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Courtesy: Amit Dave: Reuters
 
If Black people had accepted a status of economic and political inferiority, the mob murders would probably have subsided. But because vast numbers of ex–slaves refused to discard their dreams of progress, more than ten thousand lynchings occurred… Whoever challenged the racial hierarchy was marked a potential victim of the mob.  The endless roster of the dead came to include every sort of insurgent — from the owners of successful Black business… to those who refused to be called ‘boy’ and the defiant women who resisted white men’s sexual abuses. Yet public opinion had been captured and it was taken for granted that lynching was a just response to the barbarous sexual crimes against white womanhood. And an important question remained unasked: What about the numerous women who were lynched – and sometimes raped before they were killed by the mob.
— Angela Davis¹

My heart is sickened, my soul wearied, my shoulders aching with the burdens of guilt and shame… I force myself to write a small fraction of all that I heard and saw, because it is important that we all know…What can you say about a woman, eight months pregnant who begged to be spared. Her assailants instead slit open her stomach, pulled out her foetus and slaughtered it before her eyes?…What can you say?… I have never known a riot which has used the sexual subjugation of women so widely as an instrument of violence as in the recent mass barbarity in Gujarat. There are reports everywhere of gang rape, of young girls and women… followed by their murder by burning alive, or by bludgeoning with a hammer and in one case with a screw driver.
— Harsh Mander²  

Two different cultural divides, one of race, the other of religion, situated within two great democracies of our times. Both ensure equality before law and equal protection of law and proclaim non–discrimination on the grounds of race, caste, sex, and religion. The conjunctures and parities in the way the language of rights unfolds within them is the focus of this essay.  

The vocal, visible and highly articulate women’s movements in both countries, the United States and India, have contextualised gender concerns and examined the overarching influence of patriarchy upon the lives of women. State interventions have been invoked through sustained campaigns to release women from its clutches. But how has this articulation addressed concerns of women who are at the margin of social boundaries, whose reality is marked not only by patriarchal dominations but also by racial, religious and caste prejudices?

Within a hierarchy of social relationships, gender concerns are articulated from the context of the mainstream — for India, it is the Hindu woman and for the West, the White woman. A slogan coined by women of colour in the US succinctly captures this reality:  All women are White, All Blacks are men… but some of us are brave.   

What is worse, even when gender concerns of the marginalised women hit the headlines, they do so primarily to strengthen the prevailing stereotypical biases against the community at large. Rather than the explicit pro–women concern, what gets foregrounded is the anti-community undertone. No other example can better serve to explain this, than the Shahbano controversy.  

The controversy arose out of a Supreme Court ruling in 19853  which upheld the right of a divorced Muslim woman for maintenance. The adverse comments in the ruling against the Prophet and Islam led to a backlash and a demand for separate statute based on Islamic jurisprudence. The then Congress government gave in to the pressure exerted by the Muslim fundamentalist lobby and enacted the Muslim Women’s Act in 1986. But over time, this statute, advertently or inadvertently, bestowed upon Muslim women, a superior economic right than the one enshrined in S.125 CrPC. But despite this, for well over a decade, the statute enacted amidst protest from human rights and women’s groups, was viewed as a marker of ‘Muslim appeasement’ and a defeat of secular principles within the Indian polity.   

The denial of rights of a meagre maintenance dole was lamented by all and sundry, notwithstanding the fact that the maintenance awarded to the wife of an advocate with a flourishing practice was just Rs.25 in the first instance and Rs.179 upon appeal. So long as the debate could be used as a stick to beat the community with, these minor details didn’t seem to matter. What did matter is the fact that a communal campaign could be mounted upon a patriarchal paradigm and thereby legitimised. The irony lay in the fact that the groundwork for mounting this campaign was laid by the women’s movement, with genuine gender concerns, but firmly located within the cultural ethos of the mainstream. Within this framework, a similar appeasement of Hindus, by strengthening coparcenaries4  by various legislative measures went unnoticed.

Even when gender concerns of the marginalised women hit the headlines, they do so primarily to strengthen the prevailing stereotypical biases against the community at large. Rather than the explicit pro-women concern, what gets foregrounded is the anti-community undertone.

The communal fervour could be sustained only by denying the fact that the Act provided for an alternate remedy, far superior to the one that had been denied to Muslim women; by negating the fact that since 1988, the Act was being positively interpreted by various High Courts in the country by awarding substantial amounts as ‘settlements’; by glossing over an important development in the realm of family law, that of determination of   economic entitlements upon divorce, rather than the prevailing right of recurring maintenance.

So even while homes of poor Muslim women were looted, gutted and razed to the ground in various communal riots which broke out in the country in the post-Shahbano phase, while teenage sons of Muslim women were killed at point blank range in police firings, while Muslim women were raped under floodlights in post-Babri Masjid riots, the mainstream continued to lament over ‘Muslim appeasement’ and denial of maintenance to  ‘poor Muslim women / the Shahbanos’.    

One could overlook even this. Perhaps there was a justification. Denial of maintenance by husbands was as loathsome as rape of women in communal riots. In the ultimate analysis, it was the Muslim woman who suffered. So far so good. But how can one logically explain the recurring motif of ‘Muslim appeasement’ even after the Supreme Court decision in the Danial Latifi5  case, when the controversy was finally laid to rest by upholding the Constitutional validity of the Act? Yet, the rhetoric continues.
The symbolism becomes even starker, when one is confronted with the gruesome sexual violations of women during the recent Gujarat carnage. While exploring possible legal portals to place these blood–curdling barbarities, one hits a dead end at each turn.  As one hears the narratives of young women, running helter-skelter, slipping, falling and becoming prey to the marauding mobs, their violated and mutilated bodies being thrown into open fires, the question keeps haunting: where and how does one pin the culpability?

When violence of this scale supersedes the parameters of criminal jurisprudence which is bound by conventions of proof and evidence, medical examinations and forensic reports, when criminal prosecution itself is a closed-end process in the hands of the state machinery, what legal measures can be invoked to bring justice to the dead and the surviving? But the danger at the other end, if these violations do not form part of  ‘official records’ they can be conveniently negated as NGO exaggerations or normalised as routine occurrences as our defence minister, George Fernandes did, on the floor of the Lok Sabha during the marathon debate on Gujarat.  

The official discourse is geared towards denial. Uma Bharati, the woman minister of the NDA government, (who had cheered and goaded the crowd while the Babri Masjid was being demolished) asked in feigned disbelief, “Who is she whose stomach was slit and foetus taken out? No one has heard of this woman. She is a fiction created by the media.”     

A further report by another statutory body, instituted presumably for the protection of women, the National Commission for Women, continued with this denial mode. In a cursory report, brought out after the commission’s whirlwind tour of the riot torn state forty days after violence broke out, it gave no details of sexual violence on the pretext that media and fact–finding teams had already done so. A member of the team, ironically a former women’s movement activist, further trivialised this through a newspaper report, by stating that only three women admitted to being raped. A cultural argument was advanced that Indian, subcontinental and even Asian women are reluctant to admit rape as it may result in abandonment. Within this cultural reality, should women be forced to share their experiences, she wondered.  

The entire logic and rationality of the anti–rape movement gets turned on its head here. The catalyst for that inspired campaign of the ’80s was an isolated incidence of rape by   state functionaries. The author of the article was one of the signatories to the open letter to the chief justice to reopen the case. It was this open letter, which turned Mathura into an icon of the movement. One wonders whether permission of this poor, orphan, rural, tribal young woman was ever sought before writing off the open letter. Mathura, Maya Tyagi, Rameezabi, Suman Rani, Banwari Devi, Kuntaben — all individual cases. Here the numbers did not matter. Each isolated incident was sufficient to trigger a national campaign for law reform. But when it comes to state complacency in communal carnage, when sadistic gang rapes and brutal sexual violations are buried under a more grievous and yet, more acceptable crime of murder, one tends to resort to a game of numbers. How many more young girls’ vaginas need to be slit open, how many more rods need to be inserted into as yet unformed uteruses, how many more foetus’ have to be gorged out of the bellies of pregnant women, for the state administration to take serious note of the scale of sexual violence on minority women?

The genocide in Gujarat, as well as the earlier communal riots, have taught a painful lesson to Muslim women — that when threatened with a life and death situation, in the face of blood–thirsty and sexually debased mobs, mosques, dargahs and madrassas are transformed into an oasis of security and solace. The secular and women’s rights voices are too distant from their harrowing realities.

The genocide in Gujarat (as well as the earlier communal riots) have taught a painful lesson to Muslim women — that when threatened with a life and death situation, in the face of blood–thirsty and sexually debased mobs, mosques, dargahs and madrassas are transformed into an oasis of security and solace. The secular and women’s rights voices are too distant from their harrowing realities. Communal and patriarchal identities get forged.

Women in relief camps narrated incidents of camp organisers helping out, not only with arrangements of food and first aid, but also with cleansing bleeding wounds on private parts and extracting wooden splinters buried into the deepest crevices. While women gave birth in the open in those traumatic days, they were forced to help in the birthing process. Before government aid could be accessed, hungry children were fed only through hurriedly put together community resources. Women partook in the festivity of marriage celebrations of young orphaned girls, arranged by camp leaders. They cried out, when the men were picked up in combing operations and bore the brunt of police brutalities. The bonding between people under siege is cemented through the adhesive of shared fears and sufferings. In the struggle for day–to–day survival, gender concerns and patriarchal oppressions seem remote, which in the long run will weaken the fight against patriarchy.

How should concerned groups within civil society respond to this social and political reality? When the moral basis for the rights itself shifts, where can one start the process of renegotiating and reframing the covenant of equality and equal protection? What are the myriad ways in which the seemingly innocuous laws get unfolded within the complex terrain of social hierarchies?  These are difficult questions.

Angela Davis is perhaps one of the first scholars to raise some of these difficult questions. She explains how the hard won abortion right of the White women’s movement became a draconian measure of state-sponsored genocide for women of colour. Within a racially tinted population policy of the US government, involuntary sterilisations were used for mass birth control of black and coloured and Native American women.  In her own words:

“It was not until the media decided that the casual sterilization of two Black girls… was a scandal worth reporting that the Pandora’s box of sterilisation abuse was finally flung open. But by the time the case of the Relf sisters broke, it was practically too late. It was the summer of 1973 and the Supreme Court decision legalising abortions had already been announced in January. Nevertheless, the urgent need for mass opposition to sterilisation abuse became tragically clear. The facts surrounding the Relf sisters’ story were horrifyingly simple. (The sisters) aged twelve and fourteen had been unsuspectingly carted into an operating room, where surgeons irrevocably robbed them of their capacity to bear children.”⁶   

By 1976, 24% of all Native American women of childbearing age had been sterilised. A Choctaw physician told the senate: Our bloodlines are being stopped…Our unborn will not be born… This is genocidal to our people^.7
Picking up cudgels with the anti-rape movement, she explains that the myth of the Black rapist is located within insidious racist ideology and women of colour, for their own survival, had to stick with their men to explode the myth. Susan Brownmiller’s⁸  discussion on rape and race evinces an unthinking partisanship which borders on racism:

“Given the central role played by the fictional Black rapist in the shaping of post-slavery racism, it is, at best, irresponsible theorizing to represent Black men as the most frequent authors of sexual violence. … (It) is an aggression against Black people as a whole, for the mythical rapist implies the mythical whore. Perceiving the rape charge as an attack against the entire Black community, Black women were quick to assume the leadership of the anti-lynching movement.⁹
The historical knot binding Black women —  systematically abused and violated by White men — to Black men — maimed and murdered because of racial manipulation of the rape charge — has not been adequately analysed by feminist theorists during the anti–rape movement in the US, she laments.

Covenants of equality and equal protection may unfold diagonally opposite trajectories for the mainstream and the marginalised. Within the Western women’s movement, several Black feminist scholars, Martha Fineman, Patricia Williams, Toni Morrison, to name a few, have challenged the theories advocated by a predominantly White women’s movement and have attempted to rewrite the covenants of equality and equal protection, within the alchemy of Race and Rights.

The women’s movement in India has continued in its scholarship primarily within the ethos of the mainstream, though there are some tentative formulations, which are yet to be evolved into complex feminist theories. The challenge for the feminist legal scholarship in India is to develop a new praxis within which the covenants of equality   and equal protection can be rewritten in the context of the marginalised.     

Footnotes
 1  Women Race & Class Vintage (1983) p.190-1.  
 2 ‘Cry My Beloved Country’, The Times of India, March 20, 2002.   
 3  Mohd Ahmed Khan vs. Shahbano Begam, AIR 1985 SC 945.
 4  Coparcenary is the term used for Hindu Undivided Family  (HUF) properties within which inheritance rights are confined to male heirs.
 5 II (2001) DMC 714 (SC).
 6 Supra n.1 at p.216.
 7 Ibid p.218.
 8 Against Our Will, Men, Women and Rape Penguin (1975).
 9 Supra n.1 p.191.

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