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Session #4: Saturday, 10 January, 11.30 - 13.15 (CSLG)
Panel coordinator(s): Srimati Basu, University of Kentucky (srimati.basu2@uky.edu)
Chair/discussant: Jean Comaroff, Distinguished Professor of Anthropology at the University of Chicago, Director of the Chicago Centre for Contemporary Theory, and an Honorary Professor at the University of Cape Town (jcomaro@uchicago.edu)
Panel description
Panelists, paper titles, and abstracts
This panel seeks to interrogate and reformulate the jurisprudence of sexual violence, to read the limits of legal and quasi-legal processes that are used to adjudicate violence against women, to dwell in complications of female victimization and agency thrown up in these legal encounters. We look at both the encoding and decoding of laws of intimate violence: at both social movements and their ongoing struggles in defining optimal policies, as well as at institutions set up in response to social movements and the ways in which they concretize policy visions. The first set of papers focuses squarely on social movement struggles, particularly on seemingly progressive movements and their difficult attempts to grapple with issues of gender, class and religion. The second set examines quotidian applications of formal and informal laws pertaining to violence against women in courtrooms, police stations and social settings, mapping the exact terrain around which intimate violence is conceptualized as part of systems of kinship, sexuality and property. The panel critically examines feminist understandings of sexual violence and attempts to devise new rubrics to confront emergent problems of legal execution.
In a dramatic post-show performance in January 2004, Kolkata police stormed the play Phataru, seeking to arrest actor Rudranil Ghosh on charges of rape brought by fellow-actor Oindrila Chakraborty, galvanizing conversations around rape in terms of sexual agency, marriage and fraud. I examine accounts of this hypervisible case against ethnographic data from other legal settings and other appellate cases which evoke and elide rape in the context of marriage. Legal categories for managing divorce, domestic violence and sexual violence have seemingly been negotiated separately (through political negotiations and feminist formulations), but they have come to shape each other as legal strategies, such that rape and marriage come to be mutually constituted, simultaneously delineating sexual and economic regimes. While judicial discourse around rape appears to have moved away from notions of property redress, these recent cases underline continuing constructions of rape in terms of specters of compensation and fraud, and the role of law in buttressing norms of kinship/conjugality over sexual agency. The task for feminists is to engage with ongoing legal constructions, challenging erasure of sexual agency or marriage as optimal solution, and seek signifiers transforming power relations encoded in rape.
This paper is an attempt to capture the unspoken and unwritten narrative of the ‘invisible’ women who are the subject of First Information Reports, FIRs in Pakistan. It builds upon previous research comprising analysis of 25 years of case law from the superior courts in Hudood cases. A major finding of that study was that in the vast majority of cases, Hudood laws were used as a tool for controlling women’s sexuality and to settle scores of male members of the family and community. A significant percentage of convictions were overturned on appeal leading one to question grounds of the initial conviction, the legal framework and its implementation by law enforcement agencies as well as notions of honour and shame among communities. Drawing upon fieldwork conducted in two cities, Rawalpindi and Peshawar, before and after the adoption of the Protection of Women Criminal laws Amendment Act 2006, this paper argues that the narrative has not changed with the passage of this law. The sample consists of 113 FIRs entered under Hudood laws in 2 police stations in Rawalpindi and 2 in Peshawar spanning a period of 5 years and also include FIRs registered after the Protection of Women Act 2006 to date. This sample thus provided multiple sites of evaluation of law as an effective mechanism for the protection of women. The transition from the Hudood laws to the Women Protection Act throws up some basic questions around the power of the law and governance relating to class, gendered agency, corporeal violence and political discourse.
In this paper, I detail the relationship between public secrecy and the law. I argue that the socio-legal process encapsulated in the word “compromise” (or samadhan, the coexisting Gujarati usage) is an exposition of how secrecy may be thought of as ‘indispensable to the operation of power rather than as an abuse of power’ (Taussig 1999:57). Unlike other forms of out of court settlements described as mechanisms of alternate dispute resolution, plea-bargaining or mediation, compromise is not legal in rape cases in India. Hence, we find that court transcripts or trial judgments do not record that the accused and the complainant had reached a compromise. Yet we find that rape cases are routinely compromised in lower courts. Does this mean that these are “false” cases? What kinds of traces of compromise are found in appellate judgments? How then is a rape case compromised in the trial court? Who compromises them? How may we understand the socio-legal processes that lead to prosecution witnesses turning hostile, and thereby making a compromise meaningful? These legal narratives are juxtaposed with an ethnographic account of a case that was compromised in a trial court, in Gujarat, where I conducted fieldwork in 1996-1998. I argue that compromise as a form of public secret is not destroyed by its utterance before the Judge but is subjected to a specific revelation in court (see Taussig 1999). This specific revelation in a courtroom is actualised through the law of evidence, where we find that the prosecution witnesses turn hostile to the prosecution case. Trial transcripts or trial court judgments do not record these as compromise cases except as a residue via the category of hostility. The ethnographic account of the way testimony is structured in a compromise case demonstrates how this effacement in law produces a specific revelation, which is perceived somehow to perform “social justice”. The case of compromise illustrates how legality is actually perceived as disruptive of sociality; in this instance sociality that is marked by caste based patriarchies, and social justice in the domain of state law is possible only as a public secret. Such that, compromise is actively perceived, to put it in the words of a woman Judge of a district court, as a mechanism for ‘restoring social relations in society’. I argue that in compromise cases while the structure of the trial is altered in that it does not constitute itself as a sexualised spectacle, but in doing so celebrates the potential of the trial to injure the victim. I detail the story of the hostile witness, which is inflected by public secrecy. For compromise to be effective it is dependent on law, which authorises itself by systemically producing hostility. Here, the trial Judge appears as the embodiment of sovereign power and his power is defined by his monopoly to decide. The everyday exception allows for the actualisation of compromise. If hostility emerges as the residue in judicial texts, the ethnography of the trial remains complicit in the making of the public secret.
This essay is about the complex ways in which women become subjects of legal system when the process and outcome of a trial is inflected by ‘mental illness’. It is about how these women, labeled as ‘mentally ill’, represent and negotiate their selfhood and dignity in the language of law. Further, the paper also attempts, to identify the limits of what the legal recourse actually offers these women, in terms of what they are seeking. Considering that the law enjoys the status of being the primary legitimating discourse, how does it conduct itself in the context of violence and the family? It is well known that legal cognizance of mental illness can nullify contracts, marriages, capacity to hold and manage property, custody of children, etc. In the criminal law, it can even result in committal to a mental hospital and non-culpability of the crime. In securing divorces, legal scholars have noted that there is a disproportionate and inappropriate use of the insanity provision against women. Any ‘evidence’ of diagnosis of mental illness disempowers the individual both legally as well as morally. The significant continuities between sanity and insanity, capacity and incapacity often go under the radar of the law. As a legal practitioner in the domain of family, I think it is crucial to investigate the details of the process in which the law decides. The structure and the limits of the law are discernible more sharply in the process than either in the statute or in the judgment. Any trial is a wealth of detail, contradictions and serendipities. Judgments are accounts recorded by the judge: a narration of facts as arranged and prioritized by him. He orders the evidence, borrows (selectively) from precedent in support of his array of facts, weighs the probabilities of evidence, and arrives at a decision. The judge’s account, in general, is adopted as data of the legal discourse. However, judgments rarely tell us the many foci of the case: the circumstances under which the law was petitioned, the presentation of ‘facts’ in the petition, the difficulties of procuring the right kind of evidence and the possible out-of-court settlements. Keeping these questions in mind, I recount here, a particular woman’s legal battle to retain the custody of her child and thereby attempt to: a) reflect on the process of ‘production of legibility’ for the trial and thereby observe how the legal process demands familial violence to be pleaded and argued; b) foreground the atmosphere of disconnect and coldness in which the law hears the claims of women in distress; c) document the complex ways in which alleged or real mental illness of a woman constitutes her familial life, and figures in the legal process. Using the framework of feminist critiques of the law, the paper hopes to make visible the uncertainty and unpredictability of the promises of the law.