Kathua and Unnao cases: Linking sexual crimes with identity politics obstructs reforms in rape laws

Almost six years after Delhi rape case, there is yet again immense public outrage centered around the rape of a minor girl. The girl, an eight-year-old, from the Muslim Gujjar-Bakarwal community in Kathua district of Jammu and Kashmir, was abducted and raped brutally for a week, before being murdered. But while the Delhi rape case brought cohesion — all citizens, civil society and the government were joined in the victim Jyoti Singh's pain; she became "India’s daughter", the case in Kathua has divided the state along communal lines. As one group of people mourn her horrifying rape and murder, another group is using the incident to polarise the state. And while Jyoti Singh’s case brought radical reform to the anti-rape laws of the country and sharpened our understanding of sexual violence, there is still uncertainty about what kind of change the Kathua case will bring about in policy.

In the wake of this crisis, it is important to understand how the society views and examines rape as a crime, and why it views some cases of sexual violence as more significant in public discourses than others. Why is there a more public outcry for certain rape cases than others? And does this perception play a part in the kind of reform we demand from policymakers and the judiciary when it comes to sexual violence?

Protest over Kathua rape case. News18

Protest over Kathua rape case. News18

In the late 1970s, the focus of Indian women’s movements, according to Kapur and Cossman, was on rape as a legal reform issue because of cases of custodial rape. There were two prominent cases that shaped how campaigns regarding rape law reform would pan out: firstly, there was the case of Rameeza Bee, a Muslim woman who was a victim of custodial rape (1978); and secondly, there was the rape of Mathura, a young tribal woman (1980).

In both cases, the emphasis was "not on the evidence of rape, but rather the victim’s sexual history and their characterisation as promiscuous". These judgments spurred a new understanding of rape as a violation of the right of a woman to her body and constituted the worst form of violence against women.

The women’s movement challenged the prevailing legal and social understanding of rape and consent, and in a way, rape was located within "larger framework of systemic oppression of women by men". This also resulted in amendments to the rape law in 1983 that put out that in cases of custodial rape, consent is irrelevant.

Three decades after the Mathura and Rameeza Bee cases, in December 2012, Jyoti Singh’s brutal and heinous rape shocked the conscience of the country. The nation seethed that a girl who was from a middle-class background, who did everything by the book and therefore, her character could not be questioned, was gang-raped violently in a moving vehicle, disemboweled and left for dead. This propelled mass demonstrations, protests, and candle-light vigils throughout the nation.

One of the first demands that protestors put forth was calling for legal reform. Sheila Dixit, the then chief minister of Delhi, caved under pressure and directed the Delhi High Court to establish five ‘fast-track’ courts to try the accused in the case. A judicial committee, headed by former chief justice JS Verma, was appointed by the Ministry of Home Affairs to review the laws on sexual violence and provide recommendations. This resulted in the Criminal Amendment Bill, 2013, being passed, and it represented how reform and state intervention could be successfully demanded and attained by civil society.

In February 1991, the women in Kunan and Poshpora, two villages in Kupawara district in Kashmir, were reportedly raped by the soldiers of the Indian army during a search and interrogation operation. While the Indian government termed this incident as "baseless", several international human rights organisations such as the Human Rights Watch and others, have expressed doubts about the integrity of governmental investigations regarding this incident.

The "infinite injustice" of Kunan-Poshpora rings aloud because there has been no redressal, no acknowledgement and no reforms that came out of this incident. The mass-rapes in the region were about the Indian Army exerting power over a vulnerable and marginalised people. And now, many years later, the rape of the eight-year-old in Kathua brings forth the same issue — she belonged to the Muslim Bakarwal community, and her rape was to instill fear, exert power and drive out the community from the region.

However, there is an uncertainty as to the kind of changes we would see after this case, now that the Supreme Court has taken suo motu cognisance of the matter. Yes, in all probability, the perpetrators would be taken to justice; but in the larger narrative of rape adjudication, what would change? In the overall understanding of women's right to stay safe from sexual violence, what would change?

To answer this, it is important to chart out differences between the aforementioned cases, and cases which are ongoing but not considered important in the public discourse — the Jindal Law School rape case, the Kunduli rape case, the Gudiya rape case from Shimla and the Mahmood Farooqui rape case.

Public discourse remembers certain rape cases over others because of where the rape was situated in the current socio-political context — for instance, Mathura and Rameeza Bee were sexually assaulted by policemen in custody, and though the judgments acquitted the accused, the cases indicated that women’s dignity is not safe even in the hands of the protectors of the state.

Jyoti Singh came at the throes of a political change, it spoke of the Congress government’s failure to keep its citizens safe; her story of sexual violence was every Indian daughter’s worst nightmare — a middle-class hardworking girl who had dreams had an iron rod jammed into her! The Kunan-Poshpora and Kathua are not just "objects of brutal gender violence but also of the violence of the nation-state, of rape as a political tool".

In the "more remembered rape cases", the survivors’ bodies were battlefields, and a larger war brewing in the socio-political context was fought through the violation of bodily autonomy and integrity. In these cases, a man or several men had violated the victim’s dignity to make a mockery of the regime, and the regime had fought back to “defend” the survivors' honour in the form of reform concentrated on punitive legal responses.

On the other hand, in the Jindal Law School and Mahmood Farooqui rape cases, there was no way that the survivors’ fates could be located in the larger socio-political context. The victims had engaged (sexually or not) with their perpetrators in the past, and the judiciary presumed that they were “unchaste” and therefore, there had been no violation of their dignity. Since they were not harmed in the same manner as a “chaste” woman, and their struggle could not be located in the socio-political narrative, the state could not “defend” them.

The Kunduli rape case where a 14-year-old was raped and committed suicide in Koraput district and the Gudiya gang-rape in Shimla also could not move the needle when it came to the response from the state. For the state, these cases were idiopathic for there was no one to fight against.

While it is imperative to situate the Kathua rape case as a socio-political sexual crime, it is important to understand that rape adjudication has to be more robust. The socio-politically located rape cases are more important in public discourse because the identity of the rape victim takes precedence over the crime, and this is where the weaker cases remain in the face of adversity.

The weaker cases are only about the rape, the violation of dignity and the choice of a woman; they are not about the larger political climate, and they view women as women and not victims of a political problem. In the weaker cases, women’s bodies are not battlefields.

It is only when there is outrage primarily about the rape, and not about how brutal it was or how it would pit one community against another, that real radical reform will follow. This is not to say that rape isn’t used as a tool for political bargaining or wars, but in cases where sexual violence cannot be situated within identity politics, rape reporting and adjudication has been challenging.

It is, therefore, crucial to embrace an approach, made famous by Sharon Marcus, that does not view "sexual violence as a fundamental fact of women’s lives", but a "language through which gender inequality is defined, altered, and potentially contested". Once we isolate the definite fact of rape from women’s lives and stop viewing women’s bodies as battlefields, it would be easier to look at sexual violence as a crime and an anomaly, that requires not just state intervention and reform, but also the nuancing of our own understanding of sexual violence as power.

As Mona Eltahway has rightly stated: “What happens is that our bodies as women become battlefields. Proxy battlefields, and sometimes direct battlefields in which the regime attacks me to emasculate the men, and the men must then feel that they must defend me to get back at the regime. And where am I in this equation? I don’t want to be attacked or protected. I want to be an equal part of what is going on, and it is my right to dismantle that regime.”


Updated Date: Apr 15, 2018 16:31 PM

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