The protests against the brutal rape and murder of a doctor on duty in the R.G. Kar Hospital in Kolkata have been slowly organising themselves along occupational, caste and class lines. This points to a fundamental question at the heart of combatting sexual violence in India: how do legal and social systems that are tailored to think in terms of groups and group rights operate when tasked with preventing sexual violence, which is a violation of individual bodily autonomy.
In his analysis of the differences between modernity in India and the West, Sudipta Kaviraj points out how European nation states that formed in the 19th century shared certain developmental commonalities that preceded the arrival of full liberal democracy – they had experienced industrialisation and the consequent rise in individualism and were often (though not always) religiously and linguistically homogenous. In India, democracy arrived in a largely pre-industrial society, with social behaviour stringently regulated by caste and communal groupings.
This meant that the liberal democratic values which we “gave to ourselves” via the constitution, which centred individual rights, often needed to be modified as they were applied to a society that still operated on the basis of traditional groupings. For example, the framers of the constitution recognised that beyond guaranteeing equality at the individual level, the constitution would also need to contain specific permission for affirmative action targeted at bringing about equality among groups.
When this process is applied to the legal framework combatting sexual violence though, we see women’s rights as individuals on paper, including the right to consent to, or withhold consent for, sexual intercourse becoming subsumed into a wider understanding of women as the communal property of one or the other social group.
This framing of women as communal property dictates the reporting and discussion of gender based violence in India. By all accounts, rape in India is severely underreported. Based on 2015 NHFS data, analysts have calculated that nearly 99% of sexual assault goes unreported in India. Even when marital rape and assault are removed from the analysis, about 85% of sexual violence is unreported. A large percentage of these cases likely involve perpetrators from within the same caste or social grouping as the survivor, including other family members or acquaintances. In these situations, matters are often handled within the community itself and justice takes a back seat to considerations of family and community honour. In the rare situations that such cases are reported, these community led negotiations also spill into the formal legal sphere, forcing higher courts to repeatedly clarify that marriage between the assailant and the survivor cannot be a mitigating circumstance to rape.
This reduction of women to communal property unable to give consent also leads to the opposite problem. Among the cases reported to the police, there are some where women in consensual sexual relationships with partners from a different caste or community are forced by their families to turn them in. An investigation by Rukmini S. shows that in Delhi, a third of reported cases in a year dealt with consenting couples with the parents of the girl accusing the boy of rape. When these cases are eventually (correctly) dismissed, they add to the hysteria on “false cases” that drives much of the public discourse in the Indian male imagination today.
In this highly restricted framework, cases of sexual violence which do get reported and which spark outrage therefore either involve perpetrators from outside the group, typically an attack by a stranger, or extreme brutality that makes the attack impossible to ignore, and often both. And even in these situations, the relative power of the group to which the assailant belongs vis a vis the survivor often shapes outcomes. In the Hathras case, despite the Dalit victim succumbing to the injuries inflicted and her own dying declaration, the actions of the executive remained shaped by the contours of local caste hierarchies. The Dalit family was locked in a room and the body was cremated by the police without their consent, and the courts eventually held that rape could not be established and acquitted three of the four upper caste accused.
Also read: UP Police Locked Us Up, Didn’t Allow Us to See Body, Cremated Her at 3 am: Hathras Victim’s Family
While traditional caste, communal and class groupings still hold sway, newer groupings also emerge and act in cohesion to talk about or silence survivors. In modern urban settings, professional groups, like doctors in the R.G. Kar case, emerge and function as quasi castes in themselves, advocating for safety particularly for the women of their group. When state forces or forces operating with the tacit consent of the state come into play as perpetrators of sexual violence, the entire discourse of nationalism is deployed to discredit and silence victims and their supporters. The group of the assailant in a sense becomes the nation itself.
Dominant political ideologies also shape the manner in which gender based violence is discussed in the public sphere. The rise of Hindutva for example has meant a complete hijacking of the discourse around rape and women’s safety by the bogeyman of “love jihad”. This highly paternalistic discourse paints Hindu women as being in danger solely from Muslim men, and posits the removal of agency from Hindu women as a technique to keep them safe. A plethora of “love jihad” and anti-conversion legislation enacted in the last decade has focussed therefore not on the consent of women, but on criminalising and curbing interfaith relationships altogether.
None of this is new for the women of the Indian subcontinent. In a country born into the horrors of partition, women in newly independent India simultaneously became the holders of equal constitutional rights on paper as well as the targets of some of the worst gender based communal violence of the century. Historians estimate that between 75,000 and 150,000 women (Hindu, Muslim and Sikh) were abducted, usually by men of other communities (though some were also abducted by men of their own community). The debates that surrounded the recovery and repatriation of women abducted during partition were framed almost entirely in the discourse of a community violated recovering its honour, rather than on the welfare or the wishes of the women sought to be rehabilitated. Ritu Menon and Kamala Bhasin point out how one member of the constituent assembly is said to have remarked, “As descendants of Ram, we have to bring back every Sita alive.” At times, this thinking even trumped the wishes of individual women, and great pressure, both moral and legal, was exerted on abducted women to return to India. Laws that governed these recoveries were deliberately kept out of the purview of constitutional courts so that the individual wishes of the survivors could not trump the communal group imperative to bring them home.
Today, 77 years after Partition, women in India stand at a crossroads. We can continue to advocate for our safety within the group based framework, in the full knowledge that this will, at best, protect us from a fraction of the entirety of the violence we face, and in return take from us our autonomy over our bodies and our right to personal choice in our relationships, or we can break from the trappings of our existing class, caste and modern quasi caste groupings, assert our individual rights, challenge sexual violence within our own groups and form solidarities with survivors across groups. The latter is not easy and it will require women who benefit from current caste, class and communal hierarchies to reject those benefits in favour of dismantling oppressive structures in their entirety. And yet if we would like solutions more lasting than an increase in exclusionary policing or surveillance, it is time to reexamine the basics.
Sarayu Pani is a former lawyer and posts on X @sarayupani.
Missing Link is Sarayu Pani’s new column on the social aspects of the events that move India.
