Death, Dishonour and the Law
(Or, Kanoon ke panje se kaise nikal paoge?)
The Law and affect
At some point in the first decades of the 20th century, a foremother of mine, Lakshmi Amma, stood before the Indian judge hearing her case in a court in Malabar district. This is not a properly archived incident from a properly dusty file in a proper archive; its status as a fact in history is doubtful. It's a story my mother tells, and was told to her by her grandmother and aunts, it is part of family lore. So it is slight in verifiable detail, puffed up with all sorts of messy stuff - pride, and sadness, and nostalgia.
That long moment was the one in late-19th to early 20th century, in which legislation and its after-shocks were reshaping Nayar matriliny into more appropriate and modern patrilineal forms of property ownership and kinship. Litigation was rife in the community, and Lakshmi Amma had trudged to court several times already in a case she had initiated to claim her share of the matrilineal property - now legally divided between sons and daughters, but sought to be appropriated whole-sale by her brother. As she stood before the judge at yet another hearing, weary but upright, he was moved to ask her, in Malayalam – Lakshmi amme, aaraanu ningalude pinbalam? Who supports your back, Lakshmi Amma, who gives you the strength to do this?
In those days, Nayar women wore an undergarment like a loin cloth beneath their mundus, called a taaru.
Aaraanu ningalude pinbalam? asked the judge. Retorted Lakshmi Amma, slapping her haunches defiantly, Ee taaraanente pinbalam. This taaru is the support at my back.
She did get her (newly reduced) legal share, but Nayar matriliny was gradually delegitimized and its last vestiges eroded with the Hindu Succession Act of 1956. Historian Pravina Kodoth has pointed out that this dispossession of women was produced within a narrative of Historical Progress and the newly emerging discourse of individual rights. That is, the end of Nayar women's rights to property under matriliny was conducted impeccably in the language of rights - pitting the rights of the "wife" against those of the "sister", the Subject of course, being assumed to be the Nayar male.
One of the key components of the constellation of features we term modernity, is the modern bureaucratic state and its increasing centrality in the social order. James Scott posits legibility as a central problem of modern statecraft. The premodern state was partially blind in this respect, he says, it lacked anything like a detailed map of its terrain and its people, it lacked a measure that would allow it to translate what it knew into a common standard. But gradually, "processes as disparate as the creation of permanent last names, standardization of weights and measures, the invention of freehold tenure, the standardization of language…the design of cities" all come together to enable the state to "see" its terrain and its people.
And of course, as a complex, heterogeneous social field – consisting not just of objects and people, but of emotions and affects - was clarified and rendered legible, everything put in its proper place - the optic that enabled the fixing of meaning on to a standard grid, was the Law. Thus, I would argue, from the very moment of its emergence to the present day, the Law and courtrooms have been precisely about managing, not banishing, affect and emotions. Judgements, not to mention court proceedings, on practically any matter are voluptuously ripe with emotive terms, sentimentally pronounce on love, honour and hatred, and final decisions are taken while endorsing legitimate against illegitimate emotional claims. All of this is carried out on the cited authority of certain kinds of self-defined rational discourses such as Science and Economics, but the Law itself has never been outside of affect. (Nor have Science and Economics, but that is another story.)
In the next section I will explore the ways in which flesh-and-blood is variously produced through different norms of regulation including the Law.
The State and the Family as orders of regulation
Clearly bounded familial spaces are clawed out from dense thickets of human and non-human inter-relationships by different orders of regulation including the Law - defining, purifying, rendering, clarifying; producing, through their practices, the very flesh-and-blood of the family. We know that the replication of the family is founded on strict laws of endogamy as well as exogamy in marriage: the Other is forbidden to one's desire, but so is the Self. The desiring gaze must not stray outside one's caste or religious community; but nor may it stray indiscriminately inside what your community defines as kin – not inside your gotra or got, not towards first cousins, or inter-generationally; but for North Indian Muslims and some South Indian Hindu communities, marriages between specific kinds of first cousins are the first matches to be considered and Tamil Brahmins endorse marriage between maternal uncle and niece; while universally, it is mandated that your desire may not flow towards one born from the same body.
Prem Chowdhary in her critique of customary rules regulating marriage in Haryana, argues that they are opposed to "the law of the land", for under the Hindu Marriage Act of 1955, she holds that there are very few legal restrictions on the choice of marriage partner, as both sagotra and inter-caste marriages are permitted under it, while customary marriage rules, as we saw above, follow a variety of practices regarding prohibited relationships. This reading of the HMA is puzzling though, because in fact it outlines very carefully a series of prohibited relationships termed sapinda in which "blood" relations are defined, and when it "saves custom", it actually opens up the possibility of more kinds of marriages permitted under customary rules. The whole point of any marriage rule or law is of course, to delimit the kinds of people who may not marry each other. The definition of "blood" is the key project of both laws like the HMA and the Special Marriage Act as well as of customary rules, except that modern laws follow what could be termed as a modern scientific view of blood relations as opposed to customary rules.
It seems to me that the prohibitions in the HMA and SMA reveal the imperatives of the state and governmentality - eugenics and population control - while the prohibitions in customary rules reveal the imperatives of the family – regulating descent and control over property. The HMA and the SMA both prohibit sapinda marriages, that is, between people related through mother or father for several generations (including through adoption or through an "illegitimate" union), as well as between spouses of such people, though both "save custom". It defines "full blood" and "half blood" – two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives; half-blood includes "uterine blood", that is, two persons descended from a common female ancestor by different husbands.
Neither party may be an "idiot" or a "lunatic" at the time of marriage, and there are age limits to marriage. The SMA in addition bars from marriage, people suffering from epilepsy and those who, "though capable of giving a valid consent, have been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children."
Different customary rules define "blood" in a variety of ways, including through gotra or got, which is descent from a common patrilineal ancestor, and among Haryana jats, through bhaichara or brotherhood, which prohibits marriage between people of the same village and with villages that share a border with the natal village, all of whom are understood to belong to the same "family." The khap panchayats of Haryana have of late been demanding that the HMA be amended to reflect these prohibitions on sagotra and bhaichara marraiges, which would in effect prevent young people from ever selecting their own marriage partners, for they would perforce be in a sibling relationship with every young person from their village and from adjoining villages; in short, with anybody they are likely to meet by the time they are 18 to 21 years of age.
From the point of view of descent and property, it makes sense for example, under Nayar matriliny, for children of brother and sister to marry, but not under Jat patriliny. Thus, within the vast network of heterogeneous practices of hundreds of communities termed as "Hindu", each community has evolved its own regulations on who can marry and procreate and who can inherit – a messy fabric the pattern of which the state is hard put to read.
This is why I think the personal laws on succession and property, like the Hindu Succession Act, represent a point of conflict between the imperatives of the state and of the family. The state requires legibility in order to mobilize resources towards capitalist industrialization, and towards this end, the institution of individual rights to property is crucial. All forms of property must become completely alienable and transparent to the state – this development is essential for capitalist transformation of the economy. The family on the other hand, has its own imperatives of controlling name, descent and passing on of property, a project disrupted by individual property rights. In this light, we must view the gradual granting of property rights to women under Hindu law as more than a simple triumph of feminist demands – it also represents the establishment of a bourgeois regime of property for the Hindu community at least in principle, a not inconsiderable achievement for the state in the current climate of widespread resistance to land acquisition.
In the context of tribal societies, Nandita Haksar has pointed out the problems with feminist initiatives to press for property rights for tribal women, because she sees this as being predicated on "classical human rights arguments" which are incapable of comprehending the complex practices which make up tribal jurisprudence. She urges the need for a struggle within tribal communities to evolve new customs which are more egalitarian, rather than using the constitution to override tribal practices.
The point I wish to make of course - or to remind ourselves of - is that marriage as such is meant to control and regulate sexuality and property relations, whether through the Law or through customary rules, and neither is more "progressive" than the other in itself. They are simply two different orders of regulation.
The striking parallel between the family and state orders of regulation is made startlingly evident in Pratiksha Baxi's insistence that the term "honour killings" be replaced with "custodial deaths", since the young people killed in such cases are in the custody, much like prisoners, of their families. Or when Lawrence Liang wonders if punishment for sedition is a form of restitution of conjugal rights of the state. As he points out, the restitution of conjugal rights basically consists of the right of a spouse to demand that his or her spouse cohabit with him or her after s/he has 'withdrawn from his society'. Sedition meanwhile, is a crime of passion too, that of disaffection from the nation; the offence, that of withdrawal of love for your nation, and you must be forced to co-habit with it or be punished.
Obligatory love and duty, punishment for refusal to live together – the parallels between marriage and citizenship hit you in the face. Pretty literally.
In this section I will briefly reflect on a phenomenon that has come to be termed as "honour killings", that is, the violence including death, that has been visited on couples in inappropriate marriages by the traditional multi-clan panchayats of the Jat community in Haryana, the khap panchayats. These distinguish themselves from the sarkari panchayats instituted under the state's umbrella, and claim greater legitimacy with the community, which may well be true. As mentioned earlier, the khap panchayats have been demanding amendments to the HMA to ban sagotra and bhaichara marriages, but interestingly, scholars of the area like Prem Chowdhry and activists such as Jagmati Sangwan, (herself a Jat and based in Haryana) have pointed out that most of the violence meted out by khap panchayats have been on inter-caste marriages which constituted 72% of 326 cases of violence studied by an NCW report (conducted by NGO Shakti Vahini); and not on sagotra or bhaichara marriages. They argue therefore, quite correctly, that the aim of such an amendment is to control sexuality and property ownership and to prevent inter-caste marriage rather than to protect ancient notions of blood and bhaichara. By foregrounding sagotra and bhaichara marriage as the problem, the khap panchayats seek to legitimize their claim by making an analogy with the incest that is prohibited under the HMA.
At this point I should clarify my difference with the kind of critique of Chowdhry and Sangwan and of feminists in general, made by Madhu Kishwar who supports the demand of the khap panchayats for amendments to the HMA. Kishwar argues that this demand is no different from the other prohibitions in the HMA, since the HMA in any case "saves custom". Currently though, as we have seen, the saving of custom enables more kinds of marriages to take place, beyond the sapinda prohibitions, while what the khap panchayats want is to increase the field of prohibitions.
In addition, Kishwar claims that it is a myth propagated by the elite media contemptuous of non-English speaking villagers, that violence is routinely meted out by khap panchayats. She claims that violence is rarely used, and that measures like social boycott which she terms "non-violent", are more common. Neither claim is true, as there is sufficient evidence produced by local activists to show that physical violence including murder is carried out in a large number of cases, and I find her characterization of social boycott as 'non-violent' deeply problematic, for such boycotts are enforced with violence, and in themselves have deep material implications, as it means the couple and their families must leave their properties, their homes, their means of livelihood, and go away to start their lives afresh with no resources whatever.
While I agree with her that a ban on khap panchayats is uncalled for, this demand has only been made by some individuals and is not a demand of the women's movement groups. The crucial problem is that Kishwar fails to acknowledge the deeply patriarchal character of the khap panchayats, the challenge to whose authority is after all, first of all arising from young people within these communities and not, as Kishwar claims, from urban, English-educated elites with nothing but contempt for villagers. Kishwar also cites a survey carried out by HT which showed that 81 per cent of the respondents in Haryana did not support sagotra marriages. But surely there is no need for the state to ban a practice if it already has such wide social disapproval. The state's intervention is required to end or ban practices that are anti-democratic but have wide social approval, such as untouchability. It is interesting that when it comes to Sati and dowry, Kishwar is against state intervention, but she seeks active state intervention to buttress khap panchayat diktats!
On the other hand, Prem Chowdhry pretty much argues for customary rules to be overridden by the Hindu Marriage Act, which she sees as more progressive in the context of the violence of the khap panchayats of Haryana on prohibited marriages. I suggest we need to move towards an understanding that takes on board a critique of the violence meted out by khap panchayats while not falling into an endorsement of the HMA or "the law of the land" on marriage. The glib, derivative and utterly misleading phrase "honour killings" propagated by the media conceals the textured nature of community-state relationships and the historical causes for certain kinds of conflicts emerging at particular points in time. For example, Prem's work shows that there are very specific local reasons for a long established marriage to be suddenly declared void because it is sagotra. It is important also to remember that such marriages are very often arranged, not self-selected by the couple concerned. In one case she studied, for instance, the reasons for the sudden declaration of a 3 year old marriage as sagotra were to be found in rivalry over the gram panchayat elections that year.
Thus, while the violence of khap panchayats – from enforced social boycott to killings – must be (and is) resisted by the affected people as well as by political movements, it would be misleading to pose the HMA as the preferred alternative to customary rules, for the Hindu Marriage and Succession Acts are forms of regulation too, and not necessarily liberating, as my foremother Lakshmi Amma was made to learn.
Taking care of one's flesh-and-blood
The definition of "blood" is simultaneously the outlining of an ethical horizon of responsibility and care – the delineation of the specific people for whose welfare and happiness and good behaviour one is responsible. Changing definitions of flesh-and-blood change sentiments of responsibility and love. Such changes are of course not legislated at one moment, once and for all, by the law. Different kinds of discourses flow together to delegitimize old ways and form new ones.
Another family story. My maternal uncle, at the age of 8 or 9, in the early 1940's, sat studying his English primer, rocking back and forth, muttering loudly, "family means wife and children, family means wife and children". His grandmother hearing him was appalled – "Is this what they're teaching children in school now? But family means sisters and their children…no wonder tharavadus are collapsing one by one…" Bleakly, she faced a world in which brothers would abandon their families, their sisters, their nieces and nephews; a world in which a woman had nothing unless she was a wife, a world in which Lakshmi Amma would have nothing but her thaaru as her pinbalam.
The opposite notion of family is seen in arguably, the opposite part of the world – Haryana. One of Prem Chowdhry's interviewees, while explaining that the honour of the sister and mother is to be given precedence over and rated higher than that of the wife, cited the Ramayana in a somewhat unorthodox way – he maintained that the dishonour meted out by Ram to Ravan was greater than that Ravan dealt to Ram. Ram had dishonoured Ravan's sister Shurpanakha, while Ravan had only abducted Ram's wife. This ranking of dishonour of course, means but greater control over the sister, not her greater status. Prem points out that the most brutal retribution is reserved for the sexual straying of an unmarried girl, while a married woman's liaisons may be dealt with inside the family and not become a matter of honour for the entire village.
It is instructive to look at the debates in Parliament at the time of the passing of the Hindu Code Bills that sought to codify the heterogeneous practices of communities termed "Hindu". Invariably, understandings of family responsibility that differed from the upper-caste North Indian norm were either not considered at all or rejected as not being truly Hindu and Indian. Consider the following exchange in parliament during the debate on the Hindu Succession Act:
Mukut Behari Lal argued against property rights for daughters, asserting that no Hindu parent would want to inherit a daughter's property in the event of her death. To this, L. Krishnaswami Bharathi asked, "Why not, why not, what's the harm?
An MP called Bhargava responded sarcastically to Bharati – Perhaps my honourable friend comes not from India but from some outside country.
Bharathi said 'I come from south of India'
Bhargava – In India no father or mother will ever think of receiving anything from the daughter.
Bharathi – That may be so in the Punjab.
Bhargava – It is so in the whole of northern India…Therefore [what you say] is based on anti-Hindu ideals (Kishwar 1994: 2155)
The point is that the "reformed" Hindu code not only was very far from offering equal rights to women, it in fact took away many existing, more liberal customary provisions available to women of different communities and castes. It did so by insisting on treating North Indian upper-caste practices as the norm for definition of blood and responsibility.
Scientific definitions of flesh-and-blood
What about modern scientific, unambiguous definitions of blood, such as those on which the HMA is based? How ambiguous these really are emerges only when one examines another terrain, that of surrogate pregnancy. The term surrogacy refers to a woman carrying to term in her uterus, an embryo to which she will give birth, after which the child will be brought up by someone else. One would imagine that once science has intervened in the 'natural' and 'biological' process of human reproduction, the entire process would fall completely out of the net of the 'natural'. On the contrary. In the context of the rapidly growing scientific-industrial complex of commercial surrogacy, enormous care is taken to scientifically outline the extent of the biological relationship the gestational mother has to the embryo she carries in her womb, vis-à-vis the commissioning social parents. Revealingly, we find two different kinds of arguments defining "biological relationships", both claiming the authority of science, addressing two different kinds of targets – a) couples who are considering the use of a gestational surrogate to give them a baby and b) women who cannot produce eggs considering gestational surrogacy themselves, through an embryo fertilized out of another woman's egg.
The first target has to be reassured that even though another woman is bearing the embryo created out of their sperm and egg, the child is "biologically" not hers, but theirs.
Here, statements like "the intended mother's eggs and the intended father's sperm, are mixed in a laboratory" and "the surrogate mother is simply an oven" are used to deny the natural role of the surrogate, and other phrases like "actual biological parents" to whom the baby will be "given back", are used to emphasize the 'natural ownership' of the embryo by the contracting parents.
Material addressing the second kind of target, women carrying a donor egg child for themselves, are about reassuring them, as a drug company booklet about egg donation puts it: "Women who give birth to donor egg babies are the biological moms…As the fetus grows, every cell in the developing body is built out of the pregnant mother's body...The fetus uses her sugars, calcium, nitrates, and fluids, and she will replace them…[T]he baby herself, grows from the recipient's body. That is why she is the child's biological mother. That is why this child is her biological child."
Here we find an insistence that genetic factors are merely the 'blueprint', the actual work of making the baby has yet to be done inside the womb.
It is evident that scientific accounts of what is natural, what constitutes blood relationships and so on, are produced entirely within prevalent social norms. In addition what these accounts reveal very clearly, is that lofty Science does not in fact occupy a space sealed away from something called Culture, and it never has. The authority of Science operates, not to erase, but to reconstitute the boundaries of 'the natural'. The nature/culture divide that is the founding myth of modern thinking thus remains un-assailed, with new notions of 'natural' and 'biological' being put in place by Science, the sole discourse with the monopoly on defining the 'natural'.
The scientific definitions of blood and notions of eugenics that underlie the state's law thus, are no more objective, stable or neutral than community definitions of flesh-and-blood. Counterposing the two modes – the customary and the legal – in terms of less and more progressive then, is utterly misleading.
Unless we – feminists - abandon "blood" as the principle that legitimates love and responsibility, we are trapped within one or the other form of regulation of sex and desire and property. Is it possible to conceive of forms of justice that can escape – or evade, or duck? - the clutches of the family as defined by Law as well as that defined by Community?
Seeking the outside
Of course we continue, whether we like it or not, to be situated in the terrain defined by the state, and we are compelled to respond to the various ways in which our subjectivities and our life as "citizens" are defined by it. So I do not suggest that we abdicate the state, for the state will not abdicate us. However, our political practice cannot remain limited to the terms set by this framework – is the goal of subverting, escaping, exceeding this framework on our agenda at all?
The difference between "transgressive" struggles of the older kind and the coming anarchistic struggles, says Reiner Schurrman, lies in their respective targets: "for the transgressive subject, - any law, for the anarchistic subject - the law of social totalization." (1986: 307). Thus, "The transgressive subject still fetishizes the law in daring what is forbidden" (1986: 308); but the anarchistic subject "constitutes itself in micro-interventions aimed at resurgent patterns of subjection;…intervening against ever new instances of mastery (which are not instances of any one Great Oppressor), starting over and over again, displacing co-ordinates of thinking as far as is strategically possible" (1986: 308).
Because the Law is constitutive of subjectivity, but regulatory norms are not exhausted by Law, an anarchist-feminist practice of justice necessarily has to evade the Law, as well as to engage with it, playing off different regulatory regimes one against the other, and seeking an outside to every regulatory regime.
Some anarchist criminologists have argued for replacing state/legal justice with a "fluid, face-to-face justice grounded in emerging human needs". It should be clear that such face-to-face communities are not cultural communities alone but can be politically, professionally and contingently formed communities – RWA's, university communities, bastis. It is such communities that I have in mind as we develop here a feminist notion of refusal of binary choices and insistence on an outside, via a brief excursion into the issue of sexual harassment.
Sexual harassment is an instance of feminist politics gradually evolving a "fluid face-to-face" practice of justice, now threatened (in my view) by the draft national law on sexual harassment. In the twelve years since these guidelines, several universities have come up with carefully formulated sexual harassment codes. These have tended to arise from existing democratic politics in the university community. At least in three universities I am familiar with (DU, JNU and NEHU) the codes that were put in place are reasonably flexible and take into account local specificities and requirements. A relative flexibility is offered by rules and regulations (as opposed to Law) produced by specific "face-to-face communities" of this sort. The definition of sexual harassment and of evidence, and the constitution of committees are fine-tuned to the academic context; punishments carefully graded rather than vindictively punitive, since making sexual harassment visible is also meant to produce new norms of acceptable behaviour; and the implementing authority is the University, which is susceptible to pressure from its community. The composition of committees reflects and draws upon the university community, while incorporating an "outside" element through nomination, as required by the Vishakha gudelines.
In addition, it has also become clear that the successful carrying through of a complaint from its first being lodged to due punishment being meted out, depends entirely on extra-institutional pressures exerted by political mobilization, for University authorities are notoriously resistant to recognizing sexual harassment as an issue. These pressures include large-scale lobbying at different levels with the administration, publicity in the media, and demonstrations and protests, depending on the degree of resistance from the authorities. This kind of extra-institutional pressure works quite often because the target is an authority composed of members of the community itself, directly recognizable by and in day-to-day communication with the members co-ordinating the movement.
This is not to say that instances of sexual harassment no longer take place in universities that have enacted policies, that all such cases are promptly tackled, or that committees' recommendations are always implemented . The point is that the possibility of justice is greater when a community of this sort works out acceptable norms of behaviour and punishment that are appropriate to it. More importantly, such a self-constituting community is more likely to be active and to be constituting itself anew constantly.
This limited degree of success on some university campuses in naming sexual harassment and dealing with it, is now threatened by the proposed central legislation, most principally because it places sexual harassment within the criminal justice system, with its restrictive definition of evidence and witnesses, and its inability to recognize different forms of sexual harassment in different contexts.
Anything goes! (a salute to Feyerabend)
To conclude tentatively, I suggest that an anarchist feminist practice of justice would
a) arise from face-to-face communities that evolve their one regulations and rules;
b) through political activism ensure that such rules have recognition and weight in the community. Such activism would be premised on internal dissident voices and negotiations;
c) be ready to play off eclectically, various systems of regulation against one another depending on the situation – laws against rules, rules against laws, judicial orders against government, and so on – constantly insisting on an outside to every system. While we may need to engage with existing laws, it would be a mistake to press for new laws to meet our ethical goals.
Panelist: Nivedita Menon, Department of Political Science, University of Delhi
Title: Death, Dishonour and the Law (Or, Kanoon ke panje se kaise nikal paoge?)
Abstract: Clearly bounded familial spaces are clawed out from dense thickets of human and non-human inter-relationships by different orders of regulation including the Law - defining, purifying, rendering, clarifying; producing, through their practices, the very flesh-and-blood of the family. The replication of the family requires laws of endogamy as well as exogamy in marriage to be strictly maintained: not the Other but not the Self, either – neither outside the caste nor inside the gotra. 'Honour' killings stand at the interface of Law with other forms of social regulation of the legitimate family form. Which order of regulation is more just? And can the family form escape regulation?