THE BLOG

Practicing on the Margins of Mainstream Law: A Personal Perspective on Sexual Violence in India

On Dec. 16, 2012, a young woman from a lower-middle class family and her male friend saw Life of Pi at a central New Delhi theater. Afterwards, they boarded a bus to head home. What would have been a common evening for young people in the city became a living nightmare for the woman even as her male companion fought bravely to save her. Knocking him unconscious, six men brutally gang raped her for one hour on the moving bus. Two weeks later the she died of the brutality inflicted upon her. What changed?

Discussions about sexual violence have never been common to mainstream law firms, chambers or even law schools, let alone amongst the Indian public. Yet from birth to death, sexual violence shapes the contours of women's everyday life in India. That`s because sex and law have traditionally been awkward companions and have historically been scripted as crime-specific when it comes to women and sexual violence. When sexual violence emerged from the closet in the seventies, it was no surprise that it was largely it was largely in context of the "appropriate victim" standard, where a woman's "passive silence was deemed consent."

In the eighties, I decided to travel with a colleague across rural India to ask Indian women a simple question: "What does justice mean to you?" Across regions, language, class, caste and context, the reply was uniquely the same- "ensuring my sense of self remains intact."

Equipped with that insight, we returned to Delhi to co-found Sakshi, (meaning "witness") an NGO to address sexual violence. Over the years, I continued to meet women trapped in the lived reality of retrograde attitudes. Be it a housewife who felt compelled to remain in a marriage after being subjected to electric shocks in a medical facility, because her husband claimed she was not sexually "up to the mark"; or parents who paid an abusive son-in-law vast sums of money to take their daughter back so as to pre-empt social ostracism; or a 7-year-old girl who underwent 10 days of cross-examination in a court-room packed with lawyers and offenders for complaining against her sexually abusive father. None of this was translating into legal progress let alone "that sense of self" for women.

A significant turning point emerged in the nineties because of a rural level change agent named 'BD.' Engaged by the state government to prevent child marriages in her District, 'BD' succeeded in preventing the marriage of a one year old in an upper caste community. The result was persistent forms of indirect sexual harassment by men of that community. When she complained to the local authority, they did nothing. As a consequence, she was gang raped by five of those very men. Stepping outside the criminal justice box, the Bhateri gang rape case became a renewed possibility to connect the dots between sexual harassment, rape and women's constitutional equality. In a class action litigation before the Supreme Court of India, I proposed that sexual harassment be recognized as a violation of women's equality rights and that institutions be made accountable and responsible for upholding those rights. Clearly the universe was listening and the right Judge at the right time appeared. Delivering a landmark judgment in Vishaka v State of Rajasthan (1997), the then-Chief Justice, J.S. Verma, declared that "each incident" of sexual harassment was a violation of women's constitutional right to equality and dignity. Creating "legally binding" directions for all workplaces and institutions across India was a quantum leap. Constitutional equality had finally breathed life into the lived experience of women, sexual violence and mainstream law. But to what end? In the 16 years that followed this historical shift in perception, rather than authenticate the Vishaka vision through meaningful implementation, the covernment fell inexcusably silent.

It was an omission that cost us dearly as a nation, as Indians, as men and women, from the margins to the mainstream on Dec. 16, 2012, the day on which a young woman was brutally gang raped on a Delhi bus and her friend, beaten. An overwhelming and habitually complacent public rallied into a surge of protest and anger about rape, the likes of which I had not seen in all my years of legal activism. Overnight, rape became a centerpiece of mainstream life in India. And it was the youth who dragged it there. A novelty fueled two weeks later by an unexpected voice from the margins -- that of the young man who accompanied his friend on that fateful night. The power and courage of this one young man who, himself injured, carried his profusely bleeding friend, to the police van, while two policemen simply watched, who never received an iota of government support for his treatment, and whose only goal was to see justice done and change arrive, rendered us speechless. Rising from the ashes of his own pain, loss, and enduring memories of that night, he quietly and candidly shared with us on national television, the truth of appalling insensitivity by the police, bystanders, hospital services, the magistrate and government politics. It was a classic case with an atypical witness -- a young man, that rare witness to a rape, who exposed to us all the elements of what was so deeply broken in our criminal justice system when it comes to women and sexual violence. He was indeed the hero amongst us all.

A ray of hope came with the Justice J.S. Verma Commission. Set up to review law reform on rape as a response to the December incident, the Commission intercepted all the missed precedent setting moments that the State fumbled over, to gift us a moment of precedence. With unmatched innovation, the Commission became a unique standard for inclusiveness. It afforded women, men, LGBT representatives, women living in conflict zones, prosecutors, trafficked women and children, individual complainants, academics and activists the dignity of being heard. In a two day public hearing, there was no 'us' or 'them', no margin or mainstream- there was only we, the people. Undeterred in a record thirty days, the Commission cultivated a visionary approach to women's equality and sexual violence.

While the Prime Minister termed the report a "labor of love", a hastily framed Law on Sexual Assault that followed, betrayed the government's true intent. Not only did it shun the fundamental equality vision of the Verma Report, it abdicated all the systemic priorities raised by it including the removal of political representatives charged with sex offenses, internationalizing medical protocols, sex education, making the Armed Forces more accountable, and most significant, a proposed Women's Bill of Rights. Passing a critically flawed law became the only urgent act the government undertook post the Dec. 16 incident and ever, on the issue of sexual violence.

Going backwards is not the way to move ahead. Whether women arrive at that "sense of self", we are in the midst of churning. Against 30 years of state indifference, we got 30 days of the Verma Commission Report creating a paradigm shift for women's equality, sexual violence and public engagement on the issue. What's changed? For the cynic, perhaps nothing. For me, aware optimism and living in the present have been hallmarks of perseverance on the margins.

Today, it's how one woman's tragedy, one heroic friend, one public awakening, one Commission's efforts, the history of a women's movement and one moment in time, became synonymous with mainstream. What's that, if not change?

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