Anupama Roy. Australian Feminist Studies. Volume 29, Issue 81, 2014.
The brutal gang rape of a young woman in Delhi in December 2012, widely reported in the national and international media, precipitated an upsurge of protests across the country, which soon boiled into public rage. Persistent demands for an immediate response by the state led to the setting up of a three-member committee, known as the Verma Committee, which recommended radical reforms in the criminal law pertaining to violence against women. The Committee, headed by retired supreme court judge Justice J. S. Verma, and comprising retired Justice Leila Seth and Solicitor General Gopal Subramanium, was constituted on 23 December 2012 to look into the possible amendments in the criminal laws related to sexual violence against women and submitted its report a month later. The Committee’s recommendations were, however, watered down in the Criminal Law Ordinance, 2013 and the Criminal Law (Amendment) Act, 2013, which the national parliament subsequently enacted. In this paper, I will attempt to identify the multiple strands which discursively constituted the ‘Delhi gang rape case’ to examine how an imagined community of citizens was constructed around the figure of the raped woman. The paper sees the Delhi gang rape as an ‘event’ which assumed criticality by becoming a part of incremental accumulation of memories of gendered violence. December 2012 became a point of convergence for discrete memories of violence which, while located in different temporalities, became momentous by acquiring simultaneity, contemporaneity and historical co-evalness in the continuous present. While tracing the manner in which the Delhi gang rape became a critical event, the paper will examine the relationship between Indian feminism and the state, and the manner in which state and law become constitutive sites of contestation.
Events, as Veena Das has pointed out, become critical when they ‘institute a new modality of historical action which was not inscribed in the inventory of that situation’ (Das 1995, 5). I will tweak this articulation to say that events become critical if they have the potential of instituting a new modality of action. While the present may be a constraint, through a continual aggregation of practices of signification, the event may acquire criticality in the same or in a different time/space. The Delhi gang rape acquired criticality to constitute an event, which is to say, it became momentous through the unleashing of new modalities of action, built through a convergence of forces, which were drawn from the past and reverberated through the present.
Let me illustrate this with a narration of how the 1971 war was remembered in 2001 through the performance of a feminist solidarity against the burdens of nationalisms and the nation state. The narration is taken from a description by Uma Chakravarti (a feminist historian and democratic rights activist in India) of a women’s studies conference held in Lahore in 2001. One of the sessions in the conference on ‘women in conflict’ was held on the 30th anniversary of the Pakistan government’s military action on the erstwhile East Pakistan that had led to the liberation/secession of Bangladesh from Pakistan. As the session began, Chakravarti writes, the participants stood in the memory of those who were raped and killed in the war of 1971:
We stood not in silence but to the strains of Nayyara Noor’s poignant rendering of Faiz’s ‘Hum to thehre ajnabi kitni madaraaton ke baad, phir banenge ashne kitni mulakaton ke baad, kab nazar mein ayegi bedaag sabze ki bahar, khoon ke dhabbe dhulenge kitni barsaaton ke baad’ (hospitalities exchanged, yet we remain strangers, after how many meetings will we become intimate? When will we sight the spotless green? After how many rains shall the bloodstains fade?) written on his visit to Dhaka in 1974. Every one of us, from Pakistan, from Bangladesh and from India, carried our own particular burden of memories and we followed up the standing in memory with a strongly-worded resolution demanding that the Pakistan government apologise to the women of Bangladesh for the sufferings they caused to them in 1971. We realised that we shared a wound that healed to an extent through this act despite our recent histories. A shared bond was articulated in that experience, both in the conference and outside it, as we recalled the isolations of that moment and others—when women stood and acted against the grain. (Chakravarti 2009, 51)
In Chakravarti’s narration, 1971 was committed to a shared memory of co-memorialisation in 2001. If 1971 was an event made part of a recursive history of nation state formation, imbued with cartographic anxieties, and replete with conflict over borders, the partition and parcelling of South Asia into three nation states, the Lahore conference sought to pluck it out and re-inscribe it into a new framework of knowledge and action, installing it into a space which was hitherto unfamiliar for the event. Its co-memorialisation in the Lahore conference sought to reclaim and re-inscribe it through an alternative rendition, extricating it from the statist way of knowing and telling of stories, changing thereby the significance of 1971 from an event which violently etched fresh borders on the map of the subcontinent, to one which committed it to a new framework of memories of resistance. In a symbolic reverberation of the slogan of the Argentinean mothers of the disappeared—nunca mas (never again)—the Lahore conference gave 1971 a new life, and criticality.
Whether events are immediately momentous or become so at a later date, they unsettle and redefine categories, as they did for 1971 and the earlier partition of the subcontinent in 1947, by re-enunciating codes of purity and honour, the meaning of martyrdom and the construction of a heroic life. In his book on Chauri Chaura, the historian Shahid Amin writes of the peasant police clash in Chauri Chaura in February 1922, as both an event and a metaphor (Pandey 2001, 94). As an event fixed in time, and also a metaphor gathering significance outside this time frame, ‘Chauri Chaura, a place name became a figure of speech, a trope for all manner of untrammeled peasant violence’ (Amin 1995, 3). It also became emblematic of the diverse and divergent ways in which Chauri Chaura was institutionalised: as an aberration in nationalist history; as an autonomous consciousness of the peasant masses who acquired political subjectivity outside the disciplinary regime of civil disobedience; and even as an event which, in the years after independence, failed to be recognised in the register of the freedom movement, except for having put a sudden halt to the civil disobedience movement. The criticality of the Delhi gang rape lies precisely in the way in which incremental memory came to inhabit the coalescent present so that the past acquired an unprecedented elaboration in both the protests and its outcomes. This elaboration took place through ‘the sense of contemporaneity [which was] established between non-contemporary events on the one hand, and the transformation of individual biographies into social (and political) texts on the other’ (Das 1995, 11). The transformation of an individual biography in the Delhi gang rape in particular, ruptured the culture of secrecy and shame surrounding rape, so that sexual violence came to be talked about and discussed in public and in private not as the ‘zones of emergency inscribed on the bodies of dalit, tribal, religious or sexual minorities’ only, but in the ‘recognition that we are all living in states of sexual emergency’ (Baxi 2014, xlvii).
The ‘Delhi Gang Rape’: The Bare Facts
If the ‘bare’ facts of the Delhi gang rape were to be recounted—the way a First Information Report of the police would probably have registered it—it would come across as one of the several incidents of different intensities recorded in the crime files of Delhi Police. The facts would constitute the ghatna/vardat (an incident) which happened on the night of 16 December 2012. After watching Ang Lee’s film The Life of Pi in a Cineplex in a mall near Munirka, close to the Jawaharlal Nehru University (JNU) in New Delhi, a young couple hopped onto a private bus (as distinct from the government run Delhi Transport Corporation buses, which of course does not mean that government buses are any safer as countless women have been pinched, jostled, harassed and abused on them). Little did they know that the young bus conductor who urged them to board the bus, and five other men who were already aboard, would turn on them, subject the woman to a brutal rape, tearing and mutilating her body, and beat up her friend, dumping both of them naked on an isolated stretch of road which led into Gurgaon, an affluent suburban town on the outskirts of Delhi.
In the days that followed these bare facts, which constituted the criminal act or the ghatna/vardat, were encased into layers of information, which had initially been screened out or selectively disseminated by the police. Thus the newspapers reported that the woman was not alone but with a male escort and, if the readers wanted to know the relationship between the two, there was a further piece of information that the man accompanying her was indeed her fiancée, who she was planning to marry soon. For a substantial section of Delhi’s residents the anonymous raped woman became a ‘legitimate’ victim whose rape could be protested against, and a ‘worthy’ one too, since she was perceived as a fighter who was struggling for life in a city hospital. For an equally large number of people, the ‘rape’ became symptomatic of all that was wrong with the government: corruption, inefficiency and apathy. In what appeared to be a second season of mass protests in Delhi—the first featuring Anna Hazare’s hunger fast at the Ramlila Maidan in Delhi against corruption in public places in the summer of 2011—there was an upsurge of protests and anger against the government, with the protesters demanding the resignation of the police commissioner of Delhi.
The protests surged in waves, initiated in the immediate aftermath of the rape by the Jawaharal Nehru University Students Union, which took the city administration by surprise. The protesters appeared almost like a flashmob in the heavily secured Raisina Hill area along the intersection between the North and the South Blocks. This area houses the national government and a ponderously powerful bureaucracy, with the President’s House and the circular building of the Parliament House at two other ends, completing an imposing picture of concentration of power and authority. Having almost made it into the precincts of the President’s House, the students dispersed from Raisina Hill, to congregate once again at the India Gate. The region around India Gate was subsequently brought under the purview of Section 144 of the Criminal Procedure Code, an archaic remnant of a colonial law which disallows public gathering, rallies and demonstrations. Indeed, for the purpose of qualifying as a rally, the presence of four persons is considered sufficient. Soon enough, India Gate and the adjoining Rajpath became sites with the potential of becoming India’s Tehrir Square, as students, young women and men, school children and families made their way to it, demanding stern and immediate action from the government. The police resorted to force to scatter the crowds, using water cannons and putting up barriers to prevent people from collecting at the India Gate and Rajpath. The city became fortified, with security measures being much tighter than at other times of high alert. People entering Delhi were monitored and underground railway stations were shut, making access to the city centre difficult for potential protesters.
It is significant that the Rajpath, which was known as the Kings Way when India was a colony, is ‘a road whose name and location signal the exercise of state power’ (Guha 2007, xvii). Stretching for a couple of miles from India Gate and climbing onto the Raisina Hill, the Rajpath is flanked on both sides by vast expanse of green lawns, which accommodate thousands of spectators on 26th January every year to witness the annual ritual of the Republic Day. In the early years of the Indian Republic, the Boat Club and India Gate lawns not only were just the spaces where an annual display of military power and might of the state took place but, importantly, were also sites for the emergence of the public sphere. The public sphere, as Hannah Arendt has put it, is ‘that sphere of appearance where freedom and equality reign, and where individuals as citizens interact through the medium of speech and persuasion’, communicating and deliberating on matters which are of shared concern (Arendt as quoted by D’Entreves 1994, 104). For Arendt it was the public sphere which was the only repository and guarantee of equality and freedom. Seen in Arendt’s framework, the Boat Club and India Gate lawns would embody a world of public appearance, where the immense multitude could claim the Rajpath to express the desires of the Janta (the people). It is the continual and persistent creation of worlds of public appearance, which would generate an enduring public sphere, where the republic of the people would come together, bound by shared citizenship, regardless of the ways their culture, ethnic and other loyalties were constituted.
This public space of appearance, however, was not entirely of the people. Periodically the government of the day, as well as dominant political parties, would lay claim to it, in a contest over competing shows of strength. In the early 1990s a government order placed Rajpath out of bounds for political rallies and demonstrations in the interest of national security and public order. Rajpath was purged of the people and restored to the state. The tents put up by protesters were shifted to Jantar Mantar, an observatory in the region adjoining the Cannaught Place, and then again to a more constrained space at the Mandir Marg-Shankar Road crossing, where the tents could come up and sit-ins take place, after a prior permission from the local police station had been obtained. The progressive constraining and confinement of public dissent to designated and assigned spaces to five-and-a-half yards of democracy from the mammoth possibilities allowed by the vast stretches of the India Gate and Boat Club is symptomatic of the manner in which a security state reinforces itself through the affirmation of power by force. Such a state is marked by the decline of the public sphere of politics, the emergence of bureaucratic rule or the ‘rule by nobody’, and the rise of an amorphous, anonymous, uniformising reality that Arendt calls the ‘social’, a realm characterised by the predominance of economic contractual relationships (Arendt 1958, 41).
The ban on congregating at the India Gate came close on the heels of the demolition of the Babri Masjid in Ayodhya in December 1992, following which the Bharatiya Janata Party (BJP) decided to hold a rally at the Boat Club on 25 February, to be addressed by Atal Behari Vajpayee. While it did not use the word ‘ban’, the government disallowed the rally, stating that permission to hold it would not be given. The area around the Boat Club was subsequently brought under a ‘permanent ban’, which operated through Section 144 of the Criminal Procedure Code which, as mentioned before, empowers a government official, including the police, to declare an assembly of four or more persons unlawful, disperse a public gathering and allow the police to restrict public gatherings in the area for a period of 50 days. This restriction, however, was allowed to operate as a permanent ban through periodic renewals. In 2011, Bano Bi, a Bhopal Gas case ‘victim’ camping at Jantar Mantar, petitioned the Delhi High Court against the operation of Section 144 as a permanent ban on holding public demonstrations in central Delhi district. The Delhi High Court ordered in the petitioner’s favour which meant that the Delhi Police could no longer operate a blanket and permanent ban by continuously renewing it.
In December 2013, following the protests around the gang rape, the government invoked Section 144 yet again, to make the region around India Gate and Rajpath out of bounds for the people. In the days that followed, right up to the passing of the Criminal Law (Amendment) Act 2013, protesters defied the ban, claiming city spaces. In the course of the protests, the city was marked with numerous shrines—the Munirka stop where the student and her friend had boarded the bus, the hospital where she was being treated, and Jantar Mantar, among several others—became points where the residents of Delhi lit candles and held vigils. In the process, what occurred was an iconisation of the raped woman through her figuration as Damini (a bolt of lightning), Abhaya/Nirbhaya (fearless, another name for the Goddess Durga) and Amanat (something people hold together in trust, a heritage). Since the law prevents the name of the raped woman from being made public, each of these names used in the media and by the protesters to address her, was also a consciously devised ascription connoting a distinct positive attribute. The simultaneity of protests in different parts of the country forged a solidarity borne out of shared outrage mediated by social network sites and animated discussions on the television and in the print media. As the nation listened expectantly to hourly updates from the police commissioner and the hospital on the progress in the case, and a corresponding decline in her health, it produced an imagined political community of citizens. This community was not confined to India but encompassed Indians abroad.
The protests and demonstrations were organised partly by student organisations, women’s organisations and political parties, who would in that case hold up placards announcing their separate affiliations. A large number of the protestors, however, were unattached and unaffiliated. In both its organised and amorphous forms, the protests demonstrated strong ideological variations which I will, even at the risk of simplification, call the masculinist honour/izzat strand, and the feminist freedom/azadi strand. As the discussions in the following sections will show, these strands invoked distinct and indeed divergent ideas of the state, drawing upon the different ways in which the modern state exercises power over its citizens to elicit their obedience and consent.
The masculinist ideology of the state makes itself manifest through two modes of power; as Iris Marion Young has put it: a dominative mode expressed through coercion and a persuasive/pastoral mode whereby the state assumes the role of the protector. Both these modes have the common effect of producing subordinate citizenship. While dominative masculinity is embedded in the male domination model, ‘the logic of masculinist protection’ (Young 2003, 1), in contrast with self-consciously dominative masculinity, invokes an apparently protective/persuasive masculinity, associated with ideas of the chivalrous and gallant masculine man, who is, loving, self-sacrificing and protective towards women. Quite like Foucault’s enunciation of pastoral power (2007), in the exercise of this mode of power the state appears benign and yet instills the indispensability of its role as protector. The appeal to its role of a protector allows the state to launch an unprecedented reinforcement of its coercive apparatus through the enactment of new extraordinary laws, vigorous application of existing ones and establishment of surveillance systems, for dissuasion of dissent. Subordinate citizenship which ensues makes citizens united in a solidarity of ‘grateful love’ of their country, and dependence on the state for protection of their lives, a function which they are led to believe, can be performed only by a ‘strong and vigilant’ state (Young 2003, 9). In its dominative role, the security apparatus of the state becomes pronounced. Legitimating itself on grounds of reasons of state, the ‘securitized regimes of the state’ work within a logic of ‘emphatic non-accountability’ and a ‘culture of impunity’ without fear of punishment (Mohanty 2011, 79). The gendered ideology of impunity is anchored in militarised masculinities (or muscular militarism) which requires ‘neither participation nor consent from its citizen’ (2011, 78). The persuasive idiom of the security state, on the other hand, invokes the patriarchal ideologies of protection and security that assume obedient, docile and consenting citizens.
Fault/Lines
Izzat/Honour
The honour/izzat strand among the protesters invoked the persuasive power of the state, by appealing to its protective role as the head of the family. The protection of women’s honour could be achieved by affirming the family as a space of security, distinct from the world outside, which was teeming with dangerous men. The process of affirmation required the acquiescence by the women to masculine protection, of the family and, by implication, that of the patriarchal state. This disciplinary regime of the state in alliance with the family was perhaps best exemplified in the description of the raped woman (who was in a critical condition but still alive) by Sushma Swaraj, a senior leader of the BJP and the leader of the opposition in the Lok Sabha (the lower house of the Indian Parliament), as ‘zinda laash’ (living dead), equating the loss of izzat/honour with death. Alongside, the tropes of a shamed nation and stories in the international media, somewhat reminiscent of the colonial discourses of the ‘low status of Indian woman’, circulated as the gross underbelly of India’s lopsided modernity and economic growth. Quite like the nationalist discourse in the context of the anti-colonial movement, women were construed as the bearers of the nation, who needed to be restored as symbols of national honour. The process of restoration involved the reinforcement of the power of men to both define what constituted honour and to take strong measures to preserve it. Izzat/honour became a dominant slogan for a vociferous section, baying for the rapists’ blood, demanding like a lynch mob that the accused be handed over to them and asking for retributive punishments like castration and death by hanging. This, combined with statements coming from some politicians, smacked of a masculinist camaraderie cutting across party divides and a patriarchal ownership over the authority to decide on the final course of action. Thus, while the Home Minister refused to speak to the protestors on the ground that he could not parley with Maoists, a Minister from the northern Indian state of Haryana commented on the provocative clothes that young women wore. Another patronising remark was made by a West Bengal MLA (who was also the son of the President of India), dismissing the protesting women as ‘dented and painted women’. Together, they manifested masculinist solidarity where the security of their women was a male privilege and preserve. In perhaps the most blatant manifestation of this solidarity was the statement by Asaram Bapu, a spiritual leader with a massive following in the country, that the raped woman was equally responsible for what happened to her. She could have, he suggested, called the rapists her brothers and begged them to stop. (“Delhi Gang-Rape Victim Equally Responsible” 2013)
For both Asaram Bapu and the minister from Haryana, the domestication of women was an important corrective for the restoration of men’s honour and indeed, by implication, the erasure of their emasculation which ensued from violation of women’s bodies under their protection. Not surprisingly, the assertion of state authority was directed towards producing the domesticated female body, largely by instilling fear rather than confidence among young women. In the immediate aftermath of the rape case, the Delhi Police came up with a safety primer for women, which was displayed at several places in the city, particularly outside women’s colleges. The advisory as reported in the Times of India (“Delhi Police Tips for Women Draw Flak” 2013), asked women, among other things, ‘to restrict their lives—head home straight from school/college—and to run scared—don’t retort if you are harassed; dodge a stalker by changing buses and autos’. The students union of Lady Shri Ram (LSR) College for Women in Delhi, which was one such institution where the advisory was displayed, the newspaper reported, called the advisory in its online group, a ‘rib-tickling list of kya karein aur kya na karein (Do’s and Dont’s) for a girl to evade any potentially threatening situation’. The police hoarding titled ‘Bus mein safar karte samay nimnalikhit suraksha upay aapnay’ (safety tips for a bus journey) and ‘chhatrao ke liye sujhao’ (advice for women students) listed instructions such as ‘do not stand at a bus stop in a dark, unlit place; don’t board an empty bus; don’t take a shorter, desolate route, but a crowded, even if longer, well-lit road; don’t eat in the bazaar, etc’ invoked a similar response from the LSR students union:
We are DEFINITELY not advising you to follow this list’, adding, ‘this may give you your week’s deserved laughter, but it is astonishing to see how we are told how to behave and there remains no big board issuing a warning to the perpetrators by the police. Agreed, some of the points do make sense, but it is utterly despicable to see how we are being censured for a crime perpetrated by someone else. (“Delhi Police Tips for Women Draw Flak“ 2013)
By emphasising on honour as being of central concern in a rape case, the izzat strand appealed to the protective masculinist state, empowering it to devise and enforce codes of behavior which brought women more emphatically than before within the disciplinary power of the state. Even as the state allied with the family by making norms of purity and honour more rigid, it simultaneously buttressed its powers of executing deterrent punishments like the death penalty by rallying an enraged public opinion in its favour.
Azadi/Liberation
The liberation/azadi strand of demonstrators broadened the ambit of the protest to draw attention to some of the overarching, foundational and organisational matrices of people’s lives—political, economic and social—to show how the nation state, state, communities and citizenship are embedded in gendered hierarchies. The protesters belonging to groups affiliated to the left parties, especially the radical left, and women’s and democratic rights organisations, drew attention to the foundational, reiterative, extraordinary, routine and structural violence which flowed into people’s lives along the axes of caste, religion, language and ethnicity. They situated the gang rape within a seamless world of normalised violence that stretched across the country: in the states in north-east India, Kashmir, Chhattisgarh, Jharkhand and Orissa, for example, where regimes of impunity operated under the impact of extraordinary laws, in the wars unleashed by the state against its own citizens, and on people protesting peacefully against dispossession of their land and resources. Indeed, if in the honour/izzat strand the state allied tactically with the order of the family helping it to preserve its honour and reputation by bringing the family under its direct disciplinary control, the azadi/liberation strand showed that the alliance was fraught with violence, which operated as a mode of legitimation of state practices of rule. The power of the state recreated, reproduced and reconstituted itself through sexual, caste and communal violence. These aspects of foundational and reiterative violence made themselves manifest at diverse sites and were experienced in the lives of ordinary people: the labouring poor, the Dalit/Muslim woman and those who dissented from the order of the family, the community and the state.
These aspects of violence, sutured into the lives of people across the country, more aggravated and accentuated in some parts, and normalised into social structures in others, were etched on the posters, in the slogans and the songs of azadi/liberation which peppered sections of the protests. The posters of the left-wing students groups from JNU and Delhi University framed the demand of azadi, which subsequently resounded in the chants in the demonstrations on 31 December. The chants of azadi were not weighed down by distress but rejuvenated by a resolute celebration of solidarity, marked by meetings, walks and telling of tales of past resistance. They resounded in particular in the ‘Take Back the Night’ walk from Anupam PVR Complex to the road outside Select City Walk in Saket, New Delhi on the night of 31 December 2012 and into the early hours of 2013, demanding freedom from fear, from patriarchy, from misogyny and a coercive state.
Perhaps for the first time in the living memories of a substantial segment of Delhi’s residents, the city of strangers seemed to have found a cause to rally around and invoke a camaraderie, which so far was reserved for the Mumbaikars to refer to their resilience. For the city of Delhi, that more often than not turns onto and against itself, is segregated into pockets of power, privilege and deprivation, and has been referred to as bedil dilli or a city without a heart, those were extraordinary days of familiarity.
Writing in Kafila.org (an online progressive media source), Shudhbrata Sengupta, based at the Centre for the Studies of Developing Societies in Delhi, referred to the relationship which had sprung up among the residents of Delhi, marking as it were a transition from the ‘mass society’ of consuming individuals of which Arendt was so critical, to a vocal collectivity, bonding together around a shared feeling of having been wronged. Sengupta addresses the ‘young women and men of Delhi’, using the genre of letter-writing, reflecting the need to renew and sustain the new-found familiarity:
I am writing to you again because I have been listening to you. This is a strange time, when everybody is talking, and everybody is listening, and the unknown citizen, who could have been any one of you, has transformed us all. I was with you last night, from five thirty in the evening to around nine at night, while we walked together …You were angry and happy and sad and determined at the same time. Several times in our walk together, punctuating the steady, rising chant of ‘Hum Kya Chahtey, Azaadi’ you also said ‘Inquilabo, Inquilabo, Iquilabo, Zindabad’. I have heard the words Inquilab and Zindabad said separately, and together, many times in my life. But rarely with the passion and the affection, even the love and longing with which you hyphenated them together last night … And when you said ‘Inquilabo’ rounding off the end of the word with that vowel sound, as if revolution were the affectionate nick-name of a young woman, like Gulabo is for Gulab (like Rosie is for Rosa) I could not help thinking that here was a young woman called Inquilab/Revolution and her sisters, or friends, or lovers were calling her out to play. (Sengupta 2012)
The heady chant of azadi seemed to resonate with earlier historical moments of dissent, and the contemporary moment, capturing in itself the spirit of simultaneity, of the dissenting Indian from Kashmir though Chhattisgarh against gendered violence and state impunity. It also reverberated elsewhere in songs of protest which wove the Delhi rape into their own much too familiar seamless world of violence.
The State as Constitutive Site of Contestation
The vociferous demands for institutional intervention led to the setting up of the Justice Verma committee. Its recommendations were received with approval by women’s organisations, democratic rights groups and civil society organisations, and lauded as the Indian Women’s Bill of Rights. The Criminal Law (Amendment) Ordinance 2013 which was subsequently promulgated and the law which replaced the Ordinance were, however, seen as a betrayal of the expectations raised by the ‘Verma Manifesto’, as one feminist scholar called it (Baxi 2013a). Another spate of protests followed but with dwindling intensity, as the debates around the trial against the six accused, one of whom died in custody, and another as a juvenile was not expected to face serious punishment, dominated the story of the Delhi rape case. On 13 September 2013, after a nine-month-long trial, the trial court found all four adult accused guilty and handed down the death penalty to them. While sentencing them, the court concluded that it could not turn a blind eye to the rising cases of sexual assault against women, and remain indifferent to the collective consciousness of the society. Hoping that the sentence would send a message that society will not tolerate such crimes, the court averred that the crime satisfied ‘the rarest of rare case’ criterion set down in by the Supreme Court as a guideline for death sentence, justifying thereby the handing down of the severest punishment provided for under the provisions of law pertaining to rape and sexual assault. Earlier, a juvenile court had sent the underage accused, who was a few months short of turning 18 when he committed the crime, to a reform home for three years.
Let me now turn our attention to the manner in which law, in this case the Criminal Law (Amendment) Ordinance and Act, became a terrain of contest between the feminists and the state. In her book The Life of the Law, Laura Nader refers to law as an anthropological subject, and points at the possibility of a range or connections of issues while ‘studying law in context’ (Nader 2002, 6). On the other hand, Alain Supiot refers to the anthropological function of law, by which he means the function of transformation of ‘each of us into a homo juridicus’, of instituting ‘us as rational beings’ (Supiot 2007, ix). This transformation, Supiot argues, is of particular significance if one bears in mind one of the lessons from the experience of totalitarianism, wherein the first essential step ‘on the road of total domination was to kill the juridical person’ (Supiot 2007, x; quoting Hannah Arendt). This function of law—of producing juridical persons—may well be seen, following Timothy Mitchell, as the ‘structural effect’ of the state (1991, 94). Mitchell speaks of the state as the ‘effect’ of practices that create the paramount structural effect of the modern nation state. The state in this sense is not merely an ensemble of institutional structures and decision-making processes, which constitute ‘the innards of the state’ (Migdal 2001, 231-232), but the powerful ‘metaphysical effect of practices that make such a structure appear to exist’ (Mitchell 1991, 94). In his article titled ‘Chandra’s Death’, Ranajit Guha (1987) describes law as the state’s ‘emissary’. The metaphor of the emissary is borne out in the manner in which the state announces its presence to an impoverished community of landless peasants in nineteenth-century rural Bengal by transforming a set of transactions within a kinship network into a criminal act. The logic of legal intervention turned statements by Chandra’s mother and sister of their attempts at dealing with a family crisis into ekrars or confessions admitting guilt. The ekrars propel Chandra’s mother and sister into a matrix of abstract legality, turning them into legal subjects by imputing intention and culpability, wresting from the community its monopoly over exercising disciplinary control over its members (Guha 1987, 140-141). Guha’s meticulous reading into the events leading to Chandra’s death, speaks of both the restorative practices in a community and, on the other hand, the ways in which communities, perpetrate, absorb and make crime invisible, creating an impervious wall around them.
In the law pertaining to rape and sexual violence, the complex articulations between the state and the community are borne out; with law sometimes reflecting the authority of the state and through it the order of patriarchy and, at other times, becoming an autonomous site of contest between the state and the civil society. The articulation of the legal subject as the victim of sexual violence for a long time was, and to some extent still continues to be, embedded in and marked to conform to the community codes of honour. If the Justice Verma Committee report changed the dominant frameworks of reference by emphasising the processes through which rape was institutionalised in society, the amendment in the rape law was inadequate in capturing the radical shift articulated in the report and remained tethered to some of the earlier premises of addressing sexual violence. Hitherto, rape was inscribed in the Indian Penal Code (IPC) as an extreme form of sexual violence, with non-consensual penovaginal penetration as the only serious sexual offence (Sections 375 and 376 of the IPC) with other offences listed as lesser crimes of ‘outraging the modesty of a women’ (Section 354 of the IPC). It excluded marital rape from the ambit of sexual violence affirming and reinforcing thereby (heterosexual) marriage as a consensual space of bourgeois privacy, and subsumed all other non-consensual penetrative acts as carnal intercourse against the order of nature, which was used to criminalise homosexuality.
The Verma Committee mapped the contours of rape differently. It drew attention to the culture of rape, which permeated society, by making it acceptable in some sites (as in marriage), and perpetuating it in others through silences and facilitation by the dominant social structures and institutions of the state. Describing the report as ‘a manifesto for radical transformation’ for linking up ‘structures of power and domination with the everyday mechanisms to silence testimonies against sexual violence’, Baxi (2013a) describes it as speaking directly to the experience of young people on the streets of Delhi. Not only did the report identify various forms of sexual offences which young women faced including stalking, voyeurism, forced stripping and acid attack, but also it stressed the importance of identifying and defining each of them under Section 324 of the IPC as distinct forms of sexual assault, to replace and reject the ‘colonial humiliating and trivializing definition which described everything short of penile penetration of the vagina as outraging the modesty of a woman’ (Baxi 2013a).
The report, moreover, was the most strident statement on the contexts of power and patriarchy in which rape and sexual violence were perpetrated. Defining rape within this framework, the report affirmed that the perpetrators of rape were invariably men, whereas the victims could be gender-plural (any person irrespective of gender or sexual orientation; Baxi 2013a; also see Mehra 2013a, 2013b). Perhaps for the first time there was an emphatic indictment of the masculinist regime of impunity which flourished under security laws like the Armed Forces (Special Powers) Act (AFSPA) 1958, through the recommendation that the immunity enjoyed by the armed personnel in those areas where the AFSPA was in force, should be withdrawn and the army officers guilty of crimes of sexual violence should be tried under the ordinary criminal law. The Criminal Law (Amendment) Ordinance (2013) and the Criminal Law Amendment Act (2013), which were enacted by the Indian Parliament following the submission of the report, watered down the recommendations, incorporating them only selectively in the law. Thus even as it accepted the gradation of various forms of sexual assault and their distinction from rape, it retained the definition of sexual assault in gender neutral terms, and also rejected the recommendations of the committee pertaining to recognition and punishment of marital rape in law, retaining thereby the misogyny in legal principles (see Baxi 2013b).
The domain of law has historically constituted a site of contest between the feminists and the Indian state. Feminist writings have consistently interrogated the relationship of women with law, in particular the way in which law has produced gendered subjects, often reproducing and reinforcing codes of honour of the family, the community and the nation. Feminists have, for example, chronicled meticulously this relationship in the context of partition, and the recovery of abducted women, the legal regime which facilitated it and notions of state sovereignty and national dignity which stressed the indispensability of the recovery operation for this assertion (Das 1995; Butalia 1998, 2006; Roy 2010). In the transactions between the state and women in India, as Rajeswari Sunder Rajan (2003, 24-25) has termed it, the concept of equality in the constitution has provided the space where the state and women have confronted each other as legitimate adversaries. This adversarial relationship is, however, imbued with a paradox in so far as the state is both the target of trenchant feminist critique and is simultaneously the source of change, to which demands may be legitimately directed. Indeed, while feminists have been wary of giving the state overbearing powers to ‘reform’ and ‘change’ and, therefore, have placed faith in an oppositional/adversarial politics, they have also collaborated with the state, to push for and occupy spaces which emerge as an outcome of state policies. Yet, as Sunder Rajan has pointed out, ‘if one were to view the relationship between ‘women’ and the ‘state’ as intimate and mutually defining, this is not to imply that the two agents are fully performed entities entering into a formal relationship of confrontation of dialogue’ (2003, 24). Rather, the state and women are constituted in relation with each other. The confrontation between the state and the women’s movement in the context of the Delhi gang rape case shows how, amidst an overwhelming mass upsurge directing its anger on the state, gender was articulated within a framework of ‘victimhood’ invoking the ‘logic of masculinist protection’ to demand strong action from the state. The women’s movement, while part of the larger upsurge, sustained a feminist location, building on the gains from earlier moments of confrontation with the state.
Perhaps the most significant of such moments was the Mathura rape case and the judgement by the Indian Supreme Court in 1979, which witnessed a national campaign against rape, and questioned ‘the shame and honour regulating speech against rape’ in public spaces (Baxi 2014, 2). In this case, involving the rape of a young tribal woman by two policemen in Maharashtra, the sessions court, and later the Supreme Court, took the position that a case of rape could not be established since the woman, Mathura, was habituated to sexual intercourse and had most likely consented to it. Protests against the Mathura judgement involved women’s organisations proposing alternative draft legislation to confront the patriarchal assumptions in the rape law (Menon 2014). A public letter written by four law Professors (Upendra Baxi, Lotika Sarkar, Vasudha Dhagamwar and Raghunath Kelkar), called the ‘Mathura Open Letter’, questioned the manner in which the Supreme Court had interpreted ‘consent’ and failed thereby in its constitutional duty of protecting the dignity of Mathura (Baxi 2014, 17). The rape law was subsequently amended in 1983—the first time in independent India since it was enacted in 1860 by the colonial state—to make consent, and by implication the woman’s past, irrelevant for establishing the veracity of the woman’s claim of having been raped.
The gains made by the women’s movement in the Mathura case in the 1970s coincided with the emergence of a feminist critique of the post-colonial state, rejecting the faith that the women’s movement had placed in the liberal values of the constitution and the belief that they would percolate into state institutions to usher in gender equality. The Report on the Status of Women in India, popularly known as the ‘Towards Equality Report’ (1974), which came around the same time, was a firm indictment of the Indian state, for having failed to ensure the constitutional guarantees to women. The Mathura case, which brought to the fore the contest over the question of consent and the relevance of a woman’s past for the legal affirmation of rape, became perhaps the first signpost in the trajectory towards the contemporary moment. On the way, in the 1990s, the Bhanwari Devi rape case unfolded along a dual course: one where Bhanwari Devi, a low-caste woman employed as a voluntary worker (a sathin) in the government’s community development programme in the state of Rajasthan, was denied personal recompense because the judges felt that a low-caste woman could not be raped by upper-caste (Gurjar) men; and another where her gender became a peg on which the Vishakha Judgement delivered by the Supreme Court, laid down strict guidelines for the protection of women against sexual harassment at the workplace.
Indeed, women’s organisations have drawn attention consistently to the dense networks of power which make sexual violence the most visible form in which masculinist impunity is made manifest. The rape and killing of Dalit women, in more widely reported cases like Khairlanji, and elsewhere has an all too familiar story where the perpetrators, in complicity with the police, are able to avoid charges under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), which prescribes different procedures and enhanced punishment in cases of violence against the Dalit community. Sexual violence that obtains in Jammu and Kashmir, the states in north-eastern India, and across eastern and central India in states like Jharkhand and Chhattisgarh, breeds under extraordinary laws like the AFSPA, and other detention and anti-terrorism laws. It is not surprising that along with ‘disappearances’, and ‘extra-judicial executions’, rape is the most common allegation that is made against the armed forces in north-eastern India and Jammu and Kashmir in the context of military operations in these regions. Rape of Muslim women in the democidal violence in Gujarat in 2002 was reported widely by civil rights groups and women’s organisations, which asked for a strong law for protection against communal violence.
The extraordinary sites of sexual violence in the context of partition and the state of exception which obtains in parts of India have largely provided the signposts for a feminist critique of the nation state in India. Yet, it was the violence of normal times, emerging out of the entrenched caste hierarchies and communal divides, and the complicity of the state apparatus in the democidal rape cultures which sustained these hierarchies, which were critical in the moblisation by feminists to push for legal reforms. The rapes of Mathura and Bhanwari Devi became the ‘events’ which opened up the possibilities of a feminist understanding of sexual violence and its incorporation in the penal code. The Delhi gang rape, however, was distinctive in so far as it was the sexual violence experienced by a young college student that generated an extraordinary regrouping of energies to make it a critical event. The Verma Committee report captured the essence of this criticality, pulling together and interlacing the wide spectrum of spaces in which women experienced sexual violence. It resonated in particular the feminist framing of violence against women, its conscious rejection of the death penalty for the perpetrators of rape, and the assertion that the Delhi gang rape must be treated as one important node in the web of a culture of rape which gripped society. The focus on the gang rape was tactical for long-term gains in legal reforms, but at the same time, the larger strategy of the movement has been to focus attention on a range of other sites, not confined to the state, through which transformative change could be brought about.