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Feminist Engagements with Law in India

Indian Feminisms: Law, Patriarchies and Violence in India by Geetanjali Gangoli

september 27, 2008 EPW Economic & Political Weekly36book reviewFeminist Engagements with Law in IndiaSuneetha AchyutaIndian Feminisms: Law, Patriarchies and Violence in Indiaby Geetanjali Gangoli; Ashgate Publishers, 2007; pp xi + 149 , £ 55 (Hardback).The role of the law in feminist poli-tics is a question animating femi-nist theory in India for more than a decade. Reviewing a decade of law-making in the country, Flavia Agnes (1991) articu-lated the problems that law reform posed for feminists in addressing violence against women. Post-1990s, in the context of the rise of Hindutva politics and liberalisation policies, theorising on this issue took a more rigorous turn. Kapur and Crossman’s Subversive Sites: Feminist Engagements with Law in India (1996) proposed that feminist politics consider the legal terrain as a dis-cursive arena where battles over normative meanings of gender are fought. Struggles for legal reform could serve important political purposes and the legal arena could serve as a possible “subversive site” of dominant meanings of gender. Nivedita Menon (2004) places the issue of legal reform in feminist politics in the broad conceptual framework of democracy, citizenship and rights. Arguing that the liberatory potential of “constitu-tional citizenship” has historically exhausted itself in post-colonial countries, she argues that the operation of law with its conceptu-ally rigid binaries offers little for a feminist politics committed to democracy. Address-ing multiple marginalisations of Indian women requires feminist politics to look beyond the legal rights framework.PolyvocalityGeetanjali Gangoli places her book in this theoretical context (introduction chapter), proposing to investigate the viability of “Indian feminist engagement with law and legal strategies”, especially given “the challenges posed by politics of caste, communalism and globalisation”. Two decades of feminist struggles for legal reform, case law, interpretation by the policeand the courts of laws related to women, differences among the feminists over perspective and content of these laws, legislative responses to feminist demands for legal reforms are examined in detail. These, along with the interviews with members of a range of women’s and feminist organisa-tions are used to assess the impact, effect, validity of “feminist engagement with law” in India. An important assump-tion underlying this study is that of the “polyvocality of Indian women’s move-ment”, visible in their willingness to work together despite the divergence of opinions and perspectives. Offering a “sympathetic critique from within”, the author intends to demonstrate that the “Indian feminisms” have coped well with challenges.The ambivalence engendered by such a sympathetic position envelops the book: its tone and tenor, structure and argumentation, interpretation and conclusions. There is an intimate and insightful tone to the book drawn from an insider’s knowledge of the women’s groups and close observation of the women’s movement over two decades that sits uncomfortably with having to engage with the critiques. While she acknowledges the presence of the critiques from marginal positions, she focuses on the uphill task that the “feminists” have had before them. Though her analysis of battles around uniform civil code and feminists’ non-engagement with issues of sexuality point to some important limitations of the feminist frameworks of citizenship and sexuality, sheconcludes that, given the demonstrated opposition of “communities” and globalised Indian economy to women’s issues, “secular law and citizenship rights cannot be aban-doned” as a crucial arena of action. Gangoli begins by noting that the legal arena has occupied a central place in the Indian feminist movement, although scep-ticism can be discerned among women’s groups, right from the inception. This scepticism is illustrated with examples from the strategies adopted by a range ofwomen’s groups in Mumbai in counter-ing domestic violence, from the 1980s. Women’s groups such as Women’s Centre (feminist), Stree Jagruti Samiti (Marxist-Leninist) and Annapurna Mahila Sama-khya (welfare centric), irrespective of ideology, have adopted strategies of public demonstrations, support to the victim, conscientisation of the women, retrieving the property from the marital families to combat domestic violence “Neither (of the first two) have faith in legal methods or the legal system choosing to use non-legal methods of negotiation” (p 26).The next four chapters take up debates on the uniform civil code (UCC) and the Muslim Women’s (Protection of Rights on Divorce) Act 1986; civil and criminal laws regulating women’s sexuality; custodial rape and the new sexual assault bill and the domestic violence act. On issues of custodial rape and domestic violence, the feminist efforts, some initial limitations notwithstanding, have brought a broader understanding to the public sphere. The notion of custodial rape is being expanded to include rapes by army on civilian popu-lations and/or family members. Gangoli shows that despite low conviction rates and unsympathetic judicial interpreta-tions, “feminist interventions and rhetoric had permeated in different ways within policy and law making”, over the decades. More importantly, she points out that feminist movements have succeeded in shifting the terms of the debate. “While with Mathura, the ‘issue’ took precedence over the raped woman, with Bhanwari, both are important. ...In the process, the raped woman is no longer merely a victim, but is reconceptualised as a survivor and an agent for change” (p 97). Similarly, on the issues of domestic violence, though feminist understanding merged with that of the state on dowry violence, over the years, the distinctions became clear. And domestic violence began to be interpreted as a human rights issue. Here again, though low convictions and misogynist
BOOK REVIEWEconomic & Political Weekly EPW september 27, 200837attitudes of the legal institutions still con-tinue, Gangoli rightly argues, S 498A has served as a bargaining tool for women. Citizenship and SexualityIt is in the third and fourth chapters around Muslim women and citizenship; and feminism and sexuality debates that the substance of her argument unfolds. Tracing the legislative debate on UCC from constituent assembly to 1986, she points out that the terms of debate have shifted from the nation and its minority rights/cultural diversity to victimisation of women within marriage. Even though the secular feminists are uncomfortable over the issue of “internal reform” after the UCC controversy, she points out that the “mino-rity feminists” do not have the luxury of such a choice. Gangoli takes issue with Kumkum Sangari’s notion of community as a primordial identity, arguing that the work of Muslim feminists over issues such as nikanaama strains against such an essentialisation. When it comes to the framing of the law, however, she argues that the Muslim women’s act “in its very conception it remains discriminatory against Muslim women, as it denies a section of women access to a secular law on the grounds of their religion” (p 42), recent positive judgments under this act notwithstanding. She goes on to conclude that the comprehensive legal reform that includes family laws as well as employ-ment laws goes beyond the religious divide; positing women as citizens first overcomes the impasse between internal reform and common civil laws (p 47).While “minority feminists” are placed alongside other feminist groups, lesbian feminist critique is taken up in the chapter on sexuality. Acknowledging the criticism that Indian feminists have largely ignored issues of sexuality except in the context of criminal law she sets out to frame it in the larger context of “the legal regulation of women’s sexuality: continuum between civil and criminal laws”. It encompasses “the legal interpretation of women’s sexuality in laws relating to sexual control of women within marriage; to sexual assault and sexual harassment; to sexual practices constructed as unnatural – such as prostitution and gay rights”. She makes a broad argument that civil and criminal laws in India collude to contain and control women’s sexuality within marriage. Case law regarding restitution of conjugal rights, adultery and maintenance is ana-lysed to argue that women are considered the property of men, are not given any sexual freedom in marriage and that maintenance is linked with their chastity. Outside marriage, rape is interpreted more as a crime of passion than an act of violence; women alone are largely penalised under the prostitution acts and the sexual harassment regulations suffer from severe limitations. Homosexual relations among women are not even recognised in law. After noting with due concern the recent legal developments around Section 377, Gangoli also records the critique of the lesbian feminist groups of the heterosexism of the women’s movement and groups. However, it is the reluctance of some lesbi-an groups to allow for the recognition of sexual assault in same sex relationships which becomes the focus of analysis here. It is argued that this reluctance shows their inability to acknowledge power dynamics in these relationships which is unwarranted. The book concludes on a note of cele-bration of the diverse strengths of Indian feminist movements, and their ability to meet challenges from different quarters, that is, challenges from caste movements, communalism and globalisation (p 119). Despite the problems with the state, the limitations that secular framework of citi-zenship poses for feminists, laws and their implementation in the country, it is argued “law cannot be abandoned”. Com-munities, as the experiences of Muslim feminists show, are not easily amenable for feminist interventions, leaving no option for feminists but to continue their engagement with law. One is almost tempted not to pick up issues with the book, given that there are very few such honest self-examinations of feminist work in the legal arena from an activist-insider perspective – the dilemmas, contradictions, unsung triumphs and uphill battles that ensue. Except that one also has become familiar with the methods and conclusions of such an examination. There is a need to list at least a few. First, the disjuncture between the study of the legal institutions at the normative level and at an everyday level is maintained
BOOK REVIEWseptember 27, 2008 EPW Economic & Political Weekly38here as well. The actual practices of law and its everyday functioning are treated merely as a matter of contingency or strat-egy, not requiring any attention. For in-stance, ifS 98 A functions as a bargaining tool for some women, it is not elaborated how. If the bar dancers association choos-es to foreground their work as simply work but not “sex work”, there is no elaboration of its implications; if the judgment on challenges toS 377 says that only the affected persons can challenge it, the analysis stops by pointing to the anti-gay understanding of the courts. How do feminist interventions fare at the level of everyday practices of law is not a question that is asked here. Without such a question, analytical engagement with the recent feminist critiques of the law remains inadequate. For instance, Gangoli does not follow up on the significance of her own finding that women’s groups in Mumbai have chosen non-legal modes of political activity in combating domestic violence. What are its implications for discussing the validity of feminist interventions on domestic violence law, if not, feminist engagement with the legal arena? The second question that is almost raised but left aside is that of the perspectives of the marginalised (to the law and feminism) towards the legal arena. We get sufficient elaboration of the way legal institutions penalise sex workers, are prejudiced to-wards Muslim women, and do not even recognise the existence of lesbianism. But, one would definitely want to know, in a book of this kind, how the law figures in the life of a lesbian woman – vis-a-vis and through the family, work, society ingeneral? If not a theoretical exploration, at least some life narratives or fictional accounts would have helped. More importantly, while analysing the lesbian feminist groups’ opposition to the insertion of a criminal provision about assault in same sex rela-tionships in the new sexual assault bill, it is essential to provide the context. Such an opposition is rooted in the highly problem-atic context of their “non-recognition” in law. Shouldn’t we be provided with a sense of the debates among Indian lesbian and gay groups about the issues of “recognition” and/or “non-recognition” by the law?Such elision arises from another impor-tant truism in the author’s conceptual framework –her placement of the opposi-tion of the various “communities” to State intervention in their families and lives alongside that of the opposition or insensi-tivity of the State and legal machinery to women’s issues.After accepting that such a position is not easily available to at least dalit and Muslim feminists, Gangoli lets that insight remain marginal to her own femi-nism. As aresult, the “polyvocality of the Indian women’s movement” begins to look suspiciously multicultural, assimilating the lesbian and Muslim women’s “feminisms” into that of “the Indian feminisms” without adequate conceptual consideration of their different positions in the society. The book’s assertion that the Indian women’s movement is polyvocal – responding to the critiques from various quarters such as dalit, lesbian, Muslim women’s groups may well be true – but the image that informs this polyvocality is that of a benign, many-armed mother smiling at the truant chil-dren who have set up separate homes. Gangoli may align with the mother, but the children may not think so.Email: suneethaasrv@gmail.com

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