Trapeze Artists in a Public Square
The protests in Delhi and elsewhere have become a collective catharsis, a cry for help, an angry assertion of the right to free movement, a life of dignity and freedom from fear of rape. But what will it change?
Rahul Roy Delhi
On the evening of December 23, 2012, as I walked back from India Gate towards Copernicus Marg, I saw something that can only be described as surreal — a 20-something girl walking on the slim divider in the middle of the road, balancing herself like a trapeze artist, her arms raised, oblivious of the police vans whizzing past, groups of boys hurrying away from stick-wielding cops. I saw her walk like this, all alone, from Baroda House until almost the end of Copernicus Marg at the Mandi House circle. She was obviously on a high, the carnivalesque mood sustained despite the police having managed to clear all the protesters from the vicinity of India Gate.
This carnival, like all carnivals, seemed likely to end in a few days. With it, will expressions of freedom neatly fold back? Will ‘normalcy’ return on Delhi roads and women be rudely reminded that the carnival is over? Will the girl ever walk again in the middle of a deserted road all alone on a foggy winter evening of Delhi and feel safe?
The spontaneous outburst of protests in Central Delhi, so close to India’s power centre, by mostly young people after the gruesome gangrape of the 23-year-old student and the assault on her male friend have, as expected, elicited a range of responses from the media, women’s groups and other commentators in newspapers, social media sites, email chains, TV channels and blogs. However, unlike the participants of these protests, who insist that they will change the system, get justice, and so on, the commentators have shied away from engaging with what may be the most important question — what will emerge out of this sudden collective catharsis?
One way of attempting to answer this question would be to compare the response, both from the public and the State, to this assault with some other cases that did manage an entry into the national consciousness. The first case that comes to mind is the infamous ‘Mathura rape case’ in which a 16-year-old tribal girl was raped by two policemen in the police station compound in Chandrapur district
Masculinity is a policing system that ensures the clock work functioning of all hierarchies. It comes in khakhi, it comes in saffron or any other colour, but it comes with the threat of violence, always and without fail
The case came up for hearing on June 1, 1974, in the sessions court. The judge found the defendants not guilty because Mathura was “habituated to sexual intercourse”, her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape. On appeal, the Nagpur bench of the Bombay High Court set aside the judgment of the sessions court, and sentenced the accused to one and five years imprisonment, respectively. The court held that submission due to fear generated by serious threats could not be interpreted as consent or voluntary sexual intercourse.
However, the Supreme Court of India again acquitted the accused policemen on the grounds that Mathura raised no alarm, there were no visible marks of injury on her and this suggested that there was no struggle and therefore it could not be concluded that she was raped.
The case proved to be significant on many counts. The struggle to get justice for Mathura provided an impetus to the emergence of a collective women’s movement. As significantly, the case nailed the obvious truth that the law doesn’t replace violence but that violence is at the heart of the legal.
The Mathura rape case clearly demonstrated that the law and the legal are pitted against those who are socially and politically marginalised. In Mathura’s case, the fact that she was a tribal and a woman made it that much more difficult for her to extract justice from procedures that are geared to serve those more powerful.
The law and legal procedures assume that individual petitioners are autonomous and equal in all respects to their opponents but in reality their ability to negotiate the procedures of justice are determined by their social circumstances and factors like class, caste, gender, and so on. These factors have a direct influence on access to justice. The law and court procedures are based on an intricate and elaborate play of investigations, evidence, interpretations and arguments and the assumption that all those who stand before the courts are equal does not bear scrutiny in cases like that of Mathura. The case not only created a place for the use of a gender lens on law but also demonstrated how practices of justice had been thwarted by the operations of law.
Subsequent protests by the women’s movement led to several amendments to the law. The Criminal Law Amendment Act, 1983, has made a statutory provision in the face of Section 114 (A) of the Evidence Act, which states that if the victim says that she did not consent to sexual intercourse, the court shall presume that she did not consent.