vast majority of these assaults remain undocumented because India still does not legally recognize rape within marriage. Outside the home, working-class and lower-caste women, religious minorities, and those who reject heteronormative standards tend to be targets. Every major incident of communal violence in India has accompanied mass rapes of minority women (Butalia 1994; Das 2007; Varadarajan 2002). Dalit women, members of the economically and socially oppressed “untouchable” caste, historically have been vulnerable to sexual violence at the hands of upper-caste men (Beteille 1990). Finally, localized studies of kothi and hijra sex workers reveals that transgender communities face high levels of sexual violence from civilians as well as law enforcement personnel (PUCL 2003). 1 Sections 375 and 376 of the Indian Penal Code define and set punishments for rape, while the Code of Criminal Procedure details procedural guidelines for rape cases. Since Independence, Indian legislators have undertaken two major revisions of rape laws, first in 1983 and then in 2013. Despite these reforms, legal implementation remains poor and may in fact be getting worse. While 39 percent of registered cases led to convictions in 1974, that rate had dropped to 26 percent by 2011 (Wright 2013). Social inequality influences case processing. Indian law enforcement personnel assess victimhood through notions of caste, class, religious background, and gender norms. Police officers derail cases by destroying evidence and delaying medico-legal authorizations (NCRB 2014; Prasad 1999). Judges rule not on the basis of bodily violation, but through assessments of how rape impacts property relations and kinship networks (Basu 2011; Das 1996). Despite the blatant illegality of settling rape out of court, rape cases are frequently “compromised” because appellate courts allow petitions to be quashed and judges deem affidavits filed by victims pardoning their perpetrators to be acceptable (Baxi 2010). This condition of general neglect and bias is exacerbated by the fact that law enforcement personnel are themselves perpetrators of sexual violence (Kannabirān and Menon 2007). The Indian state’s poor record in legal implementation accompanies a basic structural constraint. For scholars of political economy, the Indian state is best understood to have a “middling” kind of capacity, exercising limited control over governmental agendas (Chibber 2003; Evans 1995; Kohli 2004). While legal institutions exercise a degree of sovereignty, they are also regularly overwhelmed by the political might of citizens (Chatterjee 2013). Law enforcement personnel do not command a full monopoly over violence, sharing authority with organized gangs, political parties, and local headmen (Hansen 2009; Jauregui 2013).
Political Formations
Among ordinary citizens, the Indian state’s neglect and limited monopoly over violence generates a simmering resentment combined with a sense that the state can be overpowered. A number of mobilizations against rape have been organized by the Indian women’s movement, a loose conglomeration of organizations, institutions, and activists (Gandhi and Shah 1991; Purkayastha et al. 2003). But many protests have involved other actors with little or no connection to feminism. Large-scale political upheaval preceded both the 1983 and the 2013 rape law amendments. The 1983 amendment was a direct product of mobilization around the Mathura rape case, when a sixteen-year-old Tribal girl was raped in police custody. After two rounds of appeals, the Supreme Court acquitted both police officers, using Mathura’s sexual history and lack of visible resistance to discredit her claims (Kannabirān and Menon 2007). The case became a rallying point for women’s rights activists. Prominent lawyers openly criticized the Supreme Court’s decision, while women’s groups organized rallies throughout the country (Gangoli 2012). While members of the Indian women’s movement organized resistance against the Mathura verdict, they were relatively late on the scene in other cases. The extrajudicial execution of a suspected rapist in an open courtroom in Nagpur in 2004 provides a stark example of this process (Nandgaonkar 2004). The execution followed the violent history of Akku Yadav, a mob boss who extorted money from slum dwellers through gang rape and mutilation (Ramesh 2004). The police refused to register survivors’ reports, bribed by Yadav to suppress cases. When Yadav was pulled into court on unrelated charges, approximately two hundred women crowded the courtroom, collectively stabbed him, rubbed chili powder into his wounds, and castrated him. Five of the “ring leaders” in the assault were initially arrested, but then released after women’s rights activists mobilized on their behalf (Prasad 2005). With funding from the Indian state and the Clinton Global Initiative, some of those women founded their own women’s organization, the Kasturba Nagar Community Project. 2 While the protests at Nagpur helped forge alliances between slum-dwelling women and women’s organizations, feminists exercised tenuous control over the mobilizations around the Delhi gang rape of 2012. Jyoti Singh Pandey, a twenty-three-year-old physiotherapy intern, was raped by six men in a public van in Delhi and later died of her injuries. The case quickly took on a life of its own, attracting student groups, middle-class housewives, socialists, members of the armed forces, and right-wing political organizations, many of whom demanded retribution and capital punishment. Violent confrontations between protestors and the Indian police erupted in India’s major metropolises, forcing President Pranab Mukherjee to initiate an emergency ordinance that led to the passage of the Criminal Law (Amendment) Act of 2013. The case itself was placed in a special “fast-track” court and the perpetrators speedily sentenced to death. 3 The events around Mathura, Nagpur, and Delhi exemplify three moments when political forces overpowered the law and legal institutions, moments that varied greatly in terms of the influence women’s rights activists exerted. In Mathura, women’s organizations steered political campaigns. In Nagpur, underprivileged women with little connection to feminism used violence to overpower the law and then became more integrated into the women’s movement. In Delhi, feminists were outnumbered and overwhelmed by assorted constituencies with disparate agendas.
Social Implications of Overpowering the Law
Mathura, Nagpur, and Delhi show how feminists have enjoyed variable levels of control over the politics of rape in India. This fact is socially significant. To return to the questions from the beginning of this essay, What are the possibilities and dangers of feminist engagements in “weaker” states, states that do not command a full monopoly over violence? Weaker states house opportunities for diverse social groups, not just feminists, to weigh in on issues of sexual violence. It is this very diversity that is both promising and dangerous for social equality.
Possibilities: Movement Expansion and Inclusiveness
Because the state is weak in India, even marginalized populations regularly challenge legal mandates. Since the criminal justice system frequently represents the interests of dominant groups, the fact that they can sometimes be overwhelmed may not be a bad thing for the underprivileged. This is the first, and in my opinion, highly positive implication of a context where politics has the capacity to overpower the law. This potential has already been skillfully captured by Partha Chatterjee, who argues that working-class, lower-caste Indians access otherwise inaccessible rights and entitlements through “political society” (Chatterjee 2004). Most significant for the issues under consideration in this essay, Chatterjee’s theorizations intimate that underprivileged people can at times overpower the law independently of established institutional networks, namely, of feminists themselves. Marginalized groups’ abilities to bypass feminists can expand social justice when feminist movements become exclusionary. Weaker states provide greater openings for alternative voices to enter the political arena, voices that may force feminists to sit up, pay attention, and be more inclusive. The events at Nagpur demonstrated how a group of marginalized women gained support and recognition from broader feminist networks once they had already superseded the law. There, we saw a dramatic difference between the “pre” political stage, when individual survivors attempted to register rape cases only to be turned away by the police, and the “post,” when survivors were backed by local women’s rights activists and received financial support from transnational organizations. This turnaround not only benefited the women in question but arguably also the Indian women’s movement. It helped existing organizations forge new alliances and brought new issues under the feminist umbrella. The growth of Dalit activism against sexual violence may provide similar momentum for movement inclusiveness. Dalit women have historically been particularly vulnerable to sexual assaults by upper-caste, upper-class, landowning men. But this vulnerability has been mitigated somewhat in places like Uttar Pradesh, a site of growing caste conflict between Dalits and landowning Yadavs. Soon after wresting power from the Yadav-dominated government, the charismatic Dalit politician Kumari Mayawati issued orders to all police stations to record every single accusation of rape brought by a Dalit woman. This political fiat significantly increased the number of reported rapes, a positive indication that Dalit women had greater access to the halls of justice (Sharma 2014; Sundaram et al. 2013). When Mayawati lost power in 2012, Dalit rape victims once again found it difficult to register reports. The number of rapes reported by Dalit women fell from 375 cases in 2011 to 285 in 2012 (NCRB 2014). Despite these vicissitudes, Dalit women’s increased engagements around sexual violence may be transforming the politics of women’s rights in India, forcing feminists to think more carefully about the linkages between sexual violence and economic and caste marginalization (Govinda 2009; Guru 1995).
Dangers: Usurpation and Marginalization
By creating greater openings for popular politics, weaker states not only allow alternative voices to emerge and transform feminism in positive ways, they also enable disinterested and hostile interest groups to sideline feminist goals entirely. Here, the gendered character and dynamics of mainstream, nonfeminist, political movements and institutions demand careful consideration. First, sexual violence attracts popular attention and outrage when it taps into existing social anxieties and tensions (Benedict 1992). Second, political institutions continue to be dominated by men and represent men’s interests in most parts of the world (Paxton, Kunovich and Hughes 2007). These features of mainstream politics are unpromising both for individual victims and social justice at large. Broader political mobilizations require a certain degree of communal consensus, for it is the community that provides the ammunition necessary for taking on the law. The “community,” however, is a problematic site of gender empowerment largely because community members tend to be just as sexist, racist, and classist as state officials. In rape cases, relying on the community often means that people who are recognized as sympathetic victims gain greater social support, while perpetrators who are considered to be “folk devils” are more likely to be demonized and face political consternation (Cohen 2011; Minow 1992). Race, class, sexuality, and ethnicity all matter in the formation of who is socially deemed to be a victim and who a perpetrator (Bumiller 2008; Collins 1998; Wakelin and Long 2003). Cases that catch public attention and become “high profile” especially play on these stereotypes (Chancer 2010). This aspect of mainstream political movements has devastating implications, for it means that certain cases gain greater traction with the public than others, with direct consequences for legal outcomes. The unprecedented mobilization around the Delhi gang rape highlights the problematic implications of popular mobilization. Pandey was not the only women to have been brutally gang raped and killed in the last few years in India. But due to Pandey’s residence in the capital city and the fact that she was a member of the aspirational middle-classes, having risen from a working-class background to enter the medical profession, she became a national symbol (Roychowdhury 2013). The fact that her perpetrators were working-class, lower-caste, migrant men who lived in slums and were itinerantly employed also helped evoke public ire. Indian newspapers and politicians alike were awash with comments about the threat that these kinds of men posed to women’s safety. Meanwhile, a host of similar incidents received scant attention. More recently, the lynching of suspected rapist Syed Sharif Khan in Nagaland provides a dramatic lens on the social dynamics of mainstream political resistance to rape. Khan, a Bengali-speaking Muslim trader from the nearby state of Assam, was dragged out of the Dimapur police station by a mob that broke through the station gates and overwhelmed the local force. He was stripped naked, beaten, and eventually hung. Khan’s family alleges that he was targeted by the mob because of long-standing hostilities against Assamese migrants. Khan’s extrajudicial execution eerily echoes Yadav’s assassination in Nagpur. While Yadav’s death heralds images of women’s empowerment, Khan’s points to the numerous ways gender, and especially the issue of sexual violence, is routinely appropriated for diverse political projects. The image of the rape victim has, after all, been a useful tool for nationalist and communal agendas in India (Jeffery and Basu 2012; Sunder Rajan 2003). Hindu nationalists have repeatedly drummed up political support by arguing that Muslim men are rapacious and threaten Hindu women (Basu 2001; Kapur and Crossman 1993). Uma Bharati, prominent member of the Hindu nationalist Bharatiya Janata Party and current cabinet minister of Prime Minister Narendra Modi, famously encouraged supporters to destroy the Babri Mosque in 1992 by making this very argument. 4 India’s history with communal violence highlights how the politics of rape can rationalize social inequality, rather than undermine it. Further down the slippery slope, weaker states are beneficial for perpetrators, not just victims. This is where it is important to remember that politics itself is not a gender-neutral mechanism of resistance. In India, as in many parts of the world, the domain of politics continues to be highly masculinized in two senses of the term. First, men are overrepresented within the membership base of political organizations, and they dominate top positions within political parties. These representative biases hold across parties of all persuasion (Sandhu and Ravi 2014). In 2014, women held 12.2 percent of all seats in India’s upper and lower branches of parliament, placing the country well below the already poor world average of 22.2 percent (IPU 2015). Second, the art of politics in India privileges traditional forms of masculinity, namely, the ability to effectively command and deploy violence. Politics has, in fact, become more violent in India in recent years (Corbridge, Harriss, and Jeffrey 2013; Heller 2000). One in three members of India’s parliament is currently under investigation for criminal activity, including for murder and rape (Varghese 2014). None of this is very surprising given that violence is utilized with increasing frequency to dominate electorates and opponents alike (Kochanek and Hardgrave 2007; Shastri, Chinnaya Suri, and Yadav 2009). Rape is a popular weapon in these political battles (Baxi 2005). The political uses of rape have surfaced repeatedly, from BJP-organized communal violence against Muslims in Gujarat in 2002, to the Communist Party India (Marxist)’s employment of sexual violence to silence rebellious peasants in Nandigram in 2007. 5
Conclusion
In this essay, I have used the Indian case to think through the possibilities and limitations of feminist engagements against sexual violence in “weaker” states, contexts where popular politics regularly overpowers the law. I have argued that diverse social groups tend to challenge the state’s treatment of sexual violence when state officials do not exercise tight control over laws and legal procedures. Feminists are but one faction in these battles. And it is this very diversity that is both promising and dangerous for social justice. On the one hand, weaker states allow marginalized groups to make tangible gains. When the system as it “usually” works does not work for the underprivileged, politics may provide the only means for getting anywhere. In India, the underprivileged include women and children at large, people who lack access to traditional sources of power (land, caste privilege, and capital), and sexual minorities. Their violations are either not covered by the law at all, or silenced when they claim state protection. The system, when it works, works against them. Thus, quietly following legal procedure makes little sense. Stepping outside the law and exerting political pressure provides one of the only available means to some semblance of safety and compensation. Those who use politics to overpower the law may be able to disrupt established power relations and secure otherwise inaccessible rights and protections, and these disruptive possibilities pertain not just to legal institutions but also to the power relations within existing feminist networks. By providing room for marginalized populations to stage independent battles, weaker states may inadvertently bring new people into the women’s movement, redefining and making feminism more inclusive. These are the possibilities that congealed in Nagpur and may be taking shape around Dalit mobilization in Uttar Pradesh. While weaker states thus provide avenues for justice to historically marginalized populations, they also open the door to anti-feminist, communitarian groups. The overwhelming masculinization of political culture and political institutions in India, and in most parts of the world, means that feminists are frequently outmaneuvered. The experiences of victims are routinely appropriated by diverse political initiatives and serve as a site for communal and ethnic aspirations. These are the dangers of weaker states articulated in Nagaland and the gendered politics of Hindutva. Just as the “usual” workings of the law discriminate against women, sexual minorities, and marginalized groups, the “usual” workings of political life privilege men, the overwhelming perpetrators of sexual violence. In India, political parties use rape as a political weapon and then help their members evade justice. Politics is generally a tool used by perpetrators to silence their victims. These are the cases we rarely hear about, because they are normal and everyday. Cases like Mathura, Delhi, and Nagpur are extraordinary; they are rare instances of political life working in women’s favor. Both the possibilities and dangers of weaker states thus emerge from the same feature of the state: its flexibility, that is, its inability to completely defend itself against external political threats, and its tendency to be “captured” by citizens. Every stage of rape law, from policy formation, case processing, and sentencing, to the very limits of what the law does or does not govern, ostensibly responds to the will of the people. But the will of the people can be a fickle and dangerous thing. So what does the Indian case tell us about feminist theorizations of state power in relation to sexual violence? It means that gender scholars should be as wary of weaker states as they are of strong states, if for different reasons. If feminist campaigns in countries like the United States tend to be co-opted by the criminal justice system, the danger in countries like India comes from a different direction. Feminists have to contend with the very real possibility of annexation and marginalization by other civil society groups, groups that may have little concern for social justice. The fact that feminists and their allies will regularly be sidelined also means, however, that sometimes they will win, and they will win big. This volatility brings its own hazards. First, it indicates that weaker states may house greater variability in legal outcomes around rape cases. The state tends to act like a pendulum, swinging this way and that depending on the composition and relative power of the political forces that confront it, and it may seesaw between extreme negligence and spectacular punishments. There is some limited evidence indicating that the Indian state behaves exactly in this fashion. Further comparative analysis along with statistical research is needed to establish the reliability and validity of these observations. The volatility of weaker states may also have a more insidious effect, impacting not just legal outcomes and social inequality but the very ways feminists understand and emotionally respond to the hurdles they face. Extraordinary situations like Delhi or Nagpur are hard to resist. The extraordinariness of these situations is lost in a euphoria shared by academics (including myself), activists, and the general public. They create a feeling of permanent, rather than temporary, gains. They are seductive; we feel empowered. And just as life settles back to normal and other cases are jettisoned, another new extraordinary moment arises to break up our disenchantment and make the situation tolerable again. Weaker states are thus ultimately dangerous for feminist engagements because they make the general condition of sexual violence appear unsystematic. In this way, a context where politics can overpower the law may result in a relative amount of governmental stability. It provides occasional respite and brief gains. The promise that ordinary citizens can occasionally get together and force the bureaucracy’s hand makes the overwhelming fact of state neglect appear less totalitarian. Hope for victims lies in not being seduced by such episodic triumphs. It is important to fight against the media-induced sensation that the mobilization in Delhi in 2012 was a new and remarkable event for India. Delhi was preceded by Nagpur, which was preceded by Mathura. These cases also “made it big” to a certain extent, getting people agitated and on the streets. Mathura initiated legal reforms of very similar scale to Delhi. But these cases did not fundamentally transform the social conditions that give birth to sexual violence against women, children, and sexual minorities: heterosexist gender norms, patriarchal kinship systems, economic marginalization, and the very character of political life. Nor did they address the institutional foundations of state neglect: overburdened courtrooms, ill-compensated and ill-trained police officers, and sexist and classist bureaucrats. Notably, the 2013 Criminal Law (Amendment) Act ignored the Verma Committee’s recommendations for large-scale changes in policing, the greatest institutional buffer to rape case processing in the Indian context. 6 By further contemplating the dangers of weaker states, gender scholars may find themselves reevaluating the relative merits of stronger states, as well as the common sources of gender inequality across these diverse contexts. It is of course true that criminal justice institutions in the United States have expanded with remarkable speed over the past few decades, incarcerating unprecedented numbers of people. And feminist campaigns for legal reform have perhaps aided and abetted these transformations. But while this situation leads some academics to look outside the state for the purposes of enhancing gender equality, the Indian case indicates that the state cannot be abandoned just yet. In India, the criminal justice system constantly cedes authority to citizens and citizens then serve as arbiters of who deserves punishment and who, protection. This situation houses certain emancipatory possibilities, but it also provides a dangerous terrain for social justice. Further mobilization must accompany institutional reforms within the state if people are to live lives less defined by the threat of sexual violence.
Footnotes
Notes
Poulami Roychowdhury is assistant professor of sociology at McGill University. Her research focuses on gender, politics, and governance. Roychowdhury has written about criminal justice and women’s organizing around domestic violence in India (“Victims to Saviors,” Gender & Society 2015), masculinity and social movements in New York (“Brothers and Others,” Social Problems 2014), and international media and sexual violence (“The Delhi Gang Rape,” Feminist Studies 2013).