Mrinal Pande 
Rape is not just an act of violent intercourse without consent. It can not be treated as an isolated incident or mere moral transgression or an individual relationship gone wrong. It is an act of terrorism within a systemic context of women’s subjugation within homes, polity and institutions of state. But in media reports, op-eds, columns, judgments, parliamentary debates and endless panel discussions among opinionated opinion makers, one notices a strange ambiguity that mars our assumption of judicial neutrality. We have a Kolkata judge tell women to prevent being raped they must hold back their uncontrolled sexual urges. A Baba saying if a woman is alone with her rapist she should touch his feet, call him bhaiya (brother) and ask to respect a sister’s honour, and a senior politician saying that girls have no business being out on streets after dark unless chaperoned. Even from candle marchers in streets it is not unusual to hear tearful voices saying now the poor girls’ entire life would be stigmatised, who will marry her after her ‘izzat’ has been looted?
Illustration: Pariplab Chakraborty
The result of all these contrary attitudes is inordinate delays. When cases reach the courts, we see lawyers exploit ambiguities that remain even after several amendments, questioning the act of rape itself. Sex will not be deemed a crime if the perpetrator can establish it was intercourse with mutual consent. Women considered different from men, because of their bodily functions like menstruation, is used similarly in a relatively innocuous case like allowing young women to enter a particular temple or mosque or shrine. The bipolar view is common to both male and female members of various bodies of state. There has been a case where the sole woman judge on the bench put in a dissent note, linking the traditional denial of temple entry to socio-religious taboos that were above rational thought and so must not be removed on Constitutional grounds.
The root cause is our attitude towards females vs males. As a result, there are unbelievable debates: Is a raped woman or female child basically a genderised body and thus to be treated differently from a male? Or is she a citizen of India under a Constitution that forbids discrimination on grounds of gender?
It was this we saw when the Nirbhaya case was being adjudicated upon. The fact that one of the male perpetrators was a juvenile sparked a lengthy debate. Could he be given a death sentence like the adults whom he joined? Or should he be counselled and sent to a remand home?
In another recent case, a man and woman were both convicted by a court of law for having married when the woman was a minor. The fact that she is now a 20-year-old and says it was a love marriage and that she stands by her husband was put aside.
Such discrimination based on gender, along with the frequent release of politically well-connected male perpetrators after serving short jail terms and being publicly welcomed by political parties, has silenced many fearful victims and witnesses, undermining numerous cases of severe molestation.
In Haryana, a Commonwealth Games gold winner like Vinesh Phogat and other women wrestlers levelled serious allegations of sexual misconduct against former Wrestling Federation of India chief Brij Bhushan Singh who was also ruling party MP at the time. The system first turned its face away, and when the wrestlers persisted, bared its fangs. Women members of the party, who had brought down a Delhi chief minister when the Nirbhaya case happened, stayed mysteriously silent. Ultimately, what helped Phogat and her fellow wrestlers gain public attention was not her excellence as a sportswoman, but images of her being dragged on the street by the police. When the opposition picked up on these, the discussion quickly took on a political slant, and the core question – whether politicians should be heading independent sports bodies at all – was soon lost.
Unsurprisingly, through this entire period, proven rapists with political links got exonerated or granted easy parole and furlough. At this point, a liberal legalism looks as though it is mostly a construct of a well-networked male power elite that has created and supported racism, casteism and sexism ever since Independence. These are three powerful levers that perpetuate male dominance, making it invisible and legitimate.
“With all the historical baggage we carry,” writes the late justice Leila Seth in her book Talking of Justice, one of the truly emancipated legal minds India has produced, “it is difficult to understand and appreciate true equality. ..there are no definite parameters. What might have looked just and fair a century ago, in the manner of the treatment of women, no longer looks just and fair..”
Both the recent Kolkata and Thane cases of sexual assault, confirm how easy it is for a perverted perpetrators to stalk, access and overpower his female victims. It is equally hard with the traditional male-dominated networks to easily sort cases regarding 50% reservations for women, or young women’s right to visit certain holy places or decriminalising LGBTQ marriages and criminalising marital rape. “Cracks are still showing,” Fali Nariman, one of India’s leading legal minds, had said while congratulating the Justice Verma Committee for revealing them efficiently and eloquently.
Reports like that, social media and a few good verdicts have given women a jurisprudential opportunity through a crack in the wall between law and society to get heard. But threats are many. Today our laws for freedom of speech protect male stalkers and party-paid trolls in cyberspace, making unmentionable threats against women who dare speak up. Our laws on privacy still largely hold that within conjugal bedrooms, sex is always consensual and so law refuses to recognise marital rape. Our laws of child custody similarly help the male partners more since they usually have better means, incomes and social status.
It is time the system and citizens’ bodies rooting for women’s empowerment looked into the eyes of a Vinesh Phogat or parents of the grievously injured four-year-olds, and carried out a meticulous check upon the scared victims of rape who have withdrawn cases, and upon Babas who are brought out on parole in lieu of rounding up vote banks. Unless the contexts that provoke and empower sexual predators are not removed and restructured, even the most progressive laws will only scratch the surface .
It is time we realised that our real goal should not be to create committees to protect women in selected professions. We should hold up Indira Jai Singh and Vrinda Grover as beacons of hope because they have, even at a certain cost to their careers, confronted our lawmakers and jurists while helping victims enter the recently created cracks in the law and share first hand information about their own unique perspective on social reality.
Mrinal Pande is a writer and veteran journalist.
Saakhi is a Sunday column from Mrinal Pande, in which she writes of what she sees and also participates in. That has been her burden to bear ever since she embarked on a life as a journalist, writer, editor, author and as chairperson of Prasar Bharti. Her journey of being a witness-participant continues.