Modern-day India is witnessing a disturbing backlash against women’s movements fighting gender-based violence

Recent developments point to a disturbing trend of a backlash against women’s move-ments against violence, particularly domestic violence. The 1970s and more so the 1980s saw a sweep of protests and agitations led by women’s organisations against crimes against women, leading to several new laws and legal reforms to protect women. The process of legal initiatives slowed down thereafter. It is only in the last few years that some of the lost momentum was regained through the enactment of the Protection of Women from Domestic Violence Act 2005 and the reform in the Hindu Succession Act giving equal rights to female coparceners.

However, in the same period there has been aggressive campaigning by opponents of the reforms and an offensive to reverse the earlier achievements. While the reasons underlying these developments require serious analysis, they are certainly linked to economic and political developments. The politics generated by neo-liberal economic policies that downplay and disarm democratic mobilisations based on universal rights and values of equality certainly has something to do with it. The domination of narrow caste-based politics and caste-based theories of social justice sans gender justice have also weakened progressive mobilisations of women for social change thus weakening the pressure on governments to enact gender-just laws. Communal right-wing mobilisations have constructed theories of tradition and culture which seek to imprison women in subordinate roles. These are not separate categories, each plays on and strengthens the other, leading to an environment where socially reactionary forces can thrive. Certainly, there is a red alert on for struggles in defence of a woman’s dignity and her rights.

An illustration of the current environment is the concerted offensive against a provision in the Indian Penal Code (IPC), Section 498A, which recognises mental cruelty along with physical cruelty against a wife by her husband or relatives as a crime. It was introduced in the IPC in 1983 as a result of women’s struggles against domestic violence. The clause itself is badly phrased and certainly requires to be amended with a view to strengthening it. However, even the small redress it offers to women is now under attack. Thus there is the apprehension that if one were to demand an amendment in Parliament to improve the clause, it may just open up a space for those who want it scrapped altogether! The clause has become the target of husbands who believe it is their birthright to mistreat their wives. They have been aided by the retrograde understanding reflected in some judgements of the courts, including the Supreme Court.

In one such recent judgement, the learned judges held that kicking a daughter-in-law, denying her food, threatening her with divorce, abusing her verbally, did not amount to cruelty under Section 498A of the IPC. If this utterly insensitive and outrageous interpretation of cruelty becomes legal precedent, which it will unless challenged by the central government, an important provision of law, won after sustained struggles by women’s organisations and groups, will become more or less defunct. In response to a request that the government should move urgently in the matter, the union law minister did assure some action but no review petition has as yet been filed.

Many parliamentarians also subscribe to the theory that Section 498A should be reconsidered. The Standing Committee on Home Affairs, then headed by Sushma Swaraj of the BJP, had recommended that Section 498A should be made bailable and compoundable. This means that even after a case is registered, the parties concerned can reach a settlement without going through court procedures, as it becomes a case between the two parties not involving the state. Such an amendment would reverse the efforts of women’s struggles to gain legal recognition of domestic violence as a social crime. The compoundable provision would abet the usual pressure brought against the woman to withdraw the case. In cases of domestic violence, it would amount to dilution of the provisions to protect women. However, better sense prevailed and this recommendation was not accepted by the government.

But the fact that such a recommendation was made at all, even as government statistics show a rise in crimes, including domestic violence, against women, is unfortunate. It also indicates that there is no consensus even about the minimum legal protections required to uphold a woman’s right to live a life free from violence and abuse within her home.

It may be true that some women misuse Section 498A. But is there any law which is not open to misuse? And does misuse of a law validate a demand to scrap it? The son of the chairman of the National Commission for Scheduled Castes and Scheduled Tribes has been charged with misusing the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act to file false cases against individuals and then extort money from them to withdraw the case. Does that mean that the act itself should be scrapped? There have been cases where political parties have used women to file false charges of rape against their political opponents. But does that mean that anti-rape laws should be scrapped? Obviously not.

If there are specific cases of misuse of an act, the courts do take action. Social organisations working for the rights of women or other oppressed sections of society rarely support fraudulent cases, as they are aware that such cases defame the very cause of justice that they are fighting for. Yet the voices against laws which protect women against domestic violence, like 498A, are getting louder or at least more widely reported because these laws challenge the very core of so-called tradition and culture, the patriarchal family and impermissible masculine behaviour.

Some commentators have argued that without a social consensus, laws remain on paper and therefore the struggles of women for legal reform are misplaced and misdirected. They believe that social change is required before such laws are enacted. Such an argument actually feeds into and strengthens those who would like to go back to the good old days when dowry burnings were swept aside as stove bursts and when the context for the suicide of a newly married woman was not investigated even though she was driven to suicide by acts of domestic violence against her. Of course, there is a link between social consciousness, consensus and the legal frameworks. There is no conflict between progressive laws and efforts to raise social consciousness, change human behaviour and create a social environment that is hospitable to women’s independence. More often than not a progressive legal framework itself acts as an accelerator for the development of social consciousness and consensus.

If some judges and parliamentarians continue to hold on to views which should have little place in a democratic society, there has to be immediate protest and outrage expressed otherwise those hoping for a reversal of achievements in the legal framework concerning women’s rights will certainly get the upper hand. Unfortunately, the absence or dispersal of such responses, and the contrasting proactive interventions from what can be, for convenience, called "the other side", is leading to a situation where sane voices for equality get drowned out. This is why Supreme Court judgements like the one referred to above can constitute a backlash.

Section 498A and Section 304B were included in the IPC precisely because violence within the domestic sphere, which was hitherto invisible, was made visible by women’s struggles. Today there are other crimes which are not being recognised.

The recently concluded session of the Rajya Sabha was instructive in revealing the gap between the government’s perception and the reality as far as violence against women and the framework of legal rights is concerned. One of the major issues was the spate of honour crimes, particularly in Haryana, and the government’s response to them. In the month of July, in the course of just a week, there were as many as five such murders widely reported by the media.

It is common sense that one has to recognise a problem to be able to address it. Yet the government and other authorities are in a state of denial as far as this particular kind of crime is concerned. In response to a question tabled in the Rajya Sabha about the number of honour killings and crimes in the country, the government replied that there was no separate classification of crimes under this category and that such killings were registered as murders. It was further stated that "it is extremely difficult to identify or classify an honour killing as such in any community since the reason for such killings often remains a closely guarded private family affair." Thus you don’t collect statistics because you do not have a special law and you do not have a special law because you cannot collect the statistics to show that it is required!

In 2002 the UN-appointed special rapporteur’s report on violence against women in the world included India among the countries where honour killings occurred. There was a strong protest from the government of the day, contending that since there was no data to prove this, the reference to India must be removed. It was also stated obliquely at the time that India should not be equated with Islamic countries where such crimes are known to occur. Under pressure, and even though they knew the truth lay elsewhere, the report writers had no choice but to erase references to India. But the erasing of a sentence in a report does not erase the reality of the crime. It does however reveal the utter insensitivity and callousness of successive governments in their refusal to recognise the very specific nature of so-called honour crimes.

The main factor in such crimes in India is a combination of the caste system and patriarchal cultures. Its targets are young people who have made their own choices about their partners. Prevailing patriarchal notions of women as "repositories" of the community’s honour are linked to control of their sexuality. In many parts of the country, if an upper caste girl marries a lower caste boy, it is considered a crime against the community and it is not only legitimate that she be punished but it is the duty of all to protect the community’s honour by doing so. The crime goes beyond the immediate savagery and brutality associated with the public lynching of young couples to an outright assault on the very nature of a democratic society where the freedom of choice is guaranteed to all adult citizens by the Constitution and the law.

Self-declared guardians of the caste/community, operating through all-male caste panchayats (sometimes called Khaps), pronounce verdicts in such cases depending on the "extent" of the crime committed and how much the honour of the community has been violated. The crime of marrying into a lower caste is for a woman punishable by certain death. But other crimes even include marriage into a neighbouring village, which is considered taboo by some caste panchayats. Marriage into one’s own gotra (clan), though permitted by law, is considered a crime by some and so on. The punishments range from public humiliation to externment from the village, to death. In one terrible case, the head of the caste panchayat declared a reward of 50,000 rupees for the killing of a young man who had defied the panchayat and married a woman from a neighbouring village. A few days later the young man was killed. But the caste leader who had pronounced his death sentence was not arrested.

It is because this crime is "a closely guarded family affair" – when the family extends to the caste panchayat, whether through choice or coercion – that you require a law that will take into account the different dimensions of this crime where there are no complainants, no witnesses and often no corpses. In India, the number of so-called honour crimes is increasing as young men and women with increased opportunity to meet each other in coed schools or colleges cross caste barriers in self-determined relationships. There is an urgent need for a law to protect their choices from the mindless and savage violence inflicted on them in the name of honour.

But finally, when a discussion was held in the Rajya Sabha in July, the government refused to accept a near unanimous demand cutting across party lines for a special law against honour crimes and for a ban on the issuing of such dictates by the caste panchayats. Pakistan passed such a law in December 2004, during General Musharraf’s time, in the teeth of fierce opposition from fundamentalist forces. Recently, women’s organisations in that country which have been reviewing the law found it extremely inadequate and are pressing for further amendments. But in India, the home minister, with the mistaken notion that he has a monopoly on understanding of the issue, opposed such a law outright. According to him, murder laws in India will suffice to deal with the crime. This is utterly wrong and displays an ignorance of ground realities. Besides, there are other crimes connected with honour that will not be covered under Section 302 which deals with murder.

But apart from ignorance and insensitivity, there is also, of course, the issue of vote bank politics. Elections in Haryana, where recent crimes of this nature have been committed, are to be held soon. The chief minister is on record as saying that those who want action against Khap panchayats do not understand Indian culture. His son, the twice-elected MP from Rohtak and reportedly a close aide of Rahul Gandhi, is also on record as saying that such cases have to be dealt with very sensitively, as they involve social sentiments. Thus social sentiments become the reason to protect those responsible for the killing of young men and women.

Yet the system is not shamed. For this brand of politicians it is business as usual. For the learned judges of the courts, who are so alert to daily developments that they take suo motu notice if workers go on strike and then ban them, these killings do not constitute enough reason for intervention.

The All India Democratic Women’s Association (AIDWA) under the courageous leadership of its Haryana president, Jagmati Sangwan, has continued to mobilise people against such crimes. She has received ugly threats and warnings to stop the protests. Women’s organisations did recently organise a big convention in Rohtak in solidarity with the survivors of honour crimes. These are timely and appropriate steps which need to be carried forward if the present hostile environment against women’s right to independent choices in personal relationships is to be challenged. There must be a concerted movement to demand a specific law against so-called honour-related crimes.

A defensive posture in the face of gender and caste-based prejudice, discrimination and sanction to violence, whether it emanates from the caste panchayat or from the benches of the Supreme Court, will just not do. Social consensus should not become the byword for a regression to socially and legally sanctioned injustice against women.