Towards a nuanced picture of human rights - 3
Duration: 01:10:33; Aspect Ratio: 1.366:1; Hue: 33.083; Saturation: 0.123; Lightness: 0.678; Volume: 0.217; Cuts per Minute: 1.984; Words per Minute: 144.066
Summary: Any analysis of human rights has to be located within the rapid changes being undergone in Indian polity and society today. There is a critical link between the nature and extent of human rights violation and the dramatic transformation being undergone under the aegis of rapid globalisation.
While there is a depth and breadth of activism around human rights issues in the country, there is not always an attempt to see the relationships between the different contexts of human rights violations.
To produce an analytical overview of the nature of human rights issues and activism as well as the kinds of strategies employed by human rights activists, the Alternative Law Forum, Bangalore, felt that it might be useful to paint a bigger picture of what is going on in contemporary India. This was attempted at 'Human Rights priorities in contemporary India: Strategic Responses', a consultation held on December 12 and 13, 2009 at Christ College, Bangalore. It was an attempt to arrive at a more nuanced and critical understanding of the state of human rights.
On day one, Sumathi, Veena Gowda and B. N. Usha spoke on challenges in articulating gender-based rights.
Christ College, Bangalore
Moderator: Welcome to the next session. The session is titled 'Challenges in Articulating Gender Based Rights'. Maybe we should follow the model of the last session since it seemed to work in the sense of time! So I'll give you all ten minutes, and if something is not covered, we'll try and cover it in the question answer session. I'll try to be strict on time. The speakers in the session...there are three presentations, the first one is called 'Rethinking the Sex-Gender Binary: Emerging Challenges' by Sunil Mohan and Sumati, both of whom are human rights activists, who have been involved in Lesbian Gay Bisexual Transsexual (LGBT) rights activism for a long time now. The second presentation is called 'Emerging Challenges in Gender Based Litigation' by Veena Gowda who is an independent advocate from Mumbai. And the final presentation will be 'Communal Conflict and Politics of Gender' by B.N. Usha.
Sumati: This is the first time we are trying to do something called as 'paper' and all that so we're really nervous. Please keep time, and I'll read as much as possible of what we've written and if it stops anywhere within 10 minutes, we can't help it, we're really very sorry, so finally in the question answer session we'll give the conclusion. We don't know, we're very sorry about this. We can't present it as others have done, without reading. Once again, we're sorry. So the time starts...now. <laughter>
Sumati: The present social and citizenship identification system is based on a confused understanding of biological sex and stereotyped associated gender. Many times, Identification cards state options like Gender: Male/Female or Sex: Man/Woman. This is just not a technical problem in understanding or a grammatical mistake. This is an entire system of exclusion and an old system of identifying people in the reproductive paradigm. A male person whose body has a penis or testicles can only produce masculine. Similarly, a female person whose body has vagina, uterus, breasts can also produce, has to be feminine. This whole range of understanding is a familial understanding and not a social understanding. The traits ascribed to both feminity and masculinity are mostly based on conditions that support patriarchal family system. This gets extended to the government or administrative system, judiciary system, constitution and social systems. The people who voluntarily choose their gender or people who by biological difference do not fit in into this description of familial understanding of gender or sex are excluded in all aspects. Fundamental rights, human rights, citizenship rights, entitlements, social, political and cultural acceptance, and acceptance by the family. A whole range of people who identify trans, intersex or the ones who don't identify with either, not only get excluded and denied rights but also face severe discrimination, ridicule and punishment, undergo forcible corrective measures, thrown out of supportive systems and non acceptance driving the person to the extent of suicide.
Siddharth Narrain's piece titled 'Being A Eunuch'
explores the problems faced by the transgender community in India. Their complex social hierarchy and their historical antecedents in the Indian epics make for a fascinating study. Transgenders must face social ostracism, violence and discrimination and often, rejection from their families. The less privileged among them have had take up sex work or begging. Narrain talks about the increasing mobilization in the transgender community and how groups are coming together to fight injustice. Perhaps the most heart-warming example of this is the organization of India's first transgender beauty pageant. Jayeeta Mazumdar discusses the ease and grace of the participants, and the comfort level with their own sexuality, in 'India's First Transgender Beauty Queens'
. The semi finalists had to clear three rounds — the ramp walk, talent showcase round and a Q 'n' A to bag the crown and prize money of Rs 10 lakh.
Sumati: Our government systems, social economic labour political cultural civil systems do not even accept slight difference in the identification process. For example, a male born person who looks slightly different, or probably like a woman but produces certificates as a male is not only questioned about their identity but also many times threatened checks for the correct sex/gender which is confused in their minds. They also suggest corrective measures to fit into the correct boxes. If this is resented, they lose the opportunity. Even for people who might just want to express their gender differently but would not mind accepting the sex binary that is assumed in our society, there is no space because sex and gender blurs in all systems and appearance matters. Though the Constitution recognises individual rights with dignity, it is because of this appearance that people get denied their rights. The present system which somewhat operates based on binary sex but insists on associated traits of gender does not offer any options to people who are outside the defined boxes of gender. To add to this, people who break these defined boxes in different phases are accepted or not accepted based on the extent of loyalty that is shown to the defiant boxes. In this context, if one proposes the idea of an entirely biological sex based identitfication system, it still does not recognise, in a rights based manner, the miniscule population of inter sex people. There are corrective measures everywhere, again based on the reproductive paradigm. The body is made of a different composition, which includes both female and male, is considered defective. So, clearly, the attitude is mainly to 'correct' people and to put them under either male or female, or man or woman.
In 2004, PUCL released a report on the human rights violations against sexual minorities in India in which they have a section on the transgender community (full report available here
). The eunuch or transgender community is at such an extreme end of the rights spectrum in India, that they're practically off it. In a society that recognizes only two genders, they are often rendered invisible. But
with growing information comes greater acceptance. As is reported in 'The Rationing of Rights'
and 'From the Shadows'
, the Tamil Nadu government is setting up a welfare board for transgenders, and has even included an option T (for transgender) in the "Sex" section of the ration cards, giving them recognition and acceptance for the first time.
Sumati: The attitude clearly does not give any choice to people or a right on their own body. This also extends to people having no choice to decide what their identity in social/political cultural economic and civil roles. Of course, the modern technology offers these corrective surgeries, therapies, treatments but one does not recognise the fact that not all people can afford the surgery; not all people choose surgery: some people might just want a change in appearance, some people may just want a change in their gender, and some people cannot opt for surgery due to familial pressures or societal pressures. Or there will not be that space for them to openly opt for surgery.
Sumati: Even in a dream context, if we assume that society has changed its perspective on intersex and hermaphrodites, accepting them ideologically as another type of body and make the identification system as male, female and intersex, this process would then need authentification by the medical establishment. So again it will be based on vaginas, penises, uteruses, testicles, etc etc. And not just this. How much of male or female are you, what is the gene content, the composition of chromosomes and so on; this process might just create further chaos to the question of choice and non inclusion of gender. On the other hand, if we look at the present system, we feel that our Constitution and our Government are lazy to wake up to the fact that we will have to change an entire system of operations and attitude and make spaces that have been historically occupied, conveniently being blind to the existence of people's different expressions of sex and gender. The change would mean a systemic change which recognises the historical operations based on gender.
Sumati: Trans and intersex, women, people who identify as men, people who are different in their bodies and have a choice in their sex and gender, a whole lot of people: it would mean a change in attitudes, language, judiciary process and the Constitution. This would mean bringing difference between sex and gender, resulting in change in standards in social political cultural economic labour civil and the list is inexhaustive. It really means change. Colossal work. While these systems are blind to change conveniently, the offer that is now made is an attempt to recognise based on sympathy. It's not based on rights of the marginalised. It is like, in a bench, if there are 2 people sitting comfortably and for a long time, they feel that the ones not like them who are standing, should probably sit. Suddenly they'll discover sympathy for the 'Others' who are standing, and who are not like them.
Sumati: They will then say, we will give to people like you a little space on this bench, and people like you should adjust within this space. This could also be a patch up effort to shut the noises that are demanding recognition. The attitude is just adjust within the binary system, or creating another space called Other (Eunuch, transgender, etc) to make it More exclusive. So in this process we still maintain the binary system intact. Even this 'other' space is boxed and restricted. While equality that is substantive, that which makes space for everyone, is out of the window. There is no effort to put more benches to provide the rightful space. The women's movement fought out the sympathy based opportunities for substantive rightful equality and space. Though many groups, movements, organisations are arguing for rights based identification systems, there's also divided opinion on this.
Sumati: On the other hand, the issues of trans and intersex has been pushed to the margins where it attracts sympathy or is presented in a manner that mongers sympathy. It was mostly housed in the common public opinion as a "defect" within "them" earlier, and now has moved on to be Nature's defect, and not the individuals. So, again, it is at the convenience of the same hetero-patriarchal society that it does not want to recognise the choice of the individuals. Whosever injustice, people who get marginalised due to gender based operations, sex, gender norms....where the injustice is of not getting rights. So in the next three minutes I have to finish talking about gender and conclusions, and since I don't think I can do that, I'll continue reading a little more.
Sumati: The binary sex-gender system adopted by the goverment, administrative and judiciary process and the rights in the Constitution could be due to lack of consultation of all public, or the general public have historical convenience to not recognise the people who are marginalised based on sex and gender. But the gender diversity is historical and evident. Unfortunately, through this sex-gender binary, the space for gender diversity expression is closed. In this process today, communities marginalise based on sex and gender, stand out as a newly evolving concept and get discriminated, along with historical discrimination and rights violation.
Sumati: Journey of Gender - Gender is fluid, gender is performance, gender is historical, and experience. Gender is social political cultural economic roles. Gender is a complex composition of many things around us. Of carrying out a certain body in a certain fixed, rigid unwritten norms convenient to hetero patriarchal system. It's a transgression, the breaking of boundaries to experience freedom of expression. It is a journey of life, a journey of body to mind, body type to culture of living, a personal journey leading to a political journey. That which is assumed threat to the historical existence of patriarchy, reproductive based living, and the male/man power. In this journey of gender, different people express their gender differently, or even break the norms of rigidity on their needs. The norms of gender based on social morality are rigid and claustrophobic. It forces people into homogenic life of hegemony. While movements did break norms for the rights for women in terms of mobility, right to body, consent, social institutions etc, the same time one can recognise that hetero patriarchy at its convenience loosened the norms of gender around the economic sphere but without separating the sex-gender associated roles and traits.
Sumati: On the contrary, life offers diversity and multiplicity in all spheres, and gender is one of the many expression modes and a major part of a person's individuality. The hetero patriarchal system makes this journey of gender so rigid that this could be one of the reasons for the shift in gender. The concept of trans as a journey from the assigned gender or sex to a comfortable, aspired gender or sex...it is the individual's choice to complete the journey or not. Many times, the individuals might not want to stay, or want to stay in a particular phase which is neither of the two extremes of the two points. The problem is, this journey is visualised or understood as a horizontal, single layered, straight journey from Point 1 to Point 2, being from male to female or vice versa. This is the binary that is fixed by society. If this perspective can be changed to visualise a circle of gender expressions which could be according to the individual's understanding or choice, the fluidity can be retained. Retaining of fluidity makes space for freedom of expression, and also growth of the individual in multi spheres, more comfortably than that of restricted fixtures of possessions becoming life's inevitability. If there's time I will proceed, otherwise I will stop. Thank you.
Veena Gowda: Okay that was a pretty quick presentation, I don't think I will bother with time and whatever, you tell me to stop and I will stop. I will talk about what I intend to. First of all, to situate myself, I'm a practicing women's rights lawyer in the city of Bombay. So to that extent, my experience is from the urban jungle, with the urban nomads, as Usha also talked about. So the experience is of litigating for women's rights in the city of Bombay, Bombay which is said to be - of course, forgetting the riots and everything else - at least a little more progressive city, where the system seems to work, on a comparative basis, better than most other cities. For example, the family quarters are supposed to be much more effective than in Bangalore etc. There are cities like Delhi which have no family quarters itself. But what one has seen over the years is that litigating for women's rights is, to a certain extent, is getting tougher and tougher. I think in the late 80s and early 90s, there still was the fervour and excitement of the women's movement which was to a certain extent seeping into the system. Courts were willing to listen to arguments on victimhood, women being oppressed, women not getting their rights etc. But somewhere, slowly and steadily, I don't know if it's because the women's movement is not as effective, or we've stopped the street protests etc, the whole NGOization of the movement in itself, but to a certain extent what has happened is that the women's movement has also articulated rights within the framework of law; and talked about violence not only in, but primarly in the framework of law. Constructing woman within the law as the victim, who is beaten, who has no rights within the family, within the law...hence the construction is of this extreme victim.
'Making Space for Her in Litigation'
discusses various challenges that are faced by women in the field of litigation, whether as litigants or as lawyers. The article discusses the need to be sensitive to woman's rights when conducting litigation, and talks about how the reforms that have come about as a result of the women's rights movement must also be implemented properly to give better rights to women. Susan Ehrlich and Nancy Junik have written a book, Doing Justice, Doing Gender
in which these aspects are highlighted (though the book is not from an Indian perspective).
Veena Gowda: And the rights come by virtue of being that victim, the claim to that right in law is by virtue of being a victim. But somewhere, where the very woman for whom this law is made, accesses the law. Be it in the nature of 498A, be it in the nature of Domestic Violence Act, be it in the nature of maintenance within matrimonial law, she is suddenly, by the court of law, looked at as an empowered woman. So her process of accessing the law somewhere converts this woman who is using the law meant for her as a victim; in the court of law she looked on by the judges as an empowered woman. So often you hear things like, "who are the women who are accessing law? It is only these upper middle class women. Do actually the poorest of poor women, who are the real victims, access the law?" Thus there is the whole talk about misuse of 498A, misuse of law by women etc. To a certain extent, what this whole construction does, is that it neutralises the locus of the woman, thus somewhere neutralizing her claims. And what it does, is that it constructs this woman bereft of class, religion, caste etc. But when she actually goes to court, these are also identities that emerge, when you look at orders, when you look at judgements of the court.
The Protection of Women from Domestic Violence Act (a copy of which can be found here
) came into effect in 2005. Primarily meant to provide protection to the wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives, the law also extends its protection to women who are sisters, widows or mothers. Domestic violence under the act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic. An interesting Marxist perspective on the law has been given by Srilata Swaminathan in 'On the Protection of Women from Domestic Violence Act'
Section 498A of the Indian Penal Code deals with crimes related to dowry. As per the Section, whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Section 498A of the Indian Penal Code, is a cognizable, non-bailable, and non-compoundable offense. Unfortunately, the law is infamous for being misused by women, since all it takes is the registration of an FIR by the women to get the husband and his family arrested without the possibility of bail, even if the complaint is unsubstantiated or unproved. This website
is amongst a host of others which singlehandedly deals with this misuse of the law by women!
Veena Gowda: I mean for example the issue...someone else mentioned it, I think it was Mihir who mentioned...about love jihad. There are these cases where young women and men are eloping to get married, to live together, whatever it may be. But for example there was a case in Delhi, where there was this Hindu couple, the girl was around 17 years old, she eloped with another boy. Her sisters and parents filed a write of habeus corpus in court, and when the court actually heard the matter, and I think it was for kidnapping and also for that the boy had run away and she is a minor, but the Court actually looked at that situation and said that no, she's above the age of 16, 17, it seems that she has gone by her consent, hence you cannot criminalize the act of that boy. And to a certain extent..they'd gotten married, whatever, and there had been sexual relations...and there was this whole thing about, what is the court doing? Are they legalising marriages of minors, etc? But a similar example, where the boy...which happened in Kerala as well as in Karnataka, was where these Hindu girls eloped or ran away with Muslim boys. Again the parents filed a case of habeus corpus in the Kerala High Court. The girls were produced before the judge, and they told the judge that we do not wish to go back to our parents, we are in love with these boys, and we want to stay with them. And they were not even minors. They were students...they were girls who had done their MBAs, adults, willingly had gone with these boys.
Veena Gowda: When the Court insisted and said that no, you live with your parents for a week, and then the girls came back and said, no, we were forced to go with these boys, we want to stay with our parents, we were brain washed to convert to Islam, we are these Hindu girls. At that point of time, the High Court of Kerala coined this term, I don't know if it was the High Court of Kerala or the police, called Love Jihad. So in similar cases where young couples elope in love, get married or move away, but the religious identity of the litigant, of the woman, of the man actually also plays the role finally in the kind of judgement and orders that are being passed. So to that extent, while what the law does is to construct this woman as this monolithic identity of just being a woman, but also what matters to a certain extent is her class and her caste. I mean, for example, often what happens is that the cases that go up before a court are of upper middle class and middle class women who are in a position to actually litigate till the higher courts. So for example there was also a recent Supreme Court judgement where I think there was this couple who had...the man was working in London, the woman got married, went to London, had a child there. There was an issue of domestic violence, both of them came back, she continued to stay in Bombay while the husband went back to London. He filed the case in London saying...they had a child who was three and a half years old...and he went back and filed a case saying he wanted custody of the child, and that the wife is not coming back to London with the child. And so he gotten an ex parte order from the UK courts and came to India, asking for execution of the order. I think the matter went up to the Supreme Court where the Supreme Court told the woman that she had to return back to London because there was already an order by the UK court.
Veena Gowda: Normally if you see judgements and case laws even about 4-5 years earlier, in the early 2000-2002, such judgements asking the woman to go back and litigate in the foreign country would actually...such cases and judgements were very rare. Such judgements would not be really passed. But how the court looked at this woman was that she was working, she had gone to reside in the UK, hence to that extent being educated, being upper class, having gone abroad, she is this empowered woman, and therefore can go and afford to litigate in UK. So thereby to a certain extent ..just by virtue of being educated, negating the whole issue of domestic violence, negating the issue of familial support etc, the Court said she would have to go back and litigate. So what is happening to that extent is that, and I think somewhere what has happened is that to a certain extent we have ignored the whole movement that has started of...what in Bombay has started, the Purush Hak Sangharshan Samiti (Male Rights Advocacy Committee) or the organisation called Saved The Indian Family. Suddenly what has happened is that for a long period of time, people have been talking about misuse of 498A, and that women are misusing the law. And what women are actually doing is breaking families. So suddenly women's rights, that the women's movement had constructed as an individual identity, as the whole victimhood, suddenly it has become women's rights versus family rights. And I somehow feel that somewhere in this whole process of legal reforms, of situating women within the law, somewhere what we haven't done is question the very institution of family, institution of marriage. I mean, even now, I get women who come, who have faced the severest of abuses, be it sexual, physical, mental, verbal, whatever it may be, and you ask them, what is it that you want? And she will turn around and tell you, that yes, what I want you to do is save my marriage.
institution of marriage
Veena Gowda: Somewhere I think in articulating our rights...I don't know...as a women's movement we have somewhere not...we've failed to question, to look at, and to think much more deeply on what the marriage/family actually means to these women, and how have we constructed the laws. And also that in this whole process of litigating, and entering the Court, and entering the State formal structure, have we also somewhere negated spaces that women normally negotiate within that...for example, their own families, their own community. At the community level. For example, you see a lot of Muslim women, initially...now because of the whole thing that communities are not...a lot of Muslim women approach the community or the jamaad or the mohalla leaders if they have issues of violence or issues of rights etc. And there is a sense of fluidity even in the way laws are interpreted in the community. For example, there are cases where the man has said talaq once or twice, and then he actually wants to revoke that and doesn't really want to give a divorce, while the woman says that okay, this is not the man I want to live with, she'll actually say, no he said it three times, it is over as far as we are concerned. I mean there was even the case where the woman said ki madam, actually usne aisa nahin kaha, par main bol doongi, kis ko kya pata chalega (Madam, he didn't actually say it like that, but I'll testify anyways, who will know the difference).
Veena Gowda: You know, there was also this fluidity of law, spaces within which women were negotiating their right. Not necessarily always in the favour of women as I'm seeing it, but this whole ...situating women in the framework of law, I think somewhere what we've also done, is not really looked at these informal spaces that women were negotiating, which I think one also needs to do. And also, just as a last point, very briefly, I think somewhere I think there is also a shift within the women's movement from constructing the woman as a victim towards a more positive light. I think lawyers like Keerti Singh, Flavia Agnes etc are talking about matrimonial property rights because the courts are also constantly talking about irretrievable breakdown of marriages. While at one level when you're talking about 498A, the Courts want to save marriages. While at the other level, when you're talking about divorce and lengthy procedures, the courts are saying that what we need is an irretrievable break down of marriage. But the minute you talk about property rights of women, what they say is that what women actually want is money and don't really care about family and marriage and their own children. So I think that yes somewhere these are the contradictory positions that the Court takes and the law also takes, but there is a shift now, since people are... I think it's time we do construct women's rights more in a positive sense rather than only from the perspective of victimhood.
Usha BN: The report that the People's Union for Civil Liberites brought out on cultural policing in Dakshina Kannada, Coastal Karnataka. As I've been part of the process, and we're mainly women have been primary targets of this kind of attacks, I would like to mainly focus my talk on that. We all know about the Mangalore pub attacks. We've all seen it enough on television. It gained a lot of publicity as it was flashed on the television in every television channel. It really pressurised the government to really take some stand, and it was also because of the upper class women who were being attacked, there was a lot of uproar also, I feel. Because of the very upper class nature of the women who were attacked. But what we really see in Mangalore happening is that not just upper class women but actually women who...aren't girls and boys, who actually travel from small villages, who go to colleges, who go to these public spaces, accessing these public spaces, are being attacked by the Bajrang Dal and Ram Sene activists, and this is what I think we really need to look into.
Mangalore pub attacks
Usha BN: If you just do a small survey of newspaper reports, for example, here I'm just taking what we have done in the fact finding report. Of September 08 to February 09, if you just look at the period, which is just 6 months, there are 22 incidents in the English papers being reported, and 45 incidents of various attacks on women where are directly being targets in coastal Karnataka mainly. I'm also including here the attacks that happened in Bangalore as well, where there have been 9 to 10 cases of women who were attacked...English speaking, Western...women who are wearing Western clothes, also attacked in Bangalore. And if you look at...because of the lack of time I don't have time to go into too much of the details. But I'd like to mainly lay down what is the nature of attacks that have happened and what does it actually tell about gender politics, and what is happening, and what kind of control do these forces actually want to establish. One, we see that attacks on young people, college going students, boys and girls, publically interacting with each other, openly, we have numerous examples here. Where Mangalore trip was...Bajrang Dal activists attacked a Mangalore college trip because girls and boys from both Hindu and Muslim communities are going together in a trip. So they stopped the bus, then the trip was cancelled.
Usha BN: Or whether it is a girl who is being saved from a space...they call is 'saving'...protecting women...I want to see how it is articulated. Constantly, you know, these kind of attacking young people is 'protecting our women' from being ...all these things like love jihad and things like that. Basically protecting them and saving them from the kind of 'other' conspiracy that the other community seems to be doing. We also have attacks...where you know..young people are sitting together and having juice in a bus stop in Kundapur, or in some small town. Bajrang Dal activists attack them, take them to the police station, and what the police does is counsel both of them, take an oath, get some kind of signature or maybe not even that, and send them back. This happens every day in coastal Karnataka. And then you also have cases of girls committing suicides. I'm not going into different cases at all, I thought I'd read out some of the cases which gives you details of it. The devil is in the detail. What kind of things that actually happen, what processes are involved, because of a lack of time, I'm just proceeding to other examples.
Usha BN: We also have girls committing suicides because of the insults. You have numerous cases...in our own report we have two to three cases where the girls have committed suicide because of the insult they have gone through. In a public space, you have been accused, you have been taken to the police station, your parents have been called, and you are being counselled, and you know so much insult...when they have done nothing wrong. As young people, interacting with their own friends...there is so much of insult that they go back and kill themselves; suicides that we see. We also have attacks on pubs and hotels and cinema halls. This is another thing. Of drinking beer together...for women for going there and having beer with boys...it is polluting and destroying the Indian tradition. And you also have...going to cinema halls together, girls and boys of ..you know Hindu and Muslim...basically it is more on Hindu girls mixing with Muslim boys. The point is here that the girls are being conspired by this community to basically convert them, to pollute them, whatever that is called. Then you also have attacks on women because of westernization. What they call as the 'dangers of westernization'. For example, you have the Miss Femina contest that is being attacked. There is a Bharat Mall in Bangalore where the Bajrang Dal activists attacked the Miss Femina contest, deleted all the photos that had been taken by the press and other people. You have another attack...and of course you know of the famous pub attack...and also you have...dance classes. You have these dance classes where they have these western dance and things, which are being attacked..they say that girls should not go to...encouraging them to indulge in these kind of activities.
Usha BN: Then you have attacks directly on the minority women, like the nuns. Nuns are being attacked, alleging them of conversions. You know the famous case of August 2009 where Aisha, an 18 year old muslim girl, was asked by the Principal of the college was asked not to wear the headscarf to class. What started...there is also this campaign, this movement to ban the burqa; wearing burqas to the classroom. What started as a ban within the campus, then moved on to ban within the classrooms...you should not wear a burqa to the classroom, and then moved on to say that you should not wear a headscarf to the classroom. And that is where Aisha and her friends refused, and the principal actually called them and said that you should not wear, because you have all these ABVP, Bajrang Dal activists campaigning in the campus saying that burqas should not be worn and you know...when she refused, the principal said that she could be suspended for this. So this is the extent to which...I'm really just giving you the highlights. So what has been the response? I mean if you look at what kind of response, we have seen, for example, the police.
Usha BN: The police is directly involved, unless there is a total consensus, or some kind of a agreement within the police, it is not possible to...the local administration, the police, for example, when the fact finding team spoke to the police, they said that, anybody can complain, what is there? What is wrong with what is happening? They can't see anything that is wrong that is happening, and they're saying they have the locus standii. They have a legal location for whatever they are saying. They have a point there, the Bajrang has a point. And the Bajrang Dal repeatedly says that we have a very good relationship with the police. The police in fact has helped us. So every time you see that the attackers, who ever has done, is not being arrested, there's not even a single case. In fact, the police is co-operating with them to ... to go ahead with this, and basically counsel these cases and send back. And what is counselling being done here? Basically saying that they should not mix together. The opposite communities should not...people of the opposite sex belong to different communities cannot interact and it is very dangerous.
Usha BN: And what has been the role of the public? It is also interesting to see how people actually go and inform the Bajrang Dal that these girls actually stand there or whatever. It doesn't happen without that. There is definitely a role of the public here that one needs to look into. And of course the media itself. I mean you have to look at the regional Kannada press, really, to understand what kind of language and what kind of morality that is being prescribed. Again and again, and glorified. What exactly happened in Gujarat, the kind of role that the media played, we can see the exact pattern happening here also. Where there is a particular kind of conservative morality that is prescribed to girls, in the name of protecting them, saving them, from this kind of thing. What we really need to understand is that Swati was asking about..the every day nature of this...there is an everydayness about these attacks. And because it has become a common sense..it is no more a...if you talk to people, there is a consensus that is there. There seems to be some kind of acceptance, some kind of ideology or value or morality which seems to be mainly pervading over all powerful institutions. Whether it is the media, whether it is the local administration, whether it is the police...there seems to be a consensus within these powerful institutions which makes it very impossible for a person to really... And it is definitely become like a natural course of things. If you talk to anybody about the pub attack in Mangalore they will say, haan yeh toh hota hai (yes, this happens), every day it happens. What is so...this seems to have become a part of your every day life. Naturalized, to such an extent. and when you look at the statements that were made. For example Praveen Malki who was the founder of the Ram Sena, said that girls were violating traditional Indian vaues. So we had to do this.
Bangalore has witnessed a spate of attacks on women by right wing groups (details can be found in the Frontline article 'Culture Police'
. These attacks raise the important question of women in public spaces. Women's fear and vulnerability in public space is universal and a subject of society. 'Why Women Feel Safer In the City'
discusses a survey where respondents said that women felt safer in a city like Mumbai as opposed to rural areas, but that the safety had to be manufactured by them as they went from place to place. The survey indicates the pitiful acceptance of women in the public spaces in India, and how unsafe most women really feel in such spaces. This can have special ramifications on the economic life of women. (as discussed by Darshana Patel in 'Ladies Specials: Gender and the Public Space'
). With the right wing groups giving so little respect to the entitlement of women to public spaces, it is no surprise that incidents such as the Mangalore pub attacks occur. Shilpa Phadke's piece titled 'Dangerous Liaisons – Women and Men: Risk and Reputation in Mumbai'
discusses how safety in public spaces has been tied to the notion of state responsibility and client-hood, which reduces the safety of women in the public sphere. The piece looks specifically at instances in Mumbai but says that the exclusion of women from public spaces also had a negative impact on other marginalized communities as well.
Usha BN: "These girls come all over India, smoke and drink, walk around in the night time, spoiling the traditional girls of Mangalore. Why should the girls go to pubs? Are they going to serve their future husbands alcohol? Should they not be learning to make chappatis? Bar and pubs are for men. We want to ensure that all women in Mangalore are safe and come home by 7 pm". This is the interview he gives to the Indian Express when the attacks happened. So this clearly articulates where they are coming from. Repeated use of this "saving" and protecting. Although the discourse of the entire Rightist forces happens in the present context, it also invokes a past. An impressive past, a glorious past, which is a homogenized past. A past where ...of this glorious Hindu woman. So it is very interesting to see how in the present context you invoke the past in a particular way and you justify what you are trying to do. And also there is another angle to it. It is not just ideology. We also have to understand what Deepu was saying, about the Raghubira community, it is also about socio economic frustration which is there in the community, which has been...very. There has been twenty years of mobilization. You have to understand that twenty years of work has gone into coastal Karnataka where the rightist forces have worked, they have built what has come to mean today a common sense. We need to understand that there is a lot of socio economic frustration which has been very succesfully used today and no more people are talking about ...
Usha BN: Another important thing is that the construct of the woman in the Hindutva forces, and what we see as ... as any other fundamentalist approach, is basically patriarchal control. The control is over the woman's mobility and sexuality. And women's sexuality becomes the hinge on which the honour of the family, the honour of the community is constructed. So any kind of attack or protection....so it is both. One, the sacredness that needs to be protected, of the woman. You have all this protecting and saving. And also humiliation. They can also rape. In Gujarat you know they have raped muslim women. So the same people who talk about sexuality as sacredness, as something that needs to be protected, at the same time can also go and rape. There is no conflict there, there is no binary there. Why is it? Because they also look at it as a sort of humiliation. As a space for humiliation. Thus virility becomes a very important aspect of defining the community and defending one's own home, and identity where the woman is...where it hinges on her identity. So it's both...the whole discourse has a very nationalist fervour, as well as a strong gender content to it, of control, patriarchal control and all these things. And you also have..the Hindutva forces doesn't just talk about women as a weak woman who needs to be protected but you also have the Mata Yatra and the Anisuya Jatre happening, just finished, happening in Chikmaglur. So you have a woman who is very powerful within the family, as a dutiful wife, as a sacrificing mother, as someone who will hold the family together, as someone who will hold the community together.
construction of woman
Usha BN: Who will not, and where is the problem? The problem is out there. The muslim or whoever is...externalising the problem without confronting any difficult questions within; what is happening within the homes, within the family, within the community, no such substantive equality rights of women are spoken about. So it is externalising the problem in a way that internal problems are never addressed. So that family, community and marriage becomes an extremely important space for defining identity for women, and thus in a way, legitimizes the patriarchal control. Who is the legitimate owner after all? It is the man. It becomes a legitimate control. I had many other things which I though I would talk about but maybe when we go to the question answer session.
Usha BN: Impact of this on the women...I think it has created a lot of fear. When the fact finding committee wanted to talk to the victims, none of them wanted to talk. Very clearly there is a lot of intimidation, fear. And that is the worst thing. That you live with the fear, and intimidation, and really it is the worst thing that can happen. Because that is the way someone can silence people. And I think we should understand that gender is not just an isolated identity. It comes with many other power equations that we all hold. Oh upper class and caste etc, and we really need to address these issues keeping all these things in mind. And I would like to just narrate a small...and I'm sorry that I'm taking so much time...there was recently a flood in Karnataka, and a lot of villages were under the floods. One of our friends who was doing work...was narrating this story of this village where there are only Hindus. And there is a masjid there in the village, and they celebrate moharram as a village festival. There are many villages like this in Karnataka where moharram is a village festival. Everyone celebrates it. So when they were shifting the houses, they were also discussing what should happen to the temples and everything. I mean, how do you shift a temple? You can shift houses. So but when this person, who narrated this story, asked them, what about the masjid that is standing there, what will you do? They said (in kannada), can we leave the peer sahib behind and go? Of course we will take him with us.
Usha BN: I think it's ....somehow in our own understanding of secularism, and fighting the rightist forces, I think somehow we haven't really seriously addressed the issue of faith. We haven't really understood faith, and how it is such an intrinsic identity of people. And how it is such an important thing for people, and not just the money, but faith is an important thing. And faith is something that is ...many aspects are there to faith, which I am not going into, but I think which we need to address. And not look at gender in isolation, but look at it in relation to these other aspects. And only then will we be able to comprehend the complexity of what we are dealing with and find ways to basically deal with these issues.
Moderator: Shall we take a quick round of questions. Usha, Aarti, Deepu, Namita
Usha Ramanthan: Is this notion of rule of law...because it seems evident that anyone who has tried to enforce the law, or even make the law sometimes, doesn't actually respect the law. So the instrumentality of the law has become very plain. So there doesn't seem to be any value that's passed on to law making, or passed on to institutions that are connected with implementing the law, interpreting the law, whatever. So maybe we need a reassessment of our law making, that is, Parliament and Courts, particularly. The executive too, but particularly the parliament and the judiciary. What their respect for the law is. Because from all that we've heard today, the law nowhere says that women should behave in one way or the other...it doesn't say any of this. But there is a power that is assumed because they can afford to disrespect the law. So I just wondered, if maybe some kind of thinking along those lines...if we have to challenge our institutions.
Deepu: Actually, I wanted to add to your last point. I agree with the question of whether faith plays a major role, but at the same time, the peer sahib, is being accompanied by the, for example, the festivals that are happening is accompanied by different Hindu goddesses and gods also. Hindu gods are travelling along with the Peer Sahib, which was not existing a few years back. So let us ...I can't see it as a communal harmony of different gods or whatever...but I see it more as...a change in the phase...this faith which was there, which was getting attacked by the Hindus, today they are finding a space. That transformation is there, right now, in those faiths.
Aarti: Question for Veena mostly. I was just sort of thinking...we were talking about this earlier as well, about this backlash of "saving the family", this sort of...in the last decade or so, this excessive focussing on how women are misusing the law. Whether it is 498A or so on, and I was also trying to connect it up to the Dowry courts of women that were held by Sulochana in Bangalore. I was just wondering, even at that time, and you mentioned this towards the end of your presentation, on...the excessive focus on marriage. And I was wondering whether or not we want to sit down and do a very..sort of harsh and rude reflection on why we campaigned to enact what we did at the time that we did. So if you look at everything...Well the Dowry Prohibition Act started around 1961, you didn't really have much to do with it as a movement, but it's two big amendments that come in the 70s, early 80s. The 498A Enactment, the 304B enactment, both your Indian Evidence Act amendments, all entirely and solely focussing on protecting one thing, and that being marriage.
Aarti: Violence, irrespective of...in any other context, has been grossly overlooked by the movement itself. Would that be a very inaccurate statement to make, I'm wondering. That's one thing. The second being...where have we reduced all violence, barring now with the Protection of Women in Domestic Violence, the new act, have been associated solely and only with dowry. If you look at 498A, or anything else. Everywhere the effort has been, and it's been our...it almost appears, and I'm saying this ...it almost appears as if it is our effort to protect the institution of marriage. And it's coming from us. Please protect me, I'm the married woman suffering. And now for us to say that the law is protecting only married women, seems to be, in my mind, a sort of strange...kind of turn. And I'm wondering where and how we're responding to this.
Namita: My question..rather my comment, is to Usha. I just wanted to sort of make explicit what seems to be a rather simple point, just by looking at the report that the PUCL have done, about where the attacks have happened. Like looking at bars, pubs, cinema halls, malls, colleges, juice stands...there seems to be...and I'm making possibily a very simple point, but there seems to be a link in the sense of them being all public spaces. And there being a link ...apart from communal politics, about limiting women's participation in the public sphere. Which, if one makes explicit, then one has to think about what does that mean? Does it have links to the role of the women in the public sphere? In terms of voting, politics, economics, jobs...what happens when I'm attacked? What do I do? What jobs do I no longer consider? What things happen then... I was just wondering if you could respond to that. Or if that would even be a sensible point to make.
Moderator: We'll just take a few more questions before you respond. There are two at the back, and Alok.
Gentleman in the audience: This is to Mrs. Veena. Madam, we are talking here more about positive discrimination, is it more about discrimination towards women and the rights of women as against men. Do men's rights follow anywhere? Is there any question about men's rights?
Alok: This is a question to Veena. Actually, I wanted to ask a question to Mihir also, earlier. As we all know, there is a certain generally speaking judicial bias against lawyers who appear to be human rights lawyers. Lawyers who appear to be coming with a human rights agenda, and judges seem to be biased about that. Do you think that you have to be strategic in your court craft, and do you have any advice on that? What kind of court craft manner do you adopt when you present a case to the judge? What is the importance of at least appearing to be reasonable before a judge. I mean, the judge is already biased, without exacerbating...any thoughts on that?
Namita: I just wanted to say that Sumati and Sunil's presentation was brilliant...I mean, you echoed Judith Butler practically, it was that good. Thank you.
Sumati: If you don't mind, if you could give me three minutes, we wanted to give the conclusion that is there. <pause>
Convenient rigid boxes...and these boxes...I mean, one's life experience almost feels like a jail...a life time of feeling incomplete. There are many efforts from centuries to break these boxes and of course it has been broken in many different ways. Even the trans gender or trans sexual, or intersex journey ends up reinforcing the hetero patriarchal convenient boxes, for the want of a validation of respect and dignity. Unfortunately it is such a trap that neither being in the box faithfully nor shifting one to another, or remaining in a self defined or undefined sphere of gender..it still doesn't help in any which way, nor does it make you feel complete, nor does it include you in any which way. So either way we are standing outside somewhere. So there is this continued feeling of discrimination.
Sumati: So basically what we are trying to say that even sex is not binary, it is multiple, gender is also not binary, it is multiple. So the experience of both is quite rich. And the other thing that adds to the whole thing...sorry. So most of the social movements for rights have worked within this hetero patriarchally convenient reproductive paradigm, while understanding sex and gender, in all the other spheres. For example, when we think of labour or any kind of work for example. So it is still operated within the same reproductive paradigm. So there is a problem within that. There is no distinction between sex and gender. To understand the body and the rights and the choice of the individual to exercise those rights, the asserting of the right over a person's body and the associated selves dignity as a choice will open up larger debates over many issues including sex as work or as an institution of exploitation etc. etc. It's also about a personal choice over the body, and the life around the gender expressions. Yes, at one level one cannot totally separate the sex-gender link, which is historical. I mean, we're not even saying that we need to really separate both that ways. The complex angle that contributes to all these issues, of sex and gender, is also sexuality. And even that, too, is not binary or one single thing.
Sumati: That too has multiple expressions. And that...it furthers the rich layers of the self. So in the conclusion, basically, what we are suggesting is, these are just our thoughts...what we've been thinking through our life experience and work experience and this is not any kind of academic research or any such thing...and we are quite unfit to even present such academic papers. But the few things that we've come to experience..that is what we are trying to come up with. One is to disassociate the sex and gender link based on the reproductive paradigm. Through this, one can also bring out in public, the violence that the family system, or that which is within marriage or outside marriage or something called as marriage or something called as family, because there are many numerous kinds of families and many numerous kinds of marriages. So even that kind of violence can be brought out on individuals, and especially on people who want to be different. By disassociating the body type and the social political economic and cultural roles, hetero patriarchy can be questioned and the family can also be brought into the surveillance of legal system more strictly. It also does not limit the roles of reproduction, and allows for redefining motherhood and family. Further, the individual's identity need not be centralised to reproduction alone. So the freeness in the journey from the body type to the self's gender will enable people to assert their rights in a supportive manner, not isolated or alienated.
Sumati: Second thing - recognition based on gender. The process of identification could be freer if chosen gender is given more importance than sex based gender understanding. It is more of gender that plays a role in a person's life, and so giving importance to gender without strict gender restrictions will enable the individual to grow and assert their rights. Further, the marginalization based on gender and sex which is historical injustice could be justified through positive discrimination which is inclusive and not exclusive. In this process, we could even refer to the Yogne Carter Principles and the International Bill on Gender Rights. Then, the last point that we are trying to make is that social and citizenship identification should be open and inclusive. We should place in a system with forethoughts of being inclusive, with positive discrimination, without further creating minorities. The existent system was made without forethoughts. Like, as though, only that which is visible can exist. In this context, the chosen gender could be one of the options. But because of the historical context of gender marginalisation, an open system without boxes would be a better choice. The individual should choose both the sex and the gender, and that should be reflected in identifications systems. This also means that society changes to this kind of openness. For example, sex - dash- where people will fill in, but no box. Gender, a dash, where people will fill it in, but no box. Ultimately, gender is not just a body. It is a feeling of a person, and it is a journey and it is a life's journey.
recognition based on gender
Sumati: Lastly, the country which talks about diversity in various areas cannot take certain types of diversity which exist in the world. It can be because of the binary system which is made without forethought or neglect of historical convenience. Thank you.
Veena Gowda: Regarding Aarti's question...yes, to a certain extent I do agree that a lot of women's rights got constructed within the institution of marriage, family. I think somewhere, where one seems to be shifting away from there was...the protection of women from domestic violence Act, which opened up rights to a whole lot of other relationships. And tried to include women in what they call as 'live in' relationships, or not recognised as wives. But strangely so, even that relationship is defined as "in the nature of marriage". So yes, to a certain extent, a lot of ... most of the rights have come from this institution. And a lot of times.... forget the movement. A lot of times I find a contradiction in my own work....at times I feel what my work means is to challenge the institution of marriage, to challenge the institution of family, etc. But what one tends to do in your litigation and assertion of rights, you seem to be reaffirming those very identities. You know of the mother, of the wife, of whatever. Of the marriage, as an institution, etc. So yes, somewhere you are. And that is the contradiction that you and I will have to live with for a long time as long as we do matrimonial litigation.
Veena Gowda: About Alok's question...about drafting...I mean, c'mon, ask Mihir yaar, but the thing is that, yes..I think one of the criticisms of when we were dealing with this whole issue of bar dancers. As you may know, there were women dancing in bars in Bombay which was banned by the State of Maharashtra, saying that women cannot dance. Hence there was a public interest litigation filed, as well as a litigation filed on behalf of the Bar Girls Union, filed in the Bombay High Court, challenging that law. So...the distinction that we made in our drafting was that these are bar dancers. They are not primarily sex workers, okay. And we are not really sex workers, was the disctinction that the Bar Girls Union made. To which, to a certain extent, was criticized by certain feminists, saying that, you have got an order in your favour by distinguishing yourself from sex workers. Basically saying that "excuse me, we're not sex workers" is how you have got that right. So I think that that is where strategizing...and limitations of strategizing working within the court system or the legal structure comes in. I mean, we were not in a position to go to court and say excuse me we are sex workers, please allow us to dance in bars. We would have got thrown out I think from Day One.
Veena Gowda: To a certain extent, yes it does happen within matrimonial law, when you are articulating issues of violence. But like we said...women's lives..the kind of stories that we hear etc...of being able to translate women's realities into legal drafts...there is really no need to exaggerate. I mean, when everyone critiques about 498A being a dowry law. There is no need for an allegation for dowry harassment under 498A. It's just the virtue of violence...whatever reason may be is good enough to attract 498A.
But there is a need to ...we need to spice up and add a little bit more to the statement in order for it to come under 498A, which I don't think is really necessary. Yes there is, as a strategy, a bit of compromise that you do make, I mean, often...I've working with Flavia for a very long time and we say that there is a shift in the way we as lawyers behave if one knows...I mean Flavia is a very aggressive person, fights with everybody in Court. I mean, the judges, everyone says, very fiery lawyer...but I think the strategy...what the younger generation has done is say, lets see, we slowly try to stretch the boundaries. You sit, you participate in Bar Association meetings, you do whatever, you are part of the whole system, trying to see how you can work from within. So yes there is a change.
Veena Gowda: And about your question of men's rights. I think the thing is that the need for 498A was also because general sections of law - 321, 323 etc on hurt, grievous hurt did not...was not being applied to women when they approached the police. Women went to the police station and said that my husband beat me, or whatever, and then the police would say, or the law would say that this is a family matter. Why are you really coming to us. So there is a need to articulate rights for women, very specifically. Hence you know, the 498A which talks about women's rights only. Because otherwise, general law, if as a boy you are being beaten up and you go, general sections of IPC will apply. Because they were not applied to women, was the need for a special law. Secondly, for example, the whole example of custory. Law says the father is the natural guardian. I mean if you look at what the section of the law says, hence there was the need to carve out and litigate to say that, no, the mother too has a right to the child, to custody. Hence, to that extent, no, because general law is said to apply to men, so there is no need. Of course, I'm not going into the Constitution or whatever, because I do think, a little bit, that your question was on the lighter side. Thank you.
Usha BN: About what Namita was saying, about the public spaces...in my attempt to fast forward I had to say, I think I missed a very important point about public spaces and acknowledging women as citizens who have equal rights to participate in public spaces in whatever form that is. First of all, for girls to even come to schools and colleges has been a struggle, as we know, in rural areas. Or even within our homes, it's not that we've all found it so easy to access every space so easily. And now that even these spaces are...and women's movement had to fight so much to open up these spaces and create these discourses on gender equality and now we have some hundreds steps going backward by saying that women cannot participate. I think it's an extremely valid angle to this which really is a matter of concern. About Deepu's comment on faith and god's...where we also have Hindu gods coming in to Moharram...all that I was trying to say, the point that I was trying to make, was that it is time that we acknowledge faith as in important part of human psyche and human life. Something that needs to be seriously engaged with.
Usha BN: I'm not saying that this is bereft of changes. Of course it is dynamic, of course it goes through various ...whatever...if you look at many of the dargahs, when we were travelling, and doing a small study on the dargahs, we saw that many of the dargahs are also being called...many of the fundamentalist muslim forces are also taking over the dargahs, and articulating things in a different way. I'm not saying these are static spaces: these are also dynamic spaces grappling with various issues around them: socio economic issues, identity issues, many issues. Of course. No two ways about it. But what I am trying to say is that first of all, we need to acknowledge, as we start, as people who would like to work on these issues, that faith is an important issue, first of all. I think that has long been neglected and has not been articulated properly. Also, start looking at religion not just as ideology but also as faith, is what I'm trying to say.
Moderator: So I'd like to thank all the four speakers for every presentation. Sunil and Sumati for their fantastic presentation looking at rethinking the sex-gender binary, Veena for her tips on strategies for gender based litigation, and Usha for situating gender within communal conflict in Karnataka. We'll take a quick ten minute tea break, tea is being served in the next door. Please be back here by 4:45 sharp so that we can...and reimbursements...those who haven't yet got reimbursements, please do it now. Jiti is sitting right there.