A recent incident in a village close to Jaipur, the capital of the western state of Rajasthan, is a telling statement on the faith that the general populace has for the judiciary. When a woman's mutilated body was found in a remote area of the village, the villagers decided to take the matter into their own hands. Suspecting a rape prior to the murder, villagers strip-searched each male member in the village between the ages of ten and sixty – including the panchayat (elected village council) members themselves – for any tell tale signs of a struggle indicating rape.
While this practice can definitely not be recommended for many reasons and especially in the increasingly dangerous context of people meting out justice through kangaroo courts, it is difficult to ignore the fact that every male member in the village was treated as a prospective rapist to solve the murder of a village woman. That is something that most laws on rape, in practice, have failed to do – to treat the victim and shift the focus of proving innocence upon the supposed aggressor.While there have been amendments aplenty in laws meant to protect women and their rights – economic, social and political – what is really important is how much these amendments are able to do in practice – at the level of interpretation – on ground. Given the social complexities of the Indian polity and its inherently accepted patriarchal practices, even redressal of her grievance – especially if it is against a family member – moves into the ambit of an emotive argument where the woman very often would choose to drop the case against her husband or in-laws to avoid a "bad name" for the family. And let us not forget that the Indian woman's strength and infinite ability to bear any ordearl have been eulogized in one mythological story after another, ensuring that she does not have very far to look for inspiration.
Domestic violence against women was deemed illegal under a law passed in 1983. Yet the efficacy of the law can be gauged from the number of cases of domestic violence that the Indian judiciary has had to deal with since the passage of the law. The reality of domestic violence gets starker only when one hears of abuse of women belonging to the economically privileged sections of the Indian society – the educated elite. The increase in cases of domestic violence against women in tandem with their relative progress professionally really breaks the now worn-out excuse of domestic violence being a phenomenon of the less-privileged sections of the Indian society. With social parameters, norms and tradition guiding the actions of women most of the time, domestic violence has been accepted from one generation to the next almost as a marital right of the husband. Marital rape and abuse till recently did not even cause a blink on the radars of political and judicial discourse. For the first time in six decades, only last year, the Indian law recognized marital rape, sexual, emotional or verbal abuse of a woman by her husband as a crime committed against her, the first instance of her finding legal recourse for extreme abuse from within the safe realms of the home.
According to a UNPF report, more than two-thirds of the married women in India in the age group of 15 to 49 have endured repeated beatings and rape and provided sex under coercion. And this becomes particularly important in the context of their sexual health especially in view of the fact that a substantial percentage of positive women are married. Many of them actually contracted HIV – apart from a host of other sexually transmitted diseases – from their husbands without the knowledge of the medical history and/or sexual practices of their spouses. What the new law attempts to change would have been otherwise impossible earlier – to prosecute a man for raping his wife – as it was considered to be within his conjugal rights. But there is a more significant entitlement, especially in the context of the rate at wives are abandoned or thrown out of their marital homes for reasons ranging from the inability to bear a male child, not getting enough dowry, and more recently for having HIV (which, in most cases, she would have contracted from her spouse). With financial security and economic dependence guiding their actions, women are generally afraid to register cases due to the risk of losing their husband's financial support both for themselves and their children. This law does ensure medical costs from the (abusive) husband as well as a share of his earnings and property for the victim and it guarantees the wives the right to continue living in the family house. But the ambit of law stops short at the level of interpretation as witnessed in some recent judgments, which when used as a precedent for other cases ends up subverting this very protection that the law offers in theory. Moreover, concerns will always remain despite new laws and fresher amendments since many cases of abuse, like rape and dowry harassment/deaths will still go unreported, unless societal attitudes undergo a change.
And even as advocates of women's rights, the judiciary, and society at large jostle for their space and struggle to reduce the gaps between age-old social practices, progressive laws, and their eventual implementation in the real world, the government has made another announcement. Its decision to make it mandatory that only women judges will hear rape cases has divided the legal fraternity on the efficacy of such a law and whether it will help the victims. The question really is have we come to a point where the solution lies in removing men from all discomforting positions and implanting women in their places; does the solution lie in disengaging from men; are women to be protected from the streets by keeping them indoors? Or does the solution lie in working towards a more sustainable albeit slower process of reformation of redundant, regressive and repressive social mores and practices whose only role has been in institutionalizing the suppression of particular segments of society?