Thursday, November 6, 2014

Law and Patriarchy

-Stree Mukti Magazine

Law in any patriarchal society is also patriarchal by its very nature.  This ideological character of law is revealed in many ways – in the basic ideas of formal equality under law given the grossly unequal nature of society, in the language of law, in its institutions, in its implementation, and in its effects.  On the one had, a range of laws try to enforce formal equality in a substantially unequal society and on the other, there are laws that reinforce patriarchal notions of “weaker sex”, or gender roles such as motherhood and innocence.  

In addition, in capitalist society, class nature of law and legal institutions is also a recognized reality. Law plays an important function in maintaining given social structures including patriarchy, and has tremendous hegemonic power since it often appears neutral, natural or inevitable. Particularly in Indian conditions, law is fundamentally patriarchal, casteist, classist and majoritarian.   As an extreme example, just this month a dalit judge at the apex of our legal system has lodged a complaint against attempts by other judges to humiliate him on the basis of his caste.  We have earlier cases of a judge who purified his chambers with gangajal since it was earlier occupied by a dalit judge, or instances such as conducting a havan and Hindu rites to inaugurate the new High Court building in Gujarat.   Even the semblance of the judicial institutions remaining free of biases of gender, caste, class or religion is often not maintained in Indian society.

The classic case of Bhawari devi, a field worker sathin highlights the nature of law in India. Bhawari Devi, was gang-raped by “upper” caste men as punishment for daring to do her job of preventing illegal child marriage in Rajasthan.  The judges decreed that senior upper caste men are unlikely to rape a “lower” caste woman, and hence refused to convict the rapists!  Other cases where the judicial process continues to harass and malign the raped women, or even suggest marriage as a punishment for rape are common enough.  The Visaka judgement and the anti-sexual harassment policies at the workplace that some of us workers in the organized sector enjoy draws from this heritage of Bhawari Devi, a courageous woman who stood up against her “upper” caste rapists against all odds.  Unfortunately she has failed to get justice through the legal system and neither do the vast majority of working women in the unorganized sector enjoy any protection in the workplace. Even the minimal workplace protection legislation and policies remain restricted for the small minority of organized sector workers.  A singular heritage that brings out the class, casteist and patriarchal nature of law in contemporary India.   

 However, in spite of all these criticisms, the idea of rule of law is still an important arena of struggle for all oppressed groups in society including women.  It becomes particularly critical in a situation like India where civil society is extremely regressive, violent and repressive.  Legitimacy of modern law depends on it being at least partly responsive to all sections of society.  While law does not have the revolutionary potential to transform society, it is still an important tool to address social consciousness and in the face of a regressive civil society, it is an important weapon in the feminist arsenal.

The Constitution of India, while containing several provisions that reinforce patriarchal notions of gender and family, is itself a document that is more progressive than the society that created it, thanks in large part to one of its architects Dr. Ambedkar.  In our everyday lives, we are constantly reaching out to law and the legal system to protect us from family, community, society.  When young adults want to exercise their constitutional right to select their own spouse irrespective of caste or creed, when family becomes a violent prison, when family tries to deprive us of property and any means to a livelihood, when violence stalks us within the home, on streets, at the workplace – we engage with and demand that the law protect our basic rights as humans and as citizens.  For this of course, we are also engaged in the constant struggle to ensure that there are even basic laws in place that we can access in times like these.  Once the laws are in place, the struggle begins to ensure that the entire patriarchal legal structure implements it.  From the struggle to convince the police constable that sexual harassment is a legal crime and not just a tolerable irritant, to fighting at the police station to register an FIR, to struggling to get information on laws available to us, to ensuring correct provisions of law are applied in the FIR, to finding lawyers willing and able to fight the patriarchal system, to convincing patriarchal judges that they need to implement the law, to protesting when patriarchal judges make atrociously patriarchal statements as part of their judicial pronouncements, to struggling to ensure that laws with Victorian and ancient morality are reformed, to ensuring representation for women among the law-makers in parliament, the Law is a significant arena of feminist struggle.

Note: This was published in stree mukti magazine as editorial.


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