Indian Feminisms

Law, Patriarchies and Violence in India

Geetanjali Gangoli

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317117452
• Edition: 1
• Topic: Social Sciences
• Subtopic: Feminism & Feminist Theory
• Index: Social Sciences

Contributing to debates on feminism, this book considers the impact made by feminists in India from the 1970s. Geetanjali Gangoli analyses feminist campaigns on issues of violence and women's rights, and debates on ways in which feminist legal debates may be limiting for women and based on exclusionary concepts such as citizenship. She addresses campaigns ranging from domestic violence, rape, pornography and son preference and sets them within a wider analysis of the position of women within the Indian state. The strengths and limitations of law reform for women are addressed as well as whether legal feminisms relating to law and women's legal rights are effective in the Indian context. The question of whether legal campaigns can make positive changes in women's lives or whether they further legitimize oppressive state patriarchies is considered. The recasting of caste and community identities is also assessed, as well as the rise of Hindu fundamentalism and the ways in which feminists in India have combated and confronted these challenges. Indian Feminisms will interest researchers and students in the areas of feminism, law, women's movements and social movements in India, and South Asia more generally.

Chapter 1

Introduction

Introduction

Feminist movements in India have posed challenges to established patriarchal institutions such as the family, and to dominant social values and structures, most significantly in the arena of legal interventions in the areas of violence against women. Feminists have intervened in the area of law in at least three ways. One, to expose the working of patriarchal controls and structures within law, for instance, critiquing civil marriage and divorce laws that extend more rights to men than women. Two, to unpack the plural ways in which law operates, including offering some redress to women in situations of domestic violence and finally, to campaign to extend rights to women, such as campaigns against sexual assault and rape. As a movement that has challenged hegemonic notions of the ‘Indian family’, detractors have constructed Indian feminism as a distinctly western phenomenon. Therefore Indian feminists have been forced to confront and combat claims of being ‘westernised’ both from the state and from sections of civil society, including by right wing Hindu fundamentalist forces as being alienated from the ‘Indian’ realities of family structures.

This book will address the global relevance of concepts such as ‘patriarchy’ and ‘feminism’ and feminist interpretations of ‘local’ issues and patriarchies through the study of Indian feminism from the 1970s to the present. To this end, it will examine and analyse feminist campaigns on issues of violence and women’s rights, and debates on the possible ways in which feminist legal debates may be limiting for women, and could possibly be based on exclusionary concepts such as citizenship. It will also look at the strengths and limitations on working on law reform for feminists. I will also look at whether legal feminisms relating to law and women’s legal rights are effective in the Indian context. The book will examine whether legal campaigns lead to positive changes in women’s lives or whether they further legitimise oppressive state patriarchies. The book will also look at the recasting of caste and community identities, specifically the rise of Hindu fundamentalism, and the ways in which feminists in India have combated and confronted these challenges.

This introductory chapter will set the terms of the debates that will be addressed in the book. I will begin by a short summary on the economic and social ‘status’ of women in contemporary India, followed by examining the main issues that will be tackled in the book, and the methodology used while conducting the research on which this book is based. I will then examine the relationship between ‘western’ and ‘Indian’ feminisms; debates within Indian feminism on law and rights and challenges posed to Indian feminism from Hindu fundamentalist forces and globalisation.

Women’s ‘Status’ in India

Scholars agree that it is very difficult to measure the ‘status of women’ especially in the context of a large and diverse country such as India (see for instance: Devi 1993; Kishor and Gupta 2004). While women in India theoretically enjoy a number of legal rights, in practice these are denied to them. The Fundamental Rights incorporated in the Indian constitution include equality under the law for men and women (Article 14), equal accessibility to the public spaces (Article 15), equal opportunity in matters of public employment (Article 16), equal pay for equal work (Article 39). In addition there are statutory provisions that guarantee these rights, such as the Equal Remuneration Act of 1976 and the Maternity Benefit Act, 1976. The Dowry Prohibition Act, 1961 prohibits the giving and taking of dowry, and Section 498 A Indian Penal Code, 1983, criminalises physical and mental cruelty to married women perpetuated by their husbands or in laws. Under the Hindu Succession Act, 1955, Hindu women were granted equal rights to parental self-acquired property in the case of intestate succession, but not ancestral property. Widows had an absolute right over affinal property (Kishwar 1993). However, under an amendment made to the Hindu Succession Act in 2005, Hindu women have been extended equal coparcenary rights to ancestral property. However the Act still allows parents to disinherit daughters in the case of self acquired property through the use of a will.

Studies have suggested that variables including women’s access to education, the media and paid employment are some economic pointers to women’s status, while participation in decision making, age at marriage, extent of, social and personal acceptance of domestic violence, and women’s mobility are social indicators (Kishor and Gupta 2004). While some Indian women have attained prestigious posts in the judiciary, education, politics, IT, medicine and other myriad fields, these benefits are denied to the majority of women in the country. National data demonstrates that proportions of women working for cash are low in most states in India (ranging from 49 per cent in some states to 10 per cent in others), as is women’s freedom of movement and access to the public sphere more generally. Only one in three women can go to the market without permission from their family, and one in four visit friends and relatives without permission. Women have less education than men, with only just over 50 per cent of the female population in India being literate, as compared to 75 per cent of the male population. Not surprisingly therefore, women enter marriages much earlier than men, and marry men who are both older and more educated than themselves (Kishor and Gupta 2004). The average age for marriage for women in India is 12.6 years (UN 1998), therefore suggesting that child marriages are common in different parts of the country. Most women have limited participation in decisions about their lives including visiting their natal families, health care, and making expensive purchases. National data also reveals that one in five women have experienced some form of violence from their husbands, or other members of their families since age 15, and there is a high degree of acceptance of domestic violence among women, with 57 per cent of married women aged between 15–49 accepting that a man is justified in beating his wife if she does not fulfil accepted gender roles including cooking, neglecting the home, or if her natal family do not provide the expected dowry (Kishor and Gupta 2004). Dowry demands at marriage are a part of Indian marriages, while dowry was once a Hindu upper caste custom; it has become a part of the marriage customs of different castes and communities. Dowry demands have been conceptualised as one of the reasons leading to son preference (Sunder Rajan 2003), leading to female infanticide and sex pre-selection and abortion of female foetuses, therefore leading to the sex ratio, which in contrast with western societies, favours men to women with 927 women per 1000 males in the 1991 census (CEDAW 2002). The 1991 census marks the trend of the continuing and what has been called ‘a secular decline in the sex ratio from the beginning of the last century’ (Krishnaji 2001).

As we will see later in this chapter, structural factors such as caste, community and class status impact on women’s access to rights, and freedom from violence as have socio-economic developments related to globalisation in the 1990s. For instance, poverty and other forms of social deprivation have been found to be the single most important reason that women in India enter the sex trade, which has been seen as an area of concentrated violence against women in the trade (Pandey et. al. 2003). It has been suggested that women’s inferior position in India is due to their lack of control over arable land, and research has indicated a gap between owning land (which some women do) and controlling land (which very few women do); and also found that although some laws grant women rights over land, local practice often thwarts the exercise of those rights (Aggarwal 1994). In addition, women in India have often limited access to mainstream political power and studies have found tenuous links between feminist movements and the political interests of women parliamentarians (Rai 1995).

Structure and methodology

Structure of the book

This book will look at the ways in which feminists in India have impacted legal and social debates on women’s rights, violence against women and sexuality. Chapter 2 examines a brief survey of feminist history and activism both nationally, and in the city of Mumbai (Bombay until 1992), which has been an important centre of feminist – and more generally radical politics, including a vibrant trade union movement. This chapter will discuss the emergence of feminism in the 1970s and 1980s; where the exigencies of post colonial Indian politics manifested themselves in the form of the excesses of the Emergency (1974–76); and the influence of nationalist and socialist politics. I will examine how, in spite of a recognition of the patriarchal limits of the organised Left, the feminist movement, given its ideological closeness to these groups, could not but take up issues relating to working class women, rather than middle class women.

Chapter 3 looks at the ways in which feminists have conceptualised and influenced the gendered aspects of the debates on citizenship and women’s rights, through an examination of the limitations of the notion of citizenship for women. While Indian feminists have often argued that women in India have rights equal to men because they are Indian citizens, the State constructs the female citizen as notionally equal within the constitution but legally men and women have different rights. This chapter will examine these issues through the debates on minoritised Muslim women and sex workers.

Chapter 4 traces the varied ways in which criminal and civil laws in India construct women’s sexuality. A range of criminal and civil laws will be analysed from this perspective, including laws on rape, prostitution, maintenance, adultery, divorce, homosexuality and pornography, and I will assess whether there is a continuum between criminal and civil law as far as the construction of women’s sexuality is concerned. Feminist responses to, and impacts on these debates will be looked at. Chapter 5 will examine the feminist anti-rape campaign beginning in the 1980s on the issue of custodial rape, through legislative debates; judicial interventions and feminist challenges to mainstream ideas of ‘custodial’ rape. I will analyse the strengths and limitations of feminist theorisations on rape, and the ways in which feminist paradigms have shifted from the 1980s to the early twenty-first century.

Chapter 6 analyses the overlap between the State and feminist discourses on dowry and on domestic violence. Through a study of legislative debates, judicial statements, police rhetoric and feminist statements I will look at the implications of negating the differences between these two often distinct forms of oppression. This chapter will also look at the links between communalisation and domestic violence. The concluding chapter will bring together some of the themes discussed in the previous chapters and offer some conclusions on whether law is indeed a ‘subversive site’ for feminists (Kapur and Cossman 1996), or whether feminist justice is indeed impossible within law (Menon 1995b). The chapter will also offer conclusions on the relationship between western and Indian feminisms by showing how Indian feminists both ‘borrow’ from and contribute to western feminisms. Finally, the book will offer some insights into the challenges posed by caste and communal politics to Indian feminism, and the ways in which they have responded to them.

Research methods

This book is based on research carried out on the Indian women’s movements from 1995 to 2005. During this period, and indeed before it, I have identified myself (and continue to do so) as an Indian feminist, and as a member of feminist organisations in Delhi (Saheli and Gender Studies Group) from 1995–96 and Mumbai (Forum Against Oppression of Women, henceforth FAOW) from 1996 to 2001. In 2001, I relocated to the UK; however continue to be on the mailing list of FAOW. My positionality as a ‘fellow feminist’ shaped my research, both in influencing the contours of the questions I asked and in giving me privileged access to ‘source material’ both written and verbal, from within the feminist movements in India. It also gave me a sense of added responsibility – I was faced with the dilemmas of representation and fears of violating trust. Therefore my research methodology can be described as partially using the ‘participant observation’ method, which involves participating in the lives and cultures of the people who are being studied, in order to get an ‘insider’s’ perspective; while observing them in objective terms (Cox 2004, 3). However as I already considered myself an ‘insider’ within the Indian feminist movements – as I still do – the degree of ‘objectivity’ in the observation of Indian feminists may be somewhat inconsistent.

In addition to ‘observing’ feminists, my research involved collecting and exploring as source material formal interviews with women’s movement activists, and papers, pamphlets and statements by women’s groups. Therefore I have analysed papers and documentation available in various feminist documentation centres and agencies, including Jagori and Saheli in Delhi; FAOW, Women’s Research and Action Group, Akhshara, Majlis Manch and Women’s Centre, Mumbai. In addition, 15 semi structured interviews with activists and members from different agencies, including Special Cell to Help Women and Children; FAOW; Akshara; Bhartiya Mahila Federation; the Mumbai Police; CITU and Blue Star Trade Unions; Communist Party of India (henceforth CPI); Communist Party of India Marxist (henceforth CPIM); Akshara; Annapurna Mahila Mandal and Stree Jagruti Samiti informed the research; as did numerous informal but enriching discussions with colleagues from FAOW, Saheli and Akshara. The semi-structured interviews were conducted by prior arrangement, and questions were asked about the organisational structure, views on Indian feminism and where they located themselves in connection with feminist politics, views on legal feminist reform, and their own experiences within varied campaigns. The ‘informal’ discussions with feminist colleagues and friends often took more varied directions.

In addition, I have critically examined legislative debates from the Lok Sabha from the late 1970s; to access the nature of legislative debates on issues ranging from the marriage laws; rape; dowry; domestic violence; prostitution and civil and personal rights of Muslim women. I have also analysed over 35 case law judgements on domestic violence; rape, personal law; sexual harassment and prostitution. Both these sources bring out diverse, often contradictory trends within official discourse, sometimes displaying direct, sometimes oblique perceptions of feminist ideologies and interventions, which is at times integrated, at others negated or undermined. In my opinion, a close study of legislative debates is important for various reasons. One, because there is an effort to co-opt feminist claims to the benefit of the State, and a recognition of the strength of feminist activism at that point of time. Legislative debates reveal that the interests of the State cannot always be collated with the interests of the one or the other political party, even as the ruling party tries to integrate, most often unsuccessfully, the varied interests of different political parties and lobbies.

Relationship between ‘western’ and ‘Indian’ feminisms

The relationship between ‘western’ and ‘Indian’ feminisms has been one of intense debates within the Indian women’s movement; Indian feminists simultaneously claiming an international feminist solidarity with groups and individuals worldwide, including the west and a specific ‘Indian’ sensitivity. In the 1970s, the rise of liberal and radical feminism in the west meant that the focus of the international decade of women (1975–1985) was around demands for equal opportunities in education and employment and focus on ending violence against women. In India, the newly emerging feminist movement based its appeal to these varied values and concepts, while examining the ways in which women in India had not benefited from international ‘development’. Therefore the ‘Status of Women’ report commissioned by the State focused both on ‘liberal’ issues of women’s education and employment and on ‘radical’ ones of violence (Guha et. al. 1976), revealing that Indian feminists in this period were both influenced by western debates, but were able to adapt the debates creatively due to national and local concerns.

Indian feminists have often made demands to the Indian State for amendments in law and policy based on international developments; most often the appeal is based on the Indian State’s acceptance of international conventions. Therefore feminist demands to legislate against specific forms of what are considered gender-based violence, including trafficking into prostitution and sexual harassment in the workplace are legitimised in part by appeals to conventions such as the Convention Against Discrimination of Women (CEDAW) and the Convention on Combating the Crimes of Trafficking in Women and Children (Gangoli 2000). In the case of other issues such as dowry related violence against women, Sati, sex selective abortions and custodial rape, in the main feminists focused on the specific manifestations of indigenous patriarchies that were seen as being reflected within these forms of gender-based violence (Kumari 1989; Kishwar and Vanita 1994). However, in such cases appeals can be made on the basis of the need to modernise according to western standards of gender equality; and in others feminists have suggested that some of these forms of violence against women are less specifically ‘Indian’ than reflecting a wider global trend of patriarchal oppression of women (Rudd 2001; Talwar Oldenburg 2002).

While influences from the west have been acknowledged by several feminist activists, and theorists (see for instance: Gandhi and Shah 1989; Chaudhuri 2004); there are several indications within women’s movement activism that it is not a case of ‘borrowing’ outside context. The campaigns against violence against women included an in-depth and sophisticated understanding of the nature of Indian society. Therefore, as we will see in Chapter 5, the anti-rape campaign in the 1980s and 1990s exposed the nature of the ‘third world’ system of governance, felt first during the Emergency years through the sterilisation campaigns, and suspension of fundamental rights. The anti-rape campaign focused initially on the police as the visible representatives of State power and brutality against women. Therefore, unlike the anti-rape campaigns in the west in the period, where the focus was more on the interpersonal nature of sexual assault, including within the family and within relationships (Lees 1996), the Indian campaign focused on the systematised structural violence. As I will show in Chapters 4 and 5, organisations such as the Forum Against Rape (henceforth FAR) combined a radical feminist understanding of rape as male violence against women with a ‘socialist’ conceptualisation of rape as a form of violence against women that had impacts on class and caste relationships within the country. Similarly, the campaigns on domestic violence focused initially, on dowry related murders and the role of mothers-in-law as perpetrators of violence against women. Dowry related violence was understood as a form of gender-based violence that was based on the low status of women in general as disposable. The spread of dowry from an essentially upper caste Brahmin and Hindu custom to a ‘nationally’ adopted one among varied castes and communities – sometimes replacing the more egalitarian custom of bride price – has also been understood as a form of increased consumerisation of contemporary Indian society, where the traditionally low status of women had led to a further marginalisation of their rights (Gandhi and Shah 1989; Kumari 1989; Judd 2001). While the role and significance of dowry as causing or even reflecting women’s unequal status has been disputed (Talwar-Oldenburg 2002),1 women’s organisations in India continue to address the issue of dowry either through its connections to ...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• List of Abbreviations
• Glossary
• Acknowledgements
• 1 Introduction
• 2 National and Local Feminisms: Different Streams within the Women’s Movements
• 3 Feminism and the State: Citizenship, Legislative Debates and Women’s Issues
• 4 The Legal Regulation of Women’s Sexuality: Continuum between Civil and Criminal Laws
• 5 ‘Custodial Rape’ and Feminist Interventions
• 6 The Campaign Against Domestic Violence
• 7 Conclusions
• Bibliography
• Index