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Negotiating Spaces

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Fine-tuning Demand for Rape Law Reforms
by Malika B. Mistry

Majlis (Legal Services for women), founded by Flavia Agnes, a well-known women’s rights lawyer and activist, organized a national conference on August 10 and 11 in Mumbai on “Negotiating Spaces : Fine tuning our Demand for Rape Law Reforms”. The participants discussed the issues threadbare. Dr. Malika B. Mistry, who teaches sociology in Poona College, Pune, reports the discussion for the readers of Islamic Voice.
Harsh Mander, former IAS officer who works with street women and children in Delhi:
Women living on the streets face sexual abuse every night.  There was mass gang-rape of women by personnel of the security forces in a village in Kashmir valley in 1991, but the cases are still dragging in the court 22 years after the episode. While the Nirbhaya episode brought in hundreds of thousands of protestors on Delhi streets, no one lit a lamp for the hapless Kashmiri women victims. Same is the case with many women raped by army personnel in Manipur.
All of us are fully aware of the horrendous  and  brutal sexual violence against Muslim women in Gujarat  during their genocide in 2002.  (Tehelka has shown this tape) Suresh Richards, a VHP activist, is shown relating his exploits while talking to his wife who shows no remorse. Is it so that VHP women do not feel that Muslim women are not like women themselves? So it is ok, if they are raped!  It is extremely disturbing! 
There is need to understand the criminals who commit this crime. The 16-year-old boy who took part in the gang-rape of Nirbhaya, was the product of a  home where the father was alcoholic,  abusive,  and violent. Around 13, the boy went into serious crime of drugs. If we can reach out to such kids in time and give them love, they can become socially productive human beings.  Therefore, besides having a strong law, reforms of the criminals is necessary to make them socially productive.
Most often, public servants too harbor biases against certain individuals and communities.  Because of this, they do not protect the victims. How do we punish such high ranking officials?  The assumption is that State is the protector of the victims.  But in reality, the State does not help the victim. No lawyer is provided for the victim.
The Indian middle class does not  have  empathy for the deprived.  There are 50,000 street children in Mumbai. All these children should have been the beneficiaries of the RTE.  How can they study unless there are residential schools for them?  Chief Minister says he has no money and no place for these street children?  Politicians have money for everything else but not for them because they are not a constituency that will benefit them in elections. We cannot solve the problem of street children. We need to give space to these children to reclaim their lives.  A new discourse of non-violence is necessary. This alone can lead to prevention of crime and a peaceful society!
Audrey D’Mello on “Multiple Marginalisation””Is exclusive focus on sexual violence the answer?”
Majlis has been working against the domestic violence for last 20 years, but taken up issues related with rape victims only during the last three years. It has established Rahat to help these victims.  How did Rahat come into existence?  A three year old baby-girl was raped behind an office.  There was nobody to fight this victim’s case.  The parents brought the baby-victim to Majlis and ‘Rahat’ came into existence.  Rahat has done a study of 200 rape victims and findings are startling!  As much as 85 to 90% of these victims are children below 18. Reality of their lives is very complex.  The sexual abuse is rampant, indiscriminate and across the religions.  Rape by the acquaintance is the highest.  These victims are usually from the poor class.  They suffer multiple marginalization ““ hunger, no schooling, made to do hard labour,  live in very dangerous places,  grow up in shanties.
By default, a number of rape cases come to Majlis. Many of these victims are afraid to go to court. When some did go to court, some of them fainted in the court.  They cannot undertake travelling to attend the court due to expenses and paucity of funds. Counseling is a luxury they cannot afford.  When these women reported their rapes to their families and among their communities, their  life was made difficult.  If it is the rape of minor girls, they are put into shelters.  They have to undergo the humiliating two-finger test. Exposition to hospital, courts and shelter homes all put them into discomfort.  Being in shelter is like being in the jail already.  It is ironic that our entire system does not trust the victims. It has the bias against the women. These victims, like any other poor women, want to go to school, have jobs and improve their lives.
As many as 95% suffered rapes from their acquaintances. Among these, 65 to 70% offences were committed by fathers, brothers, uncles, brother-in-law i.e., close relatives.  Promise of marriage was the reason for 15% of the rapes.  Statutory rapes were around 15%. In the joint families, the victims were already facing physical, verbal, sexual, emotional and economic violations.  For such violence, there are two solutions : (a) civil: under the Protection of Women Against Domestic Violence  Act (PWDV)  or  (b) criminal : under Section 498(a).  Counseling aims at reconciliation between the victim and the aggressor. Here women try to avoid police and courts.  First women victims want to get all other types of violence redressed so they seek justice in civil manner. Only when nothing helps, they resort to seeking justice under  498(a). Thus sexual violence is reported at the end.
Look at these real life cases (names of the victims have been changed):  Rukhsana was raped by the brother-in-law over time. When a neighbor reported the case  to the police, she is put in a shelter home.  Her sister, who used to abuse her, now comes to the shelter and requests Rukhsana not  to depose  against her husband because if her criminal husband  goes to jail, nobody would look after  her!  Sharmila was being raped by her father since she was 8 years old.  She began resisting when she reached puberty.  When she attained the age of 14, step-mother wanted to throw her out of the home. She stayed with a relative. The father wanted to resume sexual violation. On December 31 night, last year, he attempted to rape her. When she cried, her neighbour heard the cries and reported the matter to the police. So now Sharmila’s father is in jail.  Step-mother comes to her and pleads with her not to depose against her husband because if he is punished who will take care of her?
Then there is a case of a Keralite young lady who was raped by a stranger. She suffers nightmares and cannot sleep.  If she has to sleep, she had to put on the lights.  In this case, this lady is from a well-off family whereas the above two girls were poor.  They had no lights to put on in their homes. These victims want to move on in their life. But they are not given a chance.
In case of statutory rapes, the teenagers have a glamorous view of life as depicted in the Hindi movies.  The boy promises marriage. The girl becomes pregnant.  When parents come to know, they file a case against the boy and the boy goes to jail.
It is found that criminal justice system is used only for 5% of the rape cases.  We need to find alternative systems of justice for 95% of the cases. Are we ready for this?
Flavia Agnes
Many times these women victims develop health problems.  When the teenage girls aged 13, 14, 15 or 16 years do not get menses, their mothers and sisters take them to the doctor. They only have the notion of love and then having child, as shown in Hindi films. In between what happens they do not understand.  For about five to six months, these girls are exploited.  When the family members come to know, the girl will reveal his name.  The boy is arrested.  It is pathetic to see these girl children with child faces but pregnant bodies.  There is urgent need to make the law work for these girl children and marginalized sections.
Advocate Arvind Narain
Sexual violence is pervasive.  Sex is used to victimise the conquered during the wars. During Bangladesh liberation, hordes of Bangladeshi women were carried away in trucks and raped by the Pakistani army.  Bosnian women were raped enmasse by the Serbian army.  Even though rape is predominantly of women but sometimes it can be against men. Rape of men faces greater taboo among the victims. For example, when an innocent man protested after he was locked up, he was raped (read sodomised) by three policemen.   Everybody knows about the sexual violence against Bilkis Banoo, but hardly anybody knows that her brothers too faced sexual violence during Gujarat genocide.
In normal times, rape can be committed due to hatred of a religion or caste as in the case of horrendous sexual violence against Muslim women in Gujarat and against the Dalit women in Khairlanjee. Rape is done to humiliate the individual women and men and the community itself.  In these cases, the intention to rape is more condemnable. Therefore there is a great and urgent need for the human rights movement to take up the issue of sexual violence on a large scale.  Rape laws should be gender-neutral and for this reason Justice Verma Committee has recommended “person’ in place of ‘women’ victims.

Chayanika Shah, social activist
Rape is a gendered crime. Today meaning of gender power has changed.  It is not only male power but also structural power, depending upon from which caste, class and community the woman hails from.  Intimidation, degradation and transgression are involved in the sexual assault against women.

Justice Prabha Sridevan, former Judge, Madras High Court
What is the image of ordinary woman in Indian Law? How is it constructed?
She is physically weak.  She cannot protect herself.  She can’t work as a guard even in a women’s prison.  How about a man? He is a father figure and ‘reasonable’. These are highly biased notions because the lived-in experiences of ordinary men and women in reality are very different.  There is a great need to inculcate the values of diversity and inclusiveness among the judiciary.  Violation of dignity and equality of women should be the value while delivering the judgements on sexual violence.
Common sense and memory of the judges is gendered. Women are not allowed their basic freedoms as law says that a noble woman is one who practices self-denial.  Indian society and Indian Law are based on ‘male supremacy’.  Concept of family honour is applicable for women victims only and not for the men the aggressors.  Two staunchly held misconceptions against Section 498(a) are that –  it destroys the family and it drags the bystander.   A study done on 498(a) in 11 districts of Tamil Nadu revealed that it is not easy to use this section because  evidence cannot be  produced in the court as violence happens in the private domains of the houses.  It also found that hardly any family members were dragged in to the court.  Then why are we biased?
An ordinary woman is rational, hard-working, expects respect  from her husband.  She is more empathetic. She deserves safety at home and safety at workplace.  She deserves a full life.  Are women asking too much?

Naina Kapoor, Advocate
Women victims face untold hardships in the courts while seeking justice. Medical evidence alone  should not be insisted upon  because it causes a lot of trauma. The public prosecutors and the judges ask very insensitive, awkward and derogatory questions to the women.  In India, Constitutional equality, given to women, is all the time violated.   To make judges sensitive to women’s concerns, her group conducts workshops viz. “Equality Programme” for the judges.  Today, we need preventive law and  it should become user-friendly. Today law does not provide entitlements to women victims.  Law does not provide the final solution as it misses rehabilitation  of the victims.
Prof. Nilima Mehta, former  Chairperson of  Child Welfare Committee, stated that the Indian society is in general neither caring nor protecting its children. She lamented  that Indian state  has done very little to prevent crimes by children.  We have to adopt a ‘reformatory and  rehabilitative’ approach towards our child delinquents to make them productive and good human beings.