All crimes are crimes against the state: Kalpana Kannabiran
Kalpana Kannabiran on women’s issues and the efficacy of the legal framework in addressing them
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The alleged rape and murder of two teenage girls in Badaun, Uttar Pradesh, in May, despite a near overhaul of the criminal law to prevent such crimes, has once again put the spotlight on sexual violence.
There is a school of argument that there are enough laws in the country to prosecute the perpetrators, but that the authorities come up short in implementation.
Sociologist and lawyer Kalpana Kannabiran , editor of Women and Law: Critical Feminist Perspectives, and director of Hyderabad-based Council for Social Development, speaks about women’s issues in an interview. Kannabiran is a recipient of the Rockefeller Humanist-in-Residence Fellowship at Hunter College, City University of New York, and won the 2012 Amartya Sen Award for Distinguished Social Scientists. Edited excerpts:
After the twin rape and murder in Badaun, where are we on women’s rights?
We are on a negative balance. It seems as if we make a little headway and just as we get a wee bit complacent about making headway—cases will now actually get tried in court and judges will miraculously begin to have a better understanding of issues and so on—you come up with an incident like Badaun, which takes us back not just years, but centuries.
Is that because of the violence involved or also because of the caste factor?
There is no “also”; it is the caste factor and that is it. Caste violence functions through very deeply entrenched forms of sexual appropriation. So, this is not just sexual assault, which also had a caste angle; this is caste violence and caste atrocity.
The technicality of law is not as relevant as trying to understand the structure of a particular atrocity. What is it that seems to make it so inescapable? What conditions responses to it? When the 2012 incident (of rape and murder of a student) happened in Delhi, there was discussion on how many people—who poured out on the streets (in protest)—would actually come out (similarly) if Dalit girls are assaulted in that manner or if the assault is part of a caste atrocity? You will not have that kind of outpouring. There is a sense in which you very quickly move into “official commissions” and “official fact finding”. There isn’t that rage and that is deeply problematic. It is almost as if being inured to that particular form of violence...
In this context, how much change do you think the Criminal Law (Amendment) Act, 2013, is making?
The enactment is a good step, but it is too early to tell. We are talking about change at the trial stage; cases take months and years to come to the trial stage. Policemen from the thana (police station) level to the DGP (director general of police), judges, magistrates, lawyers need to understand it.
I also would not judge the amendments to the criminal law by the absence of action in this particular case. The absence of action is not a sign of the Act failing, it is a sign of entrenchment of caste ideology. It is not an accident that the policemen belong to the same caste as the perpetrators.
While the law has become more gender-sensitive, do you see the judiciary developing a similar approach?
It is implausible. I have a sense of how long judges take to understand legislations that have been on statute books for a long time. This has to enter professional sensibilities at the every level... It cannot depend on five gender-sensitive advocates pushing judicial academies to have two-hour sessions on “gender violence”. You have to have retraining of the judiciary.
The point is there is simply no accountability or transparency. I am worried about how little impact we seem to be making.
Within the political class, we find that key legislation such as the one protecting women from domestic violence was passed without any questions being asked; the legislation proposed by the first National Democratic Alliance on the issue had provided “self defence” as a plea for the accused. What does this indicate?
It is not surprising at all. Whether it’s the political, judicial or administrative class, whichever of these people charged with political responsibility, they are soaked in a particular ideological framework. There has to be a way to tell them we don’t care about the ideological framework, the Constitution is non-negotiable and justiciable, so you will act according to the Constitution. You have to peg it somewhere.
For instance, (Samajwadi Party leader) Mulayam Singh (Yadav) saying “boys will be boys”, I think there should have immediately been criminal action against him, but we don’t even have the wherewithal to institute that. It is a speech which is derogatory to the dignity of a class and you are in charge of a major political party in one of the biggest states in the country (Uttar Pradesh).
How are you going to be called into account (for) such a statement? You have to peg it at the end of impunity. If we make the end of impunity non-negotiable, the change in thinking will come about—it has to. People will begin to understand that you cannot get away with this behaviour. But there is complete impunity where patriarchy is concerned.
So, the Parliament, judiciary, administrative services are the same. And not accidentally, all of these are spaces that actively obstruct women from coming in. For the last 10 years, the Committee on the Elimination of Discrimination against Women has been raising a query about women’s absence in Indian judiciary and we are still celebrating the fact that the Delhi high court has its first woman chief justice. It is really a shame. This should have happened long ago—what are we celebrating?
In legislative and judicial discourse, women’s rights are circumscribed by arguing about “privacy of homes”. The judiciary has even said that constitutional rights do not have a place within the confines of a home. Your thoughts.
The Delhi high court’s decision (comparing constitutional rights of women within homes to) “bull in a China shop” is a blot on the Indian judiciary; a blot that they are going to take a long time living down. Feminist movements worldwide began with the slogan “the personal is the political” and the reason is that the most serious, most gruesome forms of violence take place within homes, with complete impunity.
The Constitution speaks about equality, right to life, non-discrimination; it nowhere says that the right to non-discrimination will be tempered by respect to privacy. The home is private till it is based on mutual respect and dignity. The moment there is a breach of faith, the home is public. All crimes are crimes against the state. Commission of crime does not lend itself to the argument of private and public. Every crime is a crime against the state. When you say the home is private, you are actually saying that women in the home are less human or not human. As per the Constitution, rights accrue to all persons, so if you say rights do not accrue in this space, it means that the person who needs the protection of this right is a non-person.
How do you view the judicial stand recognizing particular rights of one minority i.e. transgenders but not another i.e. homosexuals?
The judgment on transgenders is simple—recognition that these people constitute a category of persons, like men and women. It is equality based on sex but when it is homosexuality, you are actually saying that sexual choice can be exercised with freedom in ways that completely interrogate monogamous heterosexuality. When talking about transgenders, you are not talking about sexual control and choice; you are talking about personhood. But homosexuality is about sexual conduct, sexual autonomy and sexual control. And for a country like ours, judges, parliamentarians and people in governance, the kind of mindset they have, they have not begun to recognize women’s rights as “persons”, they still talk about women as objects and chattel slaves. So I am not surprised that they are hostile to homosexuality but that doesn’t mean we allow it. There are non-negotiables that they have to comply with irrespective of their beliefs.
The essential difference is between a fairly straightforward right to personhood and the second (aspect) goes a little deeper into what are the ingredients of the right to personhood? Now the question is: having recognized transgenders, can you criminalize homosexuality? This is the challenge before courts. As long as transgenders are not recognized, you can criminalize homosexuality but now what are they going to do? Now you have recognized transgenders on par with male and female. So, on recognizing male and female, you recognize heterosexual union. But having recognized transgenders, how is that recognition going to affect your judicial decision on sexual relations? That is the test.
The language of judgments, even when pro women, is very protectionist. The tone is not of empowerment but of protection. Your thoughts.
Yes, that is why we need massive training of judges, actually de-schooling. They grow up in an environment where they imbibe these values. There is a need to tell high court and Supreme Court judges that they need to have an understanding of gender politics if they are to do any justice at all. They don’t seem to get this message and so they are stuck in an “honour” discourse—we find this with many women judges as well. Recently I talked about sexual harassment cases (that) had come up with interns and these (Supreme Court) judges. I had a high court judge say “we have to be patient, we are talking about centuries of subjugation, it will take time that encrusted subjugation to get reversed”. I say, as a constitutional authority, you really have no business saying that. We may have centuries of subjugation but after 1950 we have a constitution. And your business is not to say “men will be men and they will change slowly”. We cannot wait for centuries for men to change.
What do you perceive as the biggest challenge to women’s movements currently?
How are we going to deal with sexual assault? What are we going to say differently that we may actually be able to stop it?—that is the single biggest challenge. After saying and writing all of this, the cases are so repetitive and cyclical and in such familiar mode that we thought we had displaced. How are we going to actually make a difference? That is also tied to the larger question of how are we going to make a difference to mindsets that are patriarchal?
Mapping the feminist movement in the country, what do you see as outstanding successes?
I never think in terms of successes because I think that failures are as important. It is very difficult to judge movements in terms of failures and successes. The useful parameter is how much has the feminist movement shifted in understanding of “dignity”—If one takes dignity as a core attribute, how much has the feminist movement been able to bring about a consciousness of dignity? I think there has been a very rich dialogue and theoretical output from the movement that has helped us to rupture a presaged complacency. The signs are more and more in the younger generation who may not espouse feminist theory but they have imbibed the value. So there is an intolerance to getting groped on the street, there is an anger about how someone is treated. The threshold of tolerance of any form of indignity has certainly dropped. Also, more and more people at least find it necessary to pay lip service to gender issues because before even that was not there. Even those who do not have an understanding, have to acknowledge that these are issues that you must address. All of this is because of the kind of huge output of the feminist movement—that is the success.
Just the fact that a handful of women, across the last century—and what have been the odd against us in our family, in the institutions in which we studied, worked, where we have been writing and speaking in a particular way—with all of those odds, you actually managed to put out a tremendous wealth of information, perspective, theoretical understanding of what exactly is wrong and where the problem lies. That entire corpus is there to stay and that will be the basis for education of future generations.
Could you elaborate on the understanding of “dignity”? Do you think that there has been a shift in its understanding within the feminist movement?
Basically dignity means life with dignity which includes the right to integrity, autonomy, to be free of any control or appropriation, to be able to determine the course of your life fully. I started with this understanding 30 years ago. What has actually shifted is perhaps the understanding that the right to dignity itself is an intersectional one-so, you cannot have dignity as an individual if your collective is subjected to targeted assault, then your own individual right to dignity is forestalled. For instance, what does the question of self respect mean for a Dalit woman? So, I think that constant growth of sites of dignity and intersection—there has been a proliferation of those sites, constantly adding on levels and layers of consciousness.
Khyati Behl contributed to this story.
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