Walking Towards Ourselves

by Catriona Mitchell

  After a great deal of brainstorming, we arrived at a consensus, and recommended that though the perpetrator should only be a man, the victim could be ‘any person’, thus bringing in males, females and transgender persons as possible victims under the law. We raced to rework the proposed bill. The commitment of the young volunteers was very strong, as they too were eager to help bring about change.

  On 22 January 2013, Justice Verma and I left at midnight, but Gopal and the young team worked through the night to incorporate all the corrections and changes. It was only a few minutes before 7 am on the 23rd that they telephoned Justice Verma to tell him the work was complete.

  It was then sent to the printer; a hard-bound copy was produced by 12.30 pm. The three of us signed and immediately dispatched it to the Prime Minister together with a covering letter, which expressed our hope that there would be speedy implementation of our recommendations ‘to retain public confidence in good governance’. Prime Minister Manmohan Singh thanked us for our labour of love and assured us that the government would ‘be prompt in pursuing the recommendations of the committee’.

  Our recommendations and the outcomes

  It is not possible to discuss all our recommendations here, but, generally speaking, we enlarged the definition of rape and sexual assault, introduced clarity regarding consent, and dealt with the sexual harassment of women in the workplace.

  We recommended fast-track courts without endless adjournments, so that trials could be completed in a short time. We also recommended gender sensitisation of the police and the judiciary.

  The gender of a rape victim

  The government did not accept our recommendation that the victim should be ‘any person’, which would have protected males and transgender persons, and others. Instead, they passed a law making the offence entirely gender specific. In the government’s view, rape victims could only be women and rape perpetrators could only be men.

  I am of the view that this was a very serious mistake and that Parliament failed to realise the injustice done to many people who are and who have been brutalised.

  Minors

  Since one of the main offenders in the Nirbhaya case was a seventeen-year-old minor, who would be tried by the Juvenile Justice Board without undergoing the rigours of trial and punishment by the court, there was also a great deal of debate as to whether the age of the minor who commits rape should be reduced from eighteen to sixteen. Though a criminal offence cannot be given retrospective effect and it would not have affected the particular minor accused in Nirbhaya’s case, it was argued that a large number of rapes were committed by persons between the ages of sixteen and eighteen and that they should be brought within the ambit of the regular criminal law and punished accordingly. We examined this aspect carefully, but certain factors, both scientific and sociological, led us to the conclusion that no change in this aspect of the law should be recommended.

  An important factor, to our mind, was the neurological state of an adolescent brain, which undergoes significant changes in structure and function and whose ‘culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity’3.

  We also considered the United Nations Convention on the Rights of the Child, and the fact that transformation was hardly likely to take place if juveniles were put into jails with hardened criminals. Further, we considered the fact that recidivism had declined over the years and that children deprived of parental guidance and education had some chance of being rehabilitated if the reformatory system in juvenile institutions was drastically improved.

  The government accepted this position and the age of the accused was not reduced. Unfortunately, there is now once again a move to rethink this matter.

  Castration and the death penalty

  We were against castration and death as punishments; however, our view that even the most grievous offence of rape did not require the imposition of the death penalty was not accepted by the government. We stated that punishment for life, meaning a full life term, would be sufficient and that the punishment of death already existed in the Indian Penal Code in the case of murder. (Nirbhaya had since died in Singapore, where she had been sent by the government for better medical treatment.)

  Marital rape

  We examined marital rape in the light of the historical perspective and the principle of patriarchy, and this matter in particular was hotly debated. The offence of rape was originally based on the idea of theft of a man’s property. A woman belonged first to her father and after marriage to her husband. So if anyone had sexual intercourse with her before marriage, the father’s right and honour were affected, and after marriage the husband’s.

  According to the English common law of coverture, a woman was deemed to have consented at the time of marriage to having intercourse with her husband at his whim. In 1736 Sir Matthew Hale declared that a husband could not be guilty of rape on ‘his lawful wife, for by their mutual matrimonial consent and contract’ she had agreed to sexual intercourse and this consent ‘she cannot retract’.

  The situation has changed drastically since then. A woman’s autonomy and bodily integrity are concepts that have developed over the years, making rape an offence against an individual in which consent is an essential concept.

  In England in 1991, Lord Keith, speaking for the House of Lords, declared, ‘Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.’ The European Commission of Human Rights also endorsed the conclusion that a rapist remains a rapist regardless of his legal or marital relationship with the victim. The very essence of the Convention on Human Rights is the respect for human rights, dignity and freedom.

  In South Africa marital rape was criminalised in 1993. In Canada too it is a crime to rape your wife. In 1991, the Australian High Court had no doubt that ‘if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law’. These jurisdictions roundly rejected the fiction of irrevocable consent as being offensive to human dignity and incompatible with the legal status of a spouse. They have also recognised that consent is most important and cannot be implied and that marital rape cannot be considered a lesser crime meriting a more lenient sentence.

  We were aware of the countless married women who suffered without recourse under Indian law from the sexual violence of their husbands. Consequently, we strongly recommended that the exception for marital rape be removed.

  Despite our strong recommendation, the government did not agree to make marital rape a crime. Many voices were raised against the recommendation, including those of patriarchal insensitivity and those who believed that such a law would be misused. Some people raised the bogey that it would result in the unnecessary break-up of marriages. But the reality is that it would have been an enabling provision where a woman would have had a choice to lodge a First Information Report against her husband if she was sexually victimised. (Under the provisions of the criminal law, the police would have been duty-bound to register such a report.)

  The marital exemption referred to above is contained in Exception 2 in Section 375 of the Indian Penal Code, which reads: ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’

  I am of the view that the non-removal of this exception, despite our very strong recommendation, is unjust to women and violates their dignity and bodily integrity.

  It is against the spirit of human rights and the Convention for the Elimination of All Forms of Discrimination Against Women. Is a woman to be bound by the feudal fiction of irrevocable consent the moment she takes her marriage vows? Can she never thereafter maintain her own self-respect and individuality?

  With one breath the government talks of encouraging women, empowering them and enhancing their rights, and with the next it takes away their right to refuse to have sex if they do not w
ish to. The government has been overpowered by a patriarchal mentality and has failed to do the right thing by women.

  However, I do not believe that women should lose heart. Change will come in time; I hope sooner rather than later. We need to educate people about the constitutional right of equality. Awareness programs are essential for ordinary people so that, as Professor Sandra Fredman observed, ‘Marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife.’

  In fact, many of our recommendations were not incorporated in Act 13 of 2013 (which followed on from the committee’s report), although some, such as those relating to voyeurism and stalking, were.

  Disfigurement

  We were glad to note that an acid attack (throwing or administering acid) was being included as a specific crime. We had heard horrible stories in which a man stalked a woman and, if she objected or turned down his advances, threw acid on her face, thus disfiguring her, destroying her self-worth, causing permanent psychological damage, and completely ruining her life. We felt that this might have been averted if stalking were clearly an offence and the matter was nipped in the bud. It would also ensure the security and safety of women. We are happy that this recommendation (imposing a punishment of up to three years in jail and a fine) was accepted.

  Slow to change

  Although first an Ordinance and then the Act mentioned above were passed promptly, many of the other suggestions in our 631-page report, which aimed to make both the law and its implementation effective and to truly empower women, have not been dealt with. These include police reforms; changes to The Representation of the People Act 1951; changes to the Armed Forces (Special Powers) Act 1958; the establishment of a Women’s Charter; improvements in infrastructure and safety measures of various kinds; improvements in living standards, sanitation, health and educational facilities; and increased awareness in order to help change our patriarchal mindset. We were consistently of the opinion that equity and respect for the girl child and woman had to be of paramount consideration.

  I wonder if Nirbhaya’s case and our report have changed anything substantial. I do believe the report has helped to break the silence regarding sexual violence against women. It has brought about an awareness of this deeply troubling matter, and has reduced the stigma attached to the victims of these offences. It has made men and women more willing to report cases and to speak about their trauma. The discussion of gender crimes is now not confined to women’s groups; many men are also now involved with the issue. As I think of my own youth and my ignorance about sex, I realise the importance of sex education in schools, and hope it will become a reality throughout the country.

  The movement for change has to continue and, in time, bear fruit. It is for the youth to take it forward and to build a more equal society. I am confident that they will.

  * * *

  1. This is a document prepared by police when they receive information about an alleged criminal offence.

  2. The way in which Dalit social worker Bhanwari Devi was treated by the police when she reported the rape – and the court acquittal of the accused – attracted widespread media attention in 1992, in India and abroad. It subsequently became a landmark episode in India’s women’s rights movement.

  3. Roper v Simmons 543 US 551, U.S. Supreme Court (2005)

  REARRANGED MARRIAGE

  IRA TRIVEDI

  For centuries, India has had a complicated relationship with skin colour, but at no other time in history has the obsession with fair skin been so extreme as now. An estimated 65 per cent of Indian women use fairness creams; the Indian fairness cream market generates annual revenue of more than US$400 million and has been growing by close to 20 per cent annually.

  This obsession with fair skin is nowhere more visible than in India’s burgeoning matrimony industry. Marriage remains the cornerstone of Indian society and is widely thought of as the most important step in a woman’s life. Beauty comes into play as women strive to make the best possible match in a highly competitive arranged-marriage market, where eligibility is based on a few select factors such as wealth, looks, education and family status.

  So many girls are rejected as brides by boys and their families, only because of the colour of their skin. When dark-skinned girls finally do manage to find a match, their families have to pay out larger dowries, which take the form of throwing grand weddings and giving expensive gifts to their prospective sons-in-law.

  It is through the prism of marriage that I decided to explore how the beauty epidemic – and, more specifically, an obsession with skin colour – manifests in India. This journey is a deeply personal one because I too am part of India’s beauty epidemic. I have used skin-lightening creams extensively. I have been a finalist in the Miss India pageant, and I have spent an inordinate amount of time in marriage bureaus, not only in the guise of research but also looking for a husband. At the marriage bureaus, I have personally experienced how a decision of a lifetime can be made in a matter of hours, and how important, through all of this, skin colour is.

  Part 1: GROOM WANTED – for beautiful girl. Slim. Wheatish. Family income Rs 50 lakh+ Works in M.N.C. Religious. Homely. Family-oriented.

  ‘Please find her a husband,’ beseeches Mrs Mehta, her chapatti-round face solid and sincere. Lines of silver fleck her thick, oiled plait – her lumpy, generous body is draped in a peony pink chiffon sari, and clunky golden bangles jangle around her chubby wrists. Mrs Mehta is the classic Indian matron known universally as ‘Aunty-ji’. She takes a quick look at her daughter, Sakshi, the subject of the matrimonial advertisement above: slumped in a chair, staring languidly at her Blackberry, visibly distraught to be present at this meeting. In stark contrast to her mother, the office-going Sakshi is dressed drably in a loose black pantsuit with a pair of dusty flats, on their last legs. Despite her unbecoming clothing, Sakshi is a comely girl – she’s got the lithe frame of an athlete, a pretty, heart-shaped face with well-proportioned features, and, perhaps her best asset, passed down from her mother, thick, shiny, serpent-like hair.

  Mr Gopal Suri, the proprietor of South Delhi’s most successful marriage bureau, A to Z Matrimonial, gives Sakshi a sceptical look and then turns back to her mother.

  ‘Madam, at the moment we are very busy. It is difficult for me to take on any more clients.’

  ‘But Gopal-ji, Sakshi is twenty-five years old! If we don’t find her a husband now then it will be toooo late. And her papa – he is willing to pay a very high price for this,’ squeals Mrs Mehta.

  At the end, an avaricious Mr Suri simply can’t resist, and he signs on the Mehtas, with a 30 per cent hike in his usual fee on account of the difficulty of the job that lies ahead of him.

  Prima facie, Sakshi is the perfect client – an attractive, 25-year-old, educated girl with well-to-do parents who are desperate to get her married and ready to pay any price for it. But for Mr Suri, who assesses clients day in, day out on their marriageability, Sakshi has low marks. Sakshi is considered highly ineligible on India’s matrimony market on account of the colour of her skin. Though the matrimonial advertisement that her parents published in the papers markets her as ‘wheatish’ – a uniquely Indian term as common as black or white, used to describe a dark-ish complexion – the reality is that Sakshi is not the colour of wheat but the colour of dark chocolate. With over fifteen years of experience in the matrimony department, during which he has brokered close to a thousand arranged marriages, Mr Suri has found that there are few takers for girls as dark as Sakshi.

  ‘We want pretty, fair girls only,’ asserts Mrs Gupta, an aunty who arrives shortly after Mrs Mehta.

  Mr Suri is at his obsequious best. He pulls out all stops – endless cups of lemon tea, snacks both savoury and sweet from the local market, and, to appear as if he has abundant resources, his entire team of six sit in on the meeting. Mrs Gupta has a coveted asset – an eligible son whom she is desperate to find a bride for.

  A true salesman, Gopal Suri pulls out his kno
ck-off iPad to show Mrs Gupta biodata of prospective daughters-in-law.

  Mrs Gupta is unimpressed by the A to Z inventory.

  ‘Gopal-ji, these girls are not fair or lovely enough for my Rohan,’ she complains.

  Mrs Gupta is not particularly fair-skinned herself, nor is her son. But she, unlike Sakshi, might be described as ‘wheatish’. It appears that most of Rohan’s friends are Punjabi and Mrs Gupta tells us that if she finds a bride as fair as cow’s milk, then her son would marry her in a heartbeat. Propelled by Indian mass media, the ‘Punjabi’ notion of beauty – fair skin, big eyes, long thick hair – has become hugely popular. Punjabis are typically tall, fair and more ‘Western’-looking than most other Indians. There was a time, not so long ago, when a woman like Mrs Gupta – from the Marwari community, known to be conservative and reserved – would be appalled at the thought of nuptial ties with the Punjabis – known to be brash, loud, colourful and a bit flashy.

  After spending weeks at the marriage bureau I have developed some matchmaking expertise myself. It isn’t exactly rocket science; rather, the way that Mr Suri matches two people is so simplistic that I am often left flabbergasted. Relationships, especially finding ‘the One’, feel like the most complicated things in the world to me. Here at A to Z, though, they are decided practically every day.

  Mr Suri creates biodata for all his clients. This biodata lists height, the date of birth, caste, education, family income and family details: parents’ professions, siblings, grandparents, uncles, aunts and whomever else the client chose to include. The biodata always comes with a few photographs.