The workplace is a sacred space for any young person, and this should not be different for young women. Sadly, it is. As a young woman who has faced all sorts of barbs, and non-consensual attention—I find it necessary to list the sort of ‘logic’ that comes a woman’s way. This is the sort of mind-bending triteness one hears after one has said no. It is immaterial whether the ‘no’ came as a text message, or in a soft voice, or after a drink at an office party, or in the form of a slap. It is important that the ‘no’ came. And this is what follows. These are the top five versions of bullshit.Link exchange: cheap nike air max

1. ‘You are like my daughter. How can you ‘misconstrue’ what I was doing?’ This particular line of ‘logic’ needs more emphasis. In India particularly, the canon of the ‘elderly/ older’ person is one head-boarded by patriarchy and power, and revved up by gaseous self-righteousness. I am personally tired of this line of attack. It nauseates me and challenges the very Indian notion of an elder person having more knowledge, wisdom and compassion. Every Indian middle class home has taught its sons and daughters to respect elders. As a Bengali, I touch the feet of older people, immaterial of how well I know them or my opinion on their particular intellect or capacity for wisdom. This is why the victims—or survivors—of assault by senior judiciary members—hit home so hard when they say, ‘that man was my grandfather’s age.’ It’s the worst sort of contortion of respect, when an older man twists this around to suit his brand of predatory lust. If you are like my father, then do you not understand the meaning of ‘no’?

2. ‘You are from St Stephen’s, Oxford. How can you be such a prude?’. Again, this idea needs more discussion. I am speaking for the kind of girl I am, who to borrow an awful term, works hard and parties harder, or parties hard, and works harder, depending on how I am feeling that particular weekend. There are other girls like me, call them People Like Us, if you will. When we say no, we are at the receiving end of a sort of reverse snobbery. The most common things I have heard is, ‘but you do party, why would you say no?’. The ‘no’ could have been towards dancing with a colleague, or a sexual advance. Why is my private school education, my college and university education—all described by others as elitist, insular—being used against me? I am from a demographic that is well-schooled and well-brought up, and I take pride in this. Charges of elitism, of being liberal, of being a party girl, of being permissive, being a gin drinker, or a lounge lizard—which, it is claimed, add to the perception that I in fact, should say yes—are all peripheral. I am not a poor little rich girl. None of this distracts from the quality of my mind, which is the reason I have garnered my educational qualifications, not to mention my job. If you are in fact confusing an upbringing or educational qualifications with permissiveness, that is because you have melded my personal and professional spheres together, against my wishes. You have transmuted two different paradigms, most often violently.

3. ‘The universe is telling us something/ we are meant to be soulmates/ I was waiting for you my whole life’. Various versions of this sort of poetic fallacy are bandied around cheap jordans from china. It’s a pathetic attempt at justifying the fall from grace of people who perhaps who were once respected, or at least one wanted to be neutral too. I have to re-work a Madonna song here: ‘He only sees what his eyes want to see’.

4. ‘I was drunk.’ Girls have heard this far too often, and from far too men, for it to make any sense. If men claim that they drink, and go insane, and think with nothing but their genitalia, then what can one say, apart from, dear father-type-figure, please don’t ever drink again? Actually, no. that is not even the issue. The more serious issue is, blaming disgusting lust; or romantically, quaintly constructed “insanity” on alcohol.

5. ‘I want you to do well’. This line bears no further explanation, other than it takes off from a combination of point 1 and further attempts to justify repugnant behaviour. It is however constructed to confuse the victim at the workplace. Is it possible that a man—let us assume he is a senior colleague, in a position of power—can actually want to violate a girl and wish her well? Is it possible he is like a chameleon? Do we need to give benefits of doubt when a senior, an elderly senior, says this? I’d like to bring out the analogy that I always use. If you are trying to touch me, or any other girl like me, you are stealing. You are stealing something from me, something I do not want to give you. If your harassment (any attention after the no has been said is harassment) is purely mental rather than physical, you are still stealing from me—my time, my mental peace, my right to exist as a woman in a peaceful and safe setting.

Towards a more nuanced sense of justice

I mentioned earlier that both women initially wanted probes, discussion and justice, that was internal, to use one sense of the word. Unfortunately, the word ‘internal’ has been horribly mal-aligned by Shoma Choudhary from Tehelka, because she makes the word internal sound comfortable, like a sunlit tea-party where a certain ‘misconduct’ was discussed to everyone’s ‘satisfaction’.

Nevertheless, this is an important concept. As a woman who has said no–infact, let me problematize this further—as a woman who is perceived within the lens of class, social standing, permissiveness and elitism—and having said no, I reserve the right to look for the form of justice that suits me best. Any woman does. If I want to resign from my job, because no amount of jailtime can sanitise a particular workplace for me, then that’s my call. If I don’t want to go the police, and I want my senior to be shamed within the workplace, or I want to depose only in front of a committee, then that is my call as well. None of this has anything to do with the affluence or social currency I am charged with having. It has perhaps to do with the fact that the injustice, the violation, the assault, call it what you will, came from a certain sphere. That sphere, a workplace, which should see me growing, help mould my confidence, my voice and my integrity, is a certain atmosphere. If I want my assaulter to be shamed within that stratosphere, that fraternity—one that is internal—then that is certainly, my right and my call. I don’t want this form of justice to be made into a comfortable idea.

I believe this form of justice—moral justice—needs more discussion and will enable more girls to come out, speak up, and take on life. This is why I respect ardently the women who spoke up against the retired SC judge, and for what they are standing for. I also further the need for them to have privacy, and for them to not be judged if their first response was not to file a police complaint.

Towards a better understanding of ‘strong’ and ‘weak’

In popular culture, in male protagonists who appear in film or books,  men are depicted as quirky, funny, flawed, with hubris, multi-faceted. Usually women are depicted only in two ways: as either very strong—the Feminazi-I-will-castrate-you prototype; or as dolls, damsels in distress, relying only on male agency. Reality lies in the middle. In dealing with life, sometimes one is strong, and sometimes one feels weak.

But reality demands from women, superhuman powers. We must know how to dress, how to decode a touch, how to work hard, and how to stay away from someone if we think he is creepy or wanton. It asks of us to say no, once, twice, repeatedly and continuously, mental weariness be damned. It is asking almost too much from women who have to operate in workplaces which are sexualised or simply have mendacious men in power.

I will ask this of society: allow me to be slow. Allow me to complain, as I am capable of doing so. Allow me to come to terms with assault and ask for the form of justice that suits me best. And allow me to live life like a free woman, without the reverse snobbery society throws my way.

[Picture credit: www.rediff.com]

Singh’s address evoked no feeling whatsoever— the complete lack of inspiration is mirrored by my identical reactions to the hugely popular ‘Mere desh ki dharti’ from Upkar. The song is a simplistic representation of patriotism in a simplistic film that pits good brother against bad brother, noble, hard-working village India against the deceiving and traitorous urbane classes. Though sung evocatively, the song presents a romanticised, unbelievable and entirely imaginary account of rural India where everyone harvests crops rhythmically and has a permanent smile plastered on their faces. Cinematic license aside, the leitmotif of this song is an unabashed celebration of the nation, specifically the village, deliberately oblivious to its caste-ridden, faction-dominant, poverty-stricken nature. At the same time, its antara reads like a celebratory roll call of great Indians several of whom did not see eye-to-eye, a box-checking exercise to ensure that every audience member has a famous Indian to identify with and perhaps shed a tear for. In its conceptualisation and execution, the song is vapid, espousing support for a superficial and trite nationalism.

Singh’s speech was a similarly vacuous exercise. Its overriding theme was a celebration of his government’s achievement in the last decade and the Congress party’s since independence. All the tallest leaders were named, their virtues extolled, their shortcomings glossed over. Hearing his speech made me believe that all is, and has always been well in India and the little that is not will be made well through the oft-cited but seldom-found resolve, dedication and courage. Regarding the gargantuan problems that India faces today—corruption, debasement of public office, lack of respect for rights, abject poverty, there was only the briefest of token acknowledgements. Singh was like Manoj Kumar in ‘Mere desh ki dharti’ hoping to inspire the nation by mouthing trivialities. And unlike Kumar he didn’t even have either cinematic license to offer as an excuse or Mahendra Kapoor’s rich voice to spare him the blushes.

If Singh was banal, Modi was bluster. In my school-going days, the song ‘Suno gaur se duniyawalo… sabse aage hoge Hindustani’ from Dus was a massive rage. It captured the dominant mood of the nation at a time when the early fruits of liberalisation were beginning to manifest themselves—a country which was flexing its muscles on the world stage while recoiling to play victim at the slightest instigation. In its jingoism, the song was crass, urging flag-bearing Indians to repeat after the singers, an unfounded assertion of Indian superiority. Its constant frame of reference was the undefined other, who, so the song went, ought to be afraid of India and its growing might.

An analogous jingoism and crassness formed the two dominant themes of Modi’s speech. He unilaterally turned an annual Independence Day address into a slanging match with Singh, nit-picking deficiencies in the latter’s speech earlier in the day. Modi’s statements were undignified, repeatedly offering unsolicited advice to Singh on what his speech ought to have contained. In part they were also false, accusing Singh of pandering only to the Nehru-Gandhi dynasty in recounting great leaders of the past, when he had very pointedly praised Narasimha Rao, the Prime Minister whose name has seemingly been airbrushed by the Congress party from its own and India’s history. His jingoism was evident in his choice of location, which he said meant that his words could be heard in Pakistan before they could be heard in Delhi, a clear indication of the aggressive brand of nationalism feeding on antipathy towards the other that he wishes to propagate.  At the same time, he constantly harped on the need for fellow feeling, not because it was per se necessary for a nation, but so that the world knows of India’s strength. If Singh’s speech left me wholly uninspired about the future of India, Modi along with the regular raucous applause he drew, gave rise to grave concern about what such a future portends.

Caught between a vapid Scylla and a blustering Charybdis, I turned mid-morning to Bollywood for succour. Bollywood’s pool of patriotic songs ranges from the sublime to the mediocre, the heart-rending to the sloganeering— an eclectic mix of odes of love to the nation especially when threatened by external forces, tributes to martyrs in films made in the aftermath of, or commemorating war, jingoistic ditties when a war has been resoundingly won or the mood in the nation is upbeat, and contemporary reinterpretations of freedom struggle classics. But there is another rarely acknowledged brand of patriotic Bollywood song that does not celebrate the nation, but rues its traits, does not praise its collectivity but demonises it, does not hide its weakness but exposes it. Through a criticism of the nation and its dominant mores, it presents a competing version of nationalism, one that manifests itself not in a raucous celebration of India’s might or a vainglorious recounting of its history but rather in a deep anguish born out of an unsurpassed love for the motherland.

Sahir Ludhianvi’s ‘Jinhe naaz hai Hind par, woh kahaan hai’ from Pyaasa is, for me, the epitome of such anguished love. Though written in the 1950s, Sahir’s musings about the complete erosion of values, sheer disrespect for women and the pervasion of an unabashed immorality in a bazaar replete with brothels, have a striking resonance in India today. Akin to a gigantic cesspool of immorality, in contemporary India, the chief aspiration is material wealth, deal-making and corruption are favourite pastimes and values are an antiquated annoyance. In such a situation, nationalism can neither remain a trite appeal to solidarity against an external enemy nor can it simply re-invoke the glories of the past. Nationalism in such times of straitened values must answer Sahir’s call—those who are proud of India and what it stands for must themselves stand up against injustice and refuse to be part of the blind pursuit of wealth and fame. They must themselves realise the fundamental truth—the threat to India today arises not from without but from within.

It is disappointing, but unsurprising that neither Singh nor Modi adopted anything close to such a poignant understanding of nationalism, identifying instead with the superficialities Bollywood offers. Harking to the successes of the past and holding them out as promises for the future as Singh did is to remain deliberately blinkered to the miasma that engulfs India today. At the same time, Modi’s appeal to the baser urges of Indians, urging them to come together against the external other, provides a palliative only to the lazy, unthinking individual. Neither bluster nor banality can be an excuse for a steadfast refusal to confront the true enemy to Indianness, which lies not across the border, but in ourselves. Sahir realised this with his beautifully iconoclastic words in the heady days of post-independence India. But in the India of today his words have survived only as poetry to be heard once a year on 15^th August and then forgotten.

In the wake of the shocking Delhi gangrape, different organizations have chosen to respond to the incident in different ways. One, in particular, stands out: the Saket Bar Council’s [SBC] refusal to defend the accused. While taking nothing away from the magnitude of the event and the seriousness of the offence, I believe that the SBC’s decision is not only flawed in principle and an ethical mistake, but also sets an extremely dangerous precedent for the practice of law in India.

Let us examine the reasons put forward by the SBC. Its vice-president, Arun Rathee, stated that the accused “have committed a heinous crime”, and that “it would be immoral to defend the case.” Sanjay Kumar, a member of the SBC, added that SBC’s lawyers were staying away to ensure “speedy justice.” Four possible arguments can be constructed from these two statements. First, that the guilt of the accused is so blindingly obvious that no defence is called for; secondly, that it would be “immoral” for a lawyer to defend a person he believes to be guilty of a “heinous crime”; thirdly, that it would be immoral because it goes against the prevailing mood of the nation; and fourthly, the more speedily the case is disposed off, the more efficient it would be. All four arguments are extremely problematic.

To commence with the first two arguments: for better or for worse, the bedrock of Indian law is the common law, adversarial legal system. Numerous critics have pointed out the deficiencies of such a system – and there are many. Nevertheless, I believe it to be beyond cavil that those who voluntarily choose to join it do so on the condition of accepting it as a whole, flaws and all; and while they may consciously work towards its reform, it is pellucidly clear that they have a responsibility not to undermine it through their participation.

Now, the raison d’être of the adversarial system is this: the question of the guilt or innocence of the accused in a criminal case lies within the exclusive domain of the judge, who must decide the case on the basis of the evidence presented by the two opposed parties. Until the time that the judge pronounces his verdict, and the verdict is “guilty”, an accused is – and must be – presumed innocent. In particular, it is not the lawyer’s province to decide whether or not a potential client is guilty or innocent; his sole task is to represent his client, honestly and to the best of his ability, and leave decision-making to the judge. In contrast to the inquisitorial system of civil law countries, the survival of the adversarial system depends upon maintaining this distinction between the role of the judge and the role of the lawyer. Two corollaries follow: first, as Justice Katju recently pointed out, in the context of this very case – that every accused has a right to be defended; and secondly, it is unethical for a lawyer to ground his decision to accept or reject a brief on the ground of his personal determination of guilt or innocence. I do not argue, of course, that a lawyer is obligated to accept every brief that comes his way: a lack of expertise and a packed schedule are only two of many legitimate reasons to refuse a case. I do argue, however, that this reason is unethical because antithetical to the spirit of the adversarial system to which the lawyer, ex hypothesi, is morally committed.

The third reason ignores another ideal to which we, as a nation, are committed: that of the rule of law. As the history of the evolution of legal systems will demonstrate, the idea of government by law evolved out of an awareness that the opposite – government by men – is subject to arbitrariness, caprice and unfairness. Hence, one of the hallmarks of the rule of law is generality: laws are designed to be applied to situation-types, and not individual cases. Exceptions are rife, but the logic of their existence is internal to the law, not external. Public outcry or emotion, therefore, provides no ground to depart from one of the basic features of the adversarial system, that is, the irrelevance of subjective determinations of guilt to the right of the accused to have, and responsibility of the lawyer to provide, a defence.

The last argument is perhaps the weakest. An matter of principle – that is, the right of the accused to be defended – is ex hypothesi not subject to being overruled by considerations of efficiency. If efficiency was any kind of ground, then one could simply do away with the requirement of allowing both parties to be heard and to provide evidence. It would be even more efficient if the judge was permitted to decide a case based on his pre-hearing intuition. We do not accept that, however, because what we care about in law is arriving at the correct decision, not the most efficient decision. And the adversarial legal system presupposes, beyond argument, that the adversarial procedure is the best method of arriving at the truth.

 None of the arguments provided by the SBC, therefore, are sound. In addition, the ripple effect of such a move could have serious consequences. What is true today for those accused of a brutal gangrape-and-murder could be true tomorrow for particularly sadistic murders; the day after tomorrow, for child-abuse; and sometime in the future, for despised political speech that questions the territorial integrity of India, or that in some other way is deemed – by the SBC or an equivalent body, to be seditious, damaging or otherwise distasteful. The argument is simply: if lawyers decide whether or not to take a case on the basis of their personal judgment on its merits, our adversarial system cannot survive. One may not consider that a loss worth mourning; but that is a different matter entirely.

The SBC Resolution deserves to be strongly criticized, and in no uncertain terms. It is damaging for the rights of the accused, damaging for the legal profession, and above all else, damaging for the rule of law.

Running a positive story on Jindal may not get you high TRPs, but could ensure a sweet advertising deal. Similarly, as P Sainath noted in one of his lectures, running a half page story on the rapper Eminem in a Hindi newspaper (as was done by Dainik Bhaskar) may be totally meaningless for the readers, but will create an advertising space for certain consumer products. However, high TRPs usually guarantee a high advertising rate, and this is where Arnab Goswami’s success, and our abject failure comes in.

The most frightening aspect of the Caravan biopic on Mr. Goswami is not the unflattering light in which his own personality has been painted. It is the fact that we, the viewers, have validated his confrontational, jingoistic style of reporting by rewarding TimesNow with unprecedented TRPs. What is even more disturbing is how other channels have been forced or tempted into following suit. This is why we are subjected to ‘sound-byte’ panel discussions featuring the same 8 or 10 people trying to shout over each other every night for at least half an hour on issues that they know very little about. Of course, in other departments, such as putting tabloid news on the front page (or the home page of the website), other channels such as NDTV have left even TimesNow far behind. So if you were surprised by how prominently NDTV features celebrity stories in general, and the ‘Kingfisher Calendar hunt’ in particular, then it should come as no further surprise to know that one of the NDTV channels is partly owned by the UB group (which also owns Kingfisher). However, to single out reporters and channels is to miss the wood for the trees. The basic point is that there is something rotten in the state of Indian news, and the fact that people have started looking back at the Doordarshan days with a sense of warm nostalgia is a cause for alarm.

The reason that countries like the UK and Germany have adopted forms of public-sponsored, not-for-profit news is that they feel that there are grave dangers of a news industry that functions only for profit. And these dangers are presenting themselves in all sorts of sinister ways in the world’s largest democracy. Before the horrific Delhi gang rape, one of the previous cases to be reported was that of a woman raped in her flat in Bombay. However, what struck me the most about the reporting of this ghastly crime were the kind of irrelevant and totally inexplicable details that had been provided in the stories covering it on ALL the channels, including NDTV and Times of India. Now if I repeated the details mentioned in the news stories above, I would be guilty of the same crime that I accuse our news channels of- voyeurism of the ugliest kind. Now voyeurism is nothing new, and appeals to the most base of the human instincts, but this kind of voyeurism- of using the details of a rape crime to further your own ends (read advertising revenues), and garbing it as ‘news’ is enough to make one feel sick to the stomach. One look at all the advertisements featured on the Times of India page illustrates this point beautifully: three advertisements for weight loss and one for a dating website, four links showing scantily clad women, of which one points to an article telling you about the ‘five best positions to get pregnant.

Of course, no one bats an eyelid, because everyone is so accustomed to the script. And no one bats an eyelid when, at the other extreme, the gang rape of a Dalit woman is presented as only a caste-issue, where violence against women is merely incidental. There is absolutely no doubt that the rape of a Dalit woman is a caste issue, and in some ways this makes it even worse than other cases. However, we need to understand the motivations of the media by closely examining the vastly different lenses that they use to examine different circumstances surrounding the same crime. The gang rape in Delhi evoked such a public reaction because people could identify with the victim, because they felt that she is ‘one of us’. On the other hand, the detached language and liberal infusion of the word ‘Dalit’ in a story of a woman’s rape in Haryana is designed to create a boundary between the middle-class consumer of news and the lower-caste victim.

After all of this, when the entire country is up in arms protesting about violence against women, our TV news anchors have the gall to sit and preach to the advertising industry, the film industry and everybody on the streets about how they should be conscious about the misogynistic attitudes that they perpetuate and how they should not be selling sex. Yes they should, and yes we should and most importantly- so should you. During the same panel discussion, the cameraman repeatedly picks out and focusses on only the attractive women sitting in the audience. The panel discussion is followed by an attractive model reporting on cricket, and then the ‘news’ switches to the latest scandals from the bollywood gossip industry.

The problem of gender equality and violence against women is so deep-rooted and disgusting, that we need a plethora of changes to make things better. Changes in laws, the police, the judiciary, the legislature, the film industry, the advertisers, the neta and the junta- we all need to change, and quickly. But something desperately needs to be done about the news industry as well. A news industry that has no qualms about using rapes for voyeuristic purposes and beating the drums of war should not even be tolerated, let alone rewarded with higher advertising revenues.

The phone-hacking scandal in the UK and their own crisis involving the news industry finally resulted in a Leveson Inquiry report, which recommended the establishment of an independent regulator (a media ‘Lokpal’) with punitive powers to monitor the media. However, like so many commission reports in India, this report has almost been consigned to the public dustbin in the UK. Thus, what I suggest is not a new law or commission of inquiry- although in a utopian scenario where laws would actually be passed and then not misused, that would be most welcome. I suggest that instead of cursing the rapacious capitalism that has brought us to this juncture, we exercise the only power that it gives us- our power as consumers. If the boycott of foreign cloth could be organized at a time when there were few alternatives, and if it could become a vital part of an independence struggle, there is no reason why a week-long boycott of a news channel cannot result in some drastic changes to its policy, or established (but obnoxious) anchors being replaced by saner faces. In an age where there are unlimited (well, at least 182 other) choices, and where the channel depends more on our TRPs than we do on any one of them, we hold enormous, albeit unrealized power.

In fact, why restrict ourselves to news channels, why should we not boycott misogynistic songs (as was done in the case of the Yo Yo Honey Singh concert), films and consumer-products such as vagina-fairness creams? The relatively short history of the word ‘boycott’ is itself testimony to its power and the all-important distinction between a boycott and a ban imposed by government (or violent organizations such as the Shiv Sena). While the former is a voluntary expression by individuals of their fundamental rights, the latter is a curtailment of the same rights by a bully, and must not be accorded any space in a democratic society. Just as free-speech is a right, so is the right to boycott an organization peacefully, and the judicious use of this right could go a long way in sending a strong message to the powers that shape our society (usually for the worse). However, such a form of collective action is easier said than done, and the first prerequisite is for all the stakeholders to sit at the same table and decide on a suitable first target. Admittedly, the first target may seem to be a scapegoat (as some may view Yo Yo Honey Singh as well), but a strong message needs to be sent, and a start needs to be made somewhere.

One of the only positives of the last two years in India has been the spontaneous outpouring of people on the streets protesting against issues like corruption and gender-inequality, which affect all strata of society. Whatever the criticisms of this middle-class awakening may be, it is undeniable that the protests are linked to a feeling amongst the middle classes that going out onto the streets may make a difference, that their voices could matter. This realization that “collective action” is not just a meaningless phrase, but an instrument of real power, needs to be taken further and used to repair the crumbling fourth pillar of our democracy. For if we don’t act now, we may soon find that the roof has fallen upon our heads.

Proposals to rid India’s penal laws of its colonial antiquity, by itself, as is the case with calls for greater policing, can seem insignificant, and even trivial, when considering a culture that is nourished by brazen chauvinism, but these mores are only enabled and strengthened by laws that are inherently bigoted. Where does, for instance, one begin to explain what “outraging the modesty of women” means? How is it that our laws fail to criminalize marital rape? What does the so-called “two-finger test,” which continues to be used as an evidence collection tool in rape cases, in spite of the Supreme Court’s specific dicta prohibiting the use of its results against a rape survivor, say about our criminal justice system? How does one explain the glaring variances in sentencing based on the victim’s prior sexual history?

All of these obtrusive fallacies in the law have only furthered a culture that actively encourages violence against women. There is an immediate need to shred anti-rape laws of their dogmatist wording and to view rape independent of ideas of “chastity” and “modesty,” which virtually equate the victim to the offender. Rape needs to be viewed for what it is: a sickening act of sexual violence on a woman. In its present form, Section 375 of the Indian Penal Code broadly defines rape as penetration—which has been interpreted by courts to mean the penetration of a woman’s vagina by a penis—without consent. Any act of sexual violence short of vaginal penetration—including oral and anal penetration—is therefore prosecuted either as an attempt to rape or under Section 354, which covers assaults intending to “outrage” a woman’s “modesty”—and is punishable with imprisonment for a term no longer than two years with or without a meek fine. Consequently, to insert a rod into a woman’s body, in the eyes of the law, amounts to nothing more than outraging her modesty, whatever that means. This may appear to some as a mere matter of semantics, but the legislature in retaining laws that are in keeping with archaic notions of “virtue” and “chastity,” is contributing to an acutely dangerous culture. Both of these provisions require immediate rewording. Rape must be defined with greater clarity to include not merely vaginal penetration, but also oral or anal penetration as well as penetration with foreign objects.[1] There needs to be a categorical recognition that rape with an object is potentially as traumatic as vaginal penetration, and the law must also explicitly recognize that the victim isn’t mandated to assert physical resistance to show a lack of consent. The exception to Section 375 must be removed, and marital rape ought to be specifically criminalized within the provision. Further, section 354 must be freed of its antiquated wording, and acts of sexual violence not amounting to rape need to be clearly defined (including criminalization of acid attacks, sexual harassment, groping, etc.) and graded based on levels of harm. That an act of sexual violence against a woman is an insult to her human dignity ought to be uncompromisingly recognized.

Human Rights Watch in a comprehensive 2010 report, “Dignity on Trial,” highlights the anathema of the “two-finger test,” which has come to represent standard medical practice, even though past sexual history has been disallowed in rape trials since 2003. As Pratiksha Baxi points out in this post, and as Jeet Shroff wrote in these pages, the test based on the survivor’s uninformed consent is inevitably introduced as evidence. The practice entails insertion by doctors of two fingers in the victim’s vagina to ascertain whether the hymen can stretch without tearing—as the HRW report showcases, the test is used routinely to determine whether a rape survivor was “habituated to sexual intercourse.” According to the HRW report, since 2005 at least 153 court decisions from 18 different High Courts have cited finger test results or doctors’ opinions about whether or not the survivor was “habituated,” “accustomed,” or “used” to sex. If the law of the land as laid down by the Supreme Court mandates that a rape survivor’s sexual history ought not to discredit testimony, how is it that results from finger tests are customarily introduced as evidence? Over and above being devoid of any scientific weight, these tests are also tantamount to torture—in many cases they can exacerbate the survivor’s trauma by mimicking penile penetration. The two-finger test must not only be banned but also criminalized—it is a damning indictment of a system that is bizarrely prejudiced against the victim.[2]

Finally, a few words on punishment: In the immediate wake of the horrific incident in New Delhi, there has been a clamor to introduce the death penalty, and even chemical castration,[3] for rapists. These suggestions, though, are far from helpful, and do little more than quench a thirst for immediate retributive justice. There is little empirical evidence to suggest that capital punishment serves as a deterrent for future crime, apart from being a state-sponsored abomination. The focus should instead be on the conviction rate. A mere 26 percent of all registered rape cases in 2011 lead to convictions, according to the National Crime Records Bureau, a statistic that is even more appalling when you consider that more than 50 percent of the cases go unregistered. The reasons for the low conviction rate are likely innumerable, but chief among them is the retention of colonial-era laws that place the burden on the conduct of the survivor as opposed to the conduct of the accused.

Setting right the legal system will admittedly only serve a limited purpose in alleviating the larger problem: a society that breeds inequality and contempt for women. There is a shocking lack of participation by women in politics, with more than 90 percent of the seats, for instance, in Parliament held by men. The Women’s Reservation Bill, which will guarantee a certain number of seats for women in the Parliament, has gone nowhere. Female feoticide remains rampant. Girls continue to be criminally undereducated. Our country, more than sixty five years after independence, remains brutally misogynous. That our laws, such as the provisions concerning sexual violence contained in the Indian Penal Code, encourage this culture is shameful. Correcting these, at the very least, may be a step in the right direction.

This is especially true since several of the recommendations the Committee makes are neither uncontroversial nor simply implemented. Radically overhauling the accountability mechanisms for the Delhi Police, the requirement of compulsory registration of all marriages, making the non-registration of a rape case by a police officer an offence, reining in Khap panchayats, advocating political party reform to weed out criminal elements in politics, appointing more judges to prevent delays in the judicial system are all significant systemic concerns whose implementation is a massive task. It is a task that governments in the past, when faced with analogously wide-ranging and comprehensive reform recommendations from committees and commissions, have deftly evaded. There is no reason to believe that the present government will, consciously or otherwise, be any different.

The lessons of history and the memory of the brave victim of the brutal Delhi gang-rape dictate that we, as citizens, must not allow the government to dither on these recommendations this time. We could not have asked for a better foundation than the Verma Committee Report, which, on first impression, provides the structural architecture necessary for a long and sustained struggle to make India respect its women. The struggle will neither be short nor easy. But it must be carried on with patience, dedication and perseverance. Because the primary reason governments have not implemented wise recommendations in the past is not because they have been recalcitrant, evil or lazy—It’s because we have been overpowered by a sense of drift.

To do our part in preventing such drift, at CriticalTwenties, we will be posting pieces at regular intervals on concrete legal, policy and societal changes that need to be taken. Drawing attention to such changes and constantly reminding ourselves of the underlying need to institute real equality is the need of the hour, currently, and will be for the foreseeable future, till the country reflects a semblance of real equality.

The Verma Committee has played its part. It’s now time for all of us to play ours.

[We welcome posts on the issue of concrete legal, policy and societal changes in this context by any interested individual or group. Do send an email with the post as an attachment to criticaltwenties@gmail.com]

]]> http://www.criticaltwenties.in/nationalpolitics/the-verma-committee-follow-up-the-challenge-ahead/feed 0 http://www.criticaltwenties.in/nationalpolitics/india-for-women-open-from-8-am-to-8-pm-only http://www.criticaltwenties.in/nationalpolitics/india-for-women-open-from-8-am-to-8-pm-only#comments Sat, 05 Jan 2013 08:41:40 +0000 Arghya http://www.criticaltwenties.in/?p=5247 [A guest post by Jeet H. Shroff. Jeet is pursuing a Master’s Degree at Harvard Law School.]

The rape of a 23-year old physiotherapist, at 9:30 pm, in a Delhi public transport bus, on a busy route, on a busy day, in spite of the presence of an accompanying male friend, spotlights the shocking magnitude of the failure of India’s law and order situation. But even as we take to the streets with candles and placards, and even as the country’s most powerful figures angrily write letters and seek the imposition of fast-tracked capital punishment, the extent and frequency of the crime begs two very important questions: What took us so long to demand concerted action when such incidents have littered national headlines so many times over the past two decades? And by writing to authorities or demanding capital punishment, why are our elected representatives demanding action from others, instead of spearheading it themselves?

It takes a lot to stir our collective conscience. We are not easily moved – we are so busy living aspirational lives that we are too spent to worry about such mundane things as rapes, that occur according to one estimate, every 22 minutes in India. What’s more, this undying spirit, this unquenchable thirst and need to get on with our lives no matter the odds is a celebrated feature of the ‘New India’ we supposedly inhabit. We have all been representatives, at different times, of the spirit of Mumbai and of Delhi and Kolkata and Bangalore and Jaipur. So when we step out en masse to protest spontaneously, the brutal rape of a 23 year old, we must be really shocked. How else do we explain taking time out from our very busy schedules, to do something that is more than just an outraged Facebook post? Yet, we are all equally culpable in the crime we want punished.

As citizens, we failed our duty to demand change when a sixteen year old girl was raped in Haryana in September this year, allegedly by as many eleven men in unrelated incidents, three separate times, as she tried to escape one set of rapists after another; or when ASI Ravinder Pal Singh died protecting his daughter against an eve-teaser; or when in October alone, Haryana recorded 19 rapes, almost every other day between October 4 and October 30; or for each of the 909 cases of rape reported so far in Delhi and Haryana this year; or when a staggering 22,172 women were allegedly raped all over India in 2011; or when at least 2,13,585 women suffered gender-based crimes across the country in 2010; or when, in 2008, we recorded the third largest number of rape cases anywhere in the world. That these are reduced to mere statistics and that not one of these crimes stirred our conscience enough to demand action as we do now, contributed equally to the fate of the latest victim of our collective indolence.

In April this year, two undercover news reporters spoke to police officers in NCR – Delhi on the issue of the disconcertingly high number of rapes in the capital. In a shocking revelation, most officers revealed deep prejudices that calls into question their very continuance as law-enforcement officers. A majority of the officers suggested that family background, deals gone sour and provocative dressing, were the ‘real reasons’ for the rape. Some called into question whether such incidents were actually rapes – suggesting that in most instances, the victim desired some form of assault or at any rate, provoked it. One officer, mirroring comments made a few years ago by the Chief Minister, proposed a blanket curfew of 8 pm as an absolute time limit beyond which girls should not venture outdoors – so that women must remain indoors after hours, while potential rapists are free to roam the streets. As yet another report surfaced of the rape of a five-year old in Haryana, one must wonder which of these many reasons may have been responsible.

What these responses reveal however is an attitude that suggests that the offense of rape can be mitigated by proof of provocation. Worse, it places the subjective test of provocation on the whim of the accused, so that it becomes the prerogative of the victim to not provoke. Apart from highlighting its sheer inhumanity, these responses betray an attitude amongst the law-enforcement that its duty to protect is secondary to the victim’s duty “not to get raped” so that neither the rapist, nor the law-enforcement is to be blamed when a victim herself contributes to her rape by her choice of dress or her presence outdoors at particular times; an attitude which in other words seems to say, “this country is for rapists – save yourself if possible but don’t say we didn’t warn you.”

Equally guilty are our elected representatives. Their reactions following the incident does little to mask their collective failure. For years now, the people we elected have failed to rise above petty politics to enact tough new laws: on rape – despite a Supreme Court judgment suggesting changes in 1999 and a Law Commission Report setting out the nuts and bolts of how to achieve it, in 2000; on sexual harassment at the workplace – despite a Supreme Court directive following an equally shocking gang-rape of a social activist in Rajasthan in 1997; on stiffer penalties for assaults motivated by communal sentiments; and on the changes to the manner in which rape cases are investigated and the speed with which they are tried.

There is much that Parliament can do which goes beyond letter writing and capital punishment demands. (See this link for two informative posts on Law and Other Things by Mrinal Satish and Prateeksha Baxi) For instance, Bills to sharpen the anti-rape law and enact an anti sexual harassment law are still pending Parliamentary approval. A Human Rights Watch report in 2010 suggests that despite a Supreme Court finding of irrelevancy, the unscientific and degrading “two-finger test” to determine whether the victim was “habituated to sexual intercourse”, continues to remain standard forensic procedure across hospitals in India. And the findings of this test continue to aid defense lawyers in open court proceedings, adding to the humiliation of victims. Enacting laws to make this practice a punishable offense and providing for mandatory in camera proceedings for rape cases is another change Parliament can bring. Finally, there is an urgent need to usher police reforms to bring home that message that no matter the supposed instigation, howsoever provocative, there exists no right to rape and public spaces are not out of bounds for women, at any time of the day or night. As another victim of our collective failure succumbed, the responsibility to bring lasting change lies with us alone.

[The cover photograph is in the public domain and is sourced from the US National Archives and Records Administration]

President Obama in his press conference, a short while after the Newtown massacre, was understandably emotional and visibly moved. Yet, as David Remnick wrote in The New Yorker’s website, what is needed now is more than just raw emotion and mere words, and for the president to act Presidential. Admittedly, viewing the issue in black and white as “guns versus no guns”—as it should be in an ideal world—is impractical from a political perspective. But as mass slaughters transpire like a metronome, with stunning regularity, the least one would expect is a dialogue towards gun control. No longer is there any justification in putting this discussion off on the grounds that it is disrespectful to the departed.

Michael Bloomberg, the mayor of New York, might not be the most likable of politicians. But as John Cassidy rightly points out, Bloomberg, more than any other political figure, has once again called the issue like it is. In response to a question on specific steps that Obama can take given the various limitations (constitutional impediments, a conservative Congress and so forth), Bloomberg had this to say:

“Well, there’s a number of things that the President can do and a number of things that Congress can do. And there are a number of things that you and I can do as voters. What the President can do is number one through executive action, he can order his agencies to enforce the laws more aggressively. I think there’s something like 77,000 people who have been accused of lying when they have applied for a gun permit. We’ve only prosecuted 77 of them.

The President can introduce legislation even if it doesn’t get passed. The President campaigned back in 2008 on a bill that would prohibit assault weapons. We’ve got to really question whether military style weapons with big magazines belong in the streets of America in this day and age. Nobody questions the Second Amendment’s right to bear arms. But I don’t think the founding fathers had the idea that every man, woman, and child could carry an assault weapon.

And I think the President through his leadership could get a bill like that through Congress. But at least he’s got to try. And that’s his job.”

It is easy of course to view this series of mass slaughters as an issue that transcends gun control. Defenders of the present gun control laws, which allow Americans to own semi-automatic guns, such as the ones that Adam Lanza used at the elementary school in Newtown, argue that it is not the guns that kill people, but the people who wield them; that guns protect people more than they kill; and that owning firearms to defend oneself is far too ingrained in American culture to evoke reconsideration. All of these arguments are inherently fallacious and are an affront to a civilized society. In a small provincial village in China, a few hours before Lanza’s attack in Connecticut, Min Yingjun, a deranged man, went on a rampage in an elementary school, slashing twenty-two children and one adult with a knife. Unlike the Newtown massacre, all of them survived. It wasn’t, therefore, as much Lanza’s troubled upbringing that killed the children of Sandy Hook elementary school, as some might be, I shudder to say, happy to point out, as the semiautomatic guns that he fired away with disdain.

The argument that guns are a part of a deep-rooted ethos and that to impose control on possession of firearms would only add to a rancor that would have the U.S. “politically frozen and culturally inflamed,” as Dan Baum writes in a piece for Harper’s Magazine, is of equal moral curiousness. There is of course no denying the basic premise of the argument that guns are a part of American culture—but to not question that culture is reprehensible, and places the U.S. on thin ice as it continues to lay claim to a supposed—illusory—moral high ground.

Since the United Kingdom banned private ownership of handguns and semiautomatics, following the Dunblane attacks in March, 1996, there has been a substantial decline in the country of deaths through firearms. In Australia, likewise, a law banning the possession of semiautomatic and automatic rifles and shotguns, was passed in 1996 following a massacre in Tasmania that left 35 dead. The law, as studies show, has been a marked success: in the decade after the law was introduced, “firearm homicide rate fell by 59 percent, and the firearm suicide rate fell by 65 percent…without a parallel increase in non-firearm homicides and suicides.”

What is curious to the U.S., therefore, is not that it has a specifically high number of people capable of indulging in the most heinous of attacks, but that it continues to take pride in a malevolent culture that encourages people to own a semiautomatic Sig Sauer or a Glock—the weapons that Lanza apparently used on Friday. It must be pointed out that the logistics of implementing a gun control law in a country where there are nearly as many preexisting private guns as there are people would be a huge challenge, but amid this madness, one needs to start somewhere. Banning guns would not make these massacres go away, but that’s hardly an argument against the need for such legislation.

FDI has been thrown like a ball from one side to another in the Parliament. The debate of whether FDI in retail or FDI in general should be allowed in India has been a long-stretched one. With political incentives contaminating economic decisions, our politicians seem to focus more on the words they speak and how they rhyme rather than on the content itself. After much hoo-hah, I am glad that the final decision has been in the right direction, whether by parties politically bailing out the government or by actively supporting the reform, it doesn’t matter.

The big question still remains – will FDI be for the good or for the bad? As with everything else, one can argue in both directions. However, in my opinion, if we want to prosper over the longer term, we have to let go of our attachment to existing systems. The benefits from FDI in multi-brand retail has immense first and second order effects which should not be ignored. Improved infrastructure, increased choice, greater stability and a stronger placement in the global market are just a few of those. India has done well so far in producing respectable growth following the 1991 reforms. But it is time to move on, more forward and higher.

Why are some politicians so against it?

It seems like the politicians who are against this reform are thinking more about themselves than the common man. They have played around with words to show that they are thinking about the public, but it seems like they are more concerned that these foreign companies will not entertain corruptive behaviour, and will not co-operate with political incentives. If Secretary General, Mr. P Chengal Reddy of Consortium of Indian Farmers’ Association, himself says that approximately 50% of the food that farmers grow go to waste due to a lack of infrastructure, and that Tescos and Walmarts would improve the existing system, why are they ignoring him?

So what really are the economic benefits of this?

To start, the larger retail chains are most likely to bring in greater warehousing facilities. One of the major concerns of farmers in the past have been their fluctuation in income due to reliance on weather conditions. During high monsoon periods, many of the crops get destroyed, while during pro-longed dry conditions, crops do not grow. The Tescos and the Walmarts will be able to effectively store crops during times of excess supply, and release them during times of shortage. This will help stabilise the supply of food products, thereby stabilising food prices, both for the farmers (in the form of revenues) as well as for end consumers (in the form of expenditure). We all know that inflation is one of the most important issues facing Indian policymakers today. Given the significant contribution of food inflation to WPI in India, this predictability of food prices will benefit the economy and its people over the longer term. The RBI will be able to focus monetary policy on more constructive issues, rather than scrambling to keep inflation under check. And hopefully, the foreign media will finally stop resisting India due to its ’unpredictable’ inflation.

As for the consumers, traditional economic theory suggests that more variety leads to higher utility and happier consumers. Products currently unavailable at a reasonable cost in India would become available through these multi-brand retailers. In a previous post on C20sit was recognised that the fear that multi-brand retailers would increase prices after driving the kirana stores out of business does not conform to international experience. In my opinion there is enough competition within the global multi-brand retail market, that market forces would not allow excessive prices to persist. And in the end, its the consumer’s choice. If they prefer their ’kirana’ stores, they may still go there.

What are people scared about?

That these multi-brand retailers will drive out the ‘kirana’ stores? The kirana stores are spread across the city and town, within residential areas and cater to families who need their groceries fast, nearby and at short notice. It is always going to be easier to go down the road to pick up a packet of daal or a few vegetables rather than travel to a multi-brand retail shop. We already have domestically owned supermarkets like Spencer’s and Food Bazaar which are co existing with the kirana stores. So why now with the introduction of Tesco and Walmart would these stores go out of business? If anything, the inefficiency and lack of customer relationships displayed by Spencer’s and Food Bazaar would be improved as a result of competition in multi-brand retail. And for those who prefer the personal touch when buying their groceries, they could still go to the kirana stores.

These were only the first-order benefits. The second-order benefits extend to the wider economy. Improved infrastructure, increased employment, increased investment, increased productivity, stronger Rupee, more stable inflation…the list goes on.As a final thought, if there are concerns about farmers getting the stick while the foreign investors keep the carrot, it is possible for the government to introduce regulation which protects the farmers to some extent while giving the investors enough scope for making the investment commercially viable. One policy option is to introduce minimum prices multi-brand shops have to pay farmers. This would provide a revenue floor for the farmers, protecting their income levels. It should however be preferred that market forces determine prices.  More details and recommendations on policy options will follow in my next article.