All About Eve: It’s Time For Vagina Dialogues
This story first appeared in HW English
One looks to the courts for justice, punishing the wrongdoer and getting the investigating agencies to do a thorough job in gathering all evidence.
It is time for us in India to begin having ‘vagina dialogues’ in public life, considering the way the stakeholders in this entire patriarchal setup are behaving, be it the politicians, society, and most of all, our judiciary. The constant demeaning of woman, viewing her as property and now, the courts have ownership over her to decide her fate is not within the realm of judiciary. In such cases, the female who has been raped/sexually, and physically assaulted has no say in her future.
Courts’ view of rape
One is not looking for sanctimony, but expecting the values of our Constitution to be held high. Sadly, however, the protectors of our Constitution, have reflected the latter rather poorly.
While the Bharatiya Janata Party-led government did indicate it had intentions of passing a bill to criminalize marital rape, many members of Parliament opposed it. Women’s organizations have been fighting for decades to get the courts and policymakers to acknowledge marital rape as an offense, but it remains an issue which most would like to throw under a blanket, pardon the unfortunate pun. Though sexual violence has been recognized under the Domestic Violence Act, marital rape is still not recognized as a crime. Our courts seem to perpetuate the misnomer that marital rape cannot be applied to the Indian context’. Of course, we all have seen Monsoon Wedding, to understand traditional Indian culture and rape in its context. Be it marital rape, domestic violence, sexual assault by an elder family member, all of these ARE RAPES. We still have a minister, Maneka Gandhi who fights for animal rights, but when it comes to women’s rights she took a stand that marital rape could not be “suitably applied to the Indian context”. This was in the Rajya Sabha in 2016, when the government planned to criminalize marital rape. It created much furor, but the issue is now in cold storage and it is time the government passes this bill soon.
Now, in such a milieu where women are still struggling to get their basic rights, we have courts that view rape as a social evil that needs to be cleansed by not correcting the offender but deciding on behalf of the survivor, without, of course, consulting her. This is definitely not within the realm of law and jurisdiction of the Supreme Court. It is more on the lines of a khap panchayat. The Supreme Court, early this week, was hearing an appeal against a verdict of the Aurangabad Bench of the Bombay High Court, by which an order of the sessions court granting anticipatory bail to the appellant was set aside. The Chief Justice of India SA Bobde asked the counsel for the petitioner if he would marry her. He further stated, the court wasn’t forcing him. The man said he had asked her and she had refused. This man has become a government servant and is already married. The petitioner was asked to apply for regular bail and was given protection from arrest.
There are numerous issues in this case and the comments of CJI have thrown up new problems. Firstly, a woman’s ‘no’ has been completely disregarded with such a misogynistic attitude. Moreover, marriage to the perpetrator is viewed as justice having been done to the rape survivor, going by the way the courts in India have been ruling. This is not the first time that a judge has asked the accused to marry a rape survivor, but that the apex court propagates it, is scary, to say the least. It is like giving a license to the accused. On one level, we have a judicial system, family courts that say save the marriage and at another level, a woman is being asked to marry the man who has sexually assaulted her. This does not help the girl, who obviously is going to face social problems after people in her community learn of her case. But the court can ask the assaulter to compensate her to ensure her future is secure and empower her.
Again, the woman is relegated to the status of a commodity where the dominant male decides on her behalf what is right or good for her, completely disregarding her choice. The grisly facts of this case are as follows: Both were minors and after the girl was raped repeatedly, she tried to commit suicide but her mother saved her. Later, the mother of the accused prevented them from going to the police and promised to marry the boy to the girl after he turned 18. The boy had stalked the girl, threatened to harm her and her family, and using these threats, had repeatedly raped her multiple times.
It is surprising that the court has ignored the entire issue of a one-sided affair, apart from the fact that it was toxic and violent, and life-threatening for the girl. This very notion of romanticizing one-sided love affairs, which are sexually violent, is disgusting and often depicted in our Hindi films. These films highlight how psychotic and violent these plots have been. Is this the kind of justice women want?
It feels strange to continue saying in the 21st century, it is time our courts become gender-sensitized, especially towards females. One looks to the courts for justice, punishing the wrongdoer and getting the investigating agencies to do a thorough job in gathering all evidence. Instead, we see the courts take on a brahminical stance, considering the ‘purity’ of a woman’s body, and this ‘purity’ is retained if she marries her assaulter. Is this the message we want the courts to give to society? This is exactly the reason why we see women fearing to walk out of abusive marriages. This bizarre attitude is highly insensitive and worse still, reflects a poor outlook towards a woman, her vagina, and her status.
It would be considered blasphemous if I suggest more and more discussion is needed on vaginas. The fact that it is an important part of a woman’s anatomy, which when encroached on, can lead to multiple problems, is not told to young girls and moreover the boys, well enough. It is exactly what The Vaginal Monologues, a groundbreaking novel and play written by writer and activist Eve Ensler highlighted, after speaking to over 200 women. This play addresses women’s sexuality and the social stigma surrounding rape and abuse. It created a new conversation about and with women. The court has obviously ignored, or I would say, shown complete indifference to the female’s wishes.
Technically speaking, while hearing a bail application, the court does not have jurisdiction to decide on the merits of a case, because the man has not asked for the case to be quashed. He has not denied his crime and yet, the courts seem to overstep and try to resolve the issue by suggesting such dangerous solutions. The jurisprudence of rape per se in our courts actually shows a scary pattern. We all remember the recent decision of the Bombay High Court which held that groping a minor without touching her skin did not amount to any sexual assault under the POCSO Act. While, in another case in Madhya Pradesh, the high court had directed the accused in a molestation case to get a rakhi tied by the victim. These cases went to the SC and were stayed, but the overall mindset does not seem that of a progressive, mature, democratic state wherein the values of the Constitution are upheld. In another case, the Madras High Court in 2015, granted bail to a rapist and asked him to meet his victim for a settlement and come to a ‘happy settlement’, sending shockwaves. The chairperson of the women’s commission had said, “We would be very happy to see the criminal and the affected girl get together. That is our aim and objective.” As if this incident was not enough, in November last year the Madurai high court granted bail to a man accused under Section 6 of the POCSO Act, after he gave an undertaking that he would marry the 17-year-old rape victim after she turned 18.
The courts need to realize they are not the guardians of females and the strong message their decisions are sending to society is not helping to safeguard women’s rights. I am reminded of Vladimir Nabokov’s novel, Lolita. In this plot, the protagonist, a middle-aged literature professor, becomes sexually obsessed with a specific type of girl. I shall not get into the details of this novel, but the worst part is to insinuate that the sexual assault has been justified. It does not bode well for us.
Neeta Kolhatkar is a senior journalist with over 30 years of work experience across different media platforms. She is currently a freelancer and media consultant.
(Views Expressed Are Personal)