UNCIVIL WARS: Pathology of Terrorism in Indiaby Ved Marwah. HarperCollins Publishers India, Delhi, 1995.
BULLET FOR BULLET: My Life as a Police Officer by Julio Ribeiro. Viking, Delhi, 1998.
NOT A LICENCE TO KILL: Police Needs Paradigm Shift by Rajendra Shekhar. Konark Publishers, Delhi, 1999.
POLICING A DEMOCRACY: A Comparative Study of India and the U.S. by R.K. Raghavan. Manohar Publishers, Delhi, 1999.
THE POLITICS OF CRIME AND CORRUPTION by N.K. Singh. HarperCollins Publishers India, Delhi, 1999.
INSIDE C.B.I. by Joginder Singh. Chandrika Publications, Delhi, 1999.
THE Indian Police, as indeed the police in all countries of the subcontinent, have traditionally been locked in a somewhat adversarial relationship with the mass of the people. The latter too, on their part, have rarely found it possible to adopt anything but a cautious and wary stance towards the law enforcers. The uncommonly confrontationist correlation between the citizens and their police agencies reflects a deep-rooted distrust, suspicion and hostility each entertains for the other. Unlike in mature democratic societies where a degree of trust and confidence has been built up by law-enforcement agencies vis-à-vis their public, the Indian Police and its functional modes have been markedly oppressive and state-supportive.
The Indian Police, as it evolved in colonial and pre-colonial times, came to acquire a sub-culture which placed it distinctly on the other side of the fence from the common man. The British Indian government, alarmed by the cataclysmic events of 1857, reorganised the police in India and invested it with a legal framework in 1861 so as to make in an efficient instrument in the hands of the colonial power to ward off any future challenge to its authority. The Indian Police Act of 1861, the Indian Penal Code and the Criminal Procedure Code of 1862, which collectively created the new criminal justice system in the Indian subcontinent, continue to lay down the functional and legal parameters for the police forces even half a century after Independence.
The vastly different expectations from the systems of crime control and law enforcement, generated by massive societal changes after Independence, remain substantively unfulfilled, thus enlarging the areas of conflict and disharmony between the police and the people. The only basic law which was sought to be amended to fit into post-Independence requirements was the Criminal Procedure Code. The new code, however, created more problems than it solved.
The police was left alone and except for pious exhortations and cosmetic exercises to improve its relations with the public, little was done to restructure it as a citizen-friendly institution to provide a secure environment in a free society. It was not long before the new ruling classes realized the value of a ruler-supportive and servile police force to sustain them in power and set their face resolutely against any suggested police reforms. Numerous state police committees and an eminently constituted National Police Commission, set up to examine the vital issues ailing the Indian Police, and their detailed recommendations, failed to make a dent in the political and bureaucratic citadels of resistance.
In the event, a colonial set up, moulded in mid-19th century structural and social mores, and governed by antiquated legislations reflecting the needs and philosophy of a totally different society, continue to determine law enforcement norms in a radically changed milieu. The continuing decline in levels of police performance over the years was attributed primarily to growing inefficiency and venality in the departments, although basic educational standards, training inputs and scientific aids available to investigators had greatly improved.
It was not till recently that the systemic flaws and shortcomings inherent in an outdated legal framework came to be perceived as responsible for the ills and inadequacies of the Indian criminal justice delivery system. Diagnostic studies were carried out by a few sociologists to pinpoint the root cause of decay and degeneration in police and administrative efficacy in serving a democratic society. Not unexpectedly, many socially aware, articulate and enlightened police leaders, deeply concerned at the functional dilemmas faced by ordinary policemen in their daily routine in an increasingly politicised and compromised administration, soon joined the scholars in their search for the real malaise afflicting the police and its relationship to society.
Needless to add, not all such efforts were worthy of serious notice but many did come close to hitting the nail on the head. In any case, the views from within serve a timely need; the books under review considerably enhance the readers’ awareness of the dismal environment in which the Indian Police has to function. Several titles come to mind in this respect. Some others have been left out as this reviewer could not lay his hands upon them. Among the latter, Vijay Karan’s book, for instance, would surely be worth a read.
As a class, civil servants in general and police officers in particular learn early in service to tailor the views they express in writing or verbally to suit their bosses. Their professional compulsions require them to avoid controversy and seek to conform. Those who fall out of line are frequently labelled as tactless, indiscreet and idiosyncratic – qualities which do not contribute to career advancement. The urge to freely and fearlessly express themselves, which remains bottled up during a long service career, suddenly becomes uncontrollable after superannuation. The recent glut of post-retirement memoirs by civil servants could be a manifestation of the new political and bureaucratic sub-culture which strongly discourages dissent or inconvenient advice. Most such accounts, unfortunately, are heavily individualistic, often egocentric but not event oriented. In the process they add little of value, except obliquely to the reader’s knowledge of the functional complexities of their erstwhile organisations.
Of the six books under review only two – Uncivil Wars, and Policing a Democracy – can be categorised as scholarly and analytical studies, aiming at objectivity and perspective, though not necessarily achieving full impartiality. Significantly, both were the products of research undertaken at well-established institutions with rich libraries and knowledgeable guides or peer-group. The other books come out as off-the-cuff deliveries, banking largely on memory and notes (or copies of documents carefully preserved) dating back to the pre-retirement access to official sources and data. Occasionally, a helping hand in the form of a ghost writer or experienced editor comes forth to guide and refine the text.
Often a publisher is interested because the author has established a reputation which could, be a major help in selling the product. Invariably, the writer has a motive, not strictly creative or altruistic, in coming out with the memorabilia. The motive could be to explain certain allegedly incorrect impressions, to vindicate one’s position, highlight achievements, expose inconsiderate seniors and so on. In most such cases, the end product lacks thematic or expositional specificity. Also, most publishers would like to capitalise on the name and fame of the potential author. It is said that the title of Ribeiro’s book was actually selected by the publishers who saw in the striking three-word phrase an attractive selling point, though Ribeiro himself goes to considerable lengths to refute the imputation that he ever uttered, much less promoted, the mantra of ‘bullet for bullet’, so inextricably linked to his name.
Uncivil Wars is Ved Marwah’s study of the phenomenon of terrorism in various Indian states, but mainly in Jammu and Kashmir, where he had served as advisor to the Governor. That he had an insider’s access to the excellent institutional facilities at the Centre for Policy Research would have been of great benefit. Also, the book makes available a great deal of statistical, descriptive and other data, packed in numerous appendices and annexures – information which an ordinary reader would find hard to access. Unfortunately, even though he presents the arguments in a supposedly academic format, Marwah often indulges in snipping at former colleagues, a practice which is apt to raise problems of various kinds. On the whole, the book presents a difficult subject in a pragmatic manner.
Bullet for Bullet, according to its author Julio Ribeiro, was written in response to ‘the insistence of my many friends and the many requests from junior officers.’ As already pointed out, he has vehemently protested against his name being popularly linked with the phrase that provides the title of the book. Whether he uttered those three (in)famous words or not, the policy guidelines to handle the terrorist menace inherent in the statement, were enthusiastically and no doubt effectively taken up by his subordinates and, at a later date, successfully hijacked by his successor, the only other ‘supercop’ in Indian police history.
The book itself is highly didactic and ‘preachy’. Basking in the glory of all-round acclaim towards the fag-end of his career, the author perhaps could not avoid adopting a somewhat patronising tone. His description of the training routine at Central Police Training College, life in the mofussil, the endless struggle against political and other interventions in his work make interesting reading, except that at every stage he labours hard to point out the lessons to be drawn. Perhaps he aimed to make the book a sort of textbook for police trainees.
The tendency to indulge in snide comments about former colleagues, both senior and junior, is sadly too apparent to ignore in any effort at evaluating this otherwise very interesting work. Also, one wishes that a writer of Ribeiro’s calibre had not so painstakingly tried to justify his rather obvious links with the media. His laboured defence of what he calls ‘undercover’ operations against terrorists, which he initially approved but later tried to distance himself from, may be due to the fiascos into which they degenerated, fails to carry conviction. After all, the eternal means-ends debate does have some relevance in such situations. Surely, he was not unaware of the incongruence.
Rajendra Shekhar’s obsessive fondness for management jargon and near exclusive reliance on western sources to make his obvious points, actually handicaps his efforts to harness modern managerial concepts to address the numerous problems confronting the Indian Police. Many of us, who had the privilege of being exposed to management and behavioural sciences at a certain stage in our police career, were fascinated by the possibility of applying them in hand-ling police affairs. However, since the structural and legal underpinnings and cultural make-up of policemen did not change, we had to soon retreat and redefine our priorities.
The excessively chatty style of presentation, determined evidently by his enchantment with American writers, takes away from the seriousness with which vital questions of policing deserve to be dealt with, besides being contrived. The organisation of ideas and topics is often haphazard, with little attention to sequence or coherence. On page 12, he casually skips from the use of Section 107 of the Criminal Procedure Code to terrorism and then on to custodial violence – all in a few sentences.
There are quite a few factual inaccuracies, possibly resulting from a casual approach to detail. A few examples will suffice: The ICS and IP were not All India Services, they were Secretary of State Services (p. 23). A superior police service was created for the first time in 1893 and it was called the Indian Police Service, not Indian Police (IP) – the latter title was adopted two decades later on a representation made by the service association (p. 29). Akhand Kirtani Jatha was not a Sant Bhindranwale creation. It was a distinct entity; in fact, the Jatha later fell out with the Sant (p. 40). Minor points, but indicative of inattention.
Policing a Democracy is an excellent compilation of very valuable data relating to criminal justice in India and the United States. Raghavan has laboured hard to collect and process statistical evidence in many areas of policing and crime control to reveal the underlying similarities in the challenges faced by the Indian and U.S. police forces in handling crime and public order problems in large democracies. Though on the face of it the comparison sounds far-fetched, the author marshals facts and figures as well as arguments in ample measure to make his theories fairly credible. A study of this type goes a long way in bridging the information gap between the world’s police forces, for the rapidly improving communication and travel facilities have sharply expanded the sweep and span of criminality.
Law-breakers are no longer deterred by national frontiers. Come to think of it, aren’t police attitudes to problems and dilemmas, created by excessive political interventions in democracies, broadly similar? Raghavan cogently puts forward many eminently workable strategies to help the police in more successfully coming to grips with their charter of duties. Instances from the U.S. Police on mission statements (p. 180), findings of the Citizens’ Crime Commission (p. 182), operation cul de sac (p. 185) and the ‘broken windows’ experiment in New York, provide useful pointers on how to develop identical strategies in our own context.
He also devotes considerable attention to explain the community policing practices in the U.S. and India to highlight what is lacking in our version of community policing. Also, why our police has miserably failed to win public support and the requisite degree of credibility, inspite of many enlightened police leaders trying hard to change its image and sub-culture. In the U.S. a close rapport exists between universities, scholars and police leaders to provide useful fora to help look at police issues unlike in India where the administration displays no concern for improving the country’s internal security situation. These and many other questions raised by Raghavan’s book remain unanswered.
N.K. Singh’s book provides a timely reminder about the grim reality of a stinking cesspool of crime, corruption and venality that characterizes our entire political and bureaucratic system. It boldly stresses the painful fact that corruption in high places is largely a post-Independence development and cites the suspected involvement of at least two former prime ministers, several chief ministers and central ministers to prove the point.
The dubious dealings of our new democratically elected leaders leave the author a deeply saddened individual. In this connection, he also recalls with profound anguish what that arch imperialist Winston Churchill had to say in this regard. N.K. Singh employs his considerable investigative skills in unravelling the pernicious linkages between corruption and crime. His exposition of the theory and practice of venality in government and its progressively expanding span is pragmatic and down to earth. Understandably so. His style is direct and personalised, even emotionally charged. Perhaps it is a sense of personal hurt which lends his account a touch of passion. Or could it be a feeling of outrage at the painful erosion of moral values?
All the same, a strong current of dismay and anger runs through the entire book. His transparent personality peeps through on several occasions. He deals with the few cases that he takes up with painstaking detail. Not surprisingly, his grasp of the nitty-gritty of crime and criminal behaviour is thorough and elaborate. He approaches his subject with the trained eye of a seasoned and concerned policeman. It is rich in analytical detail, highly topical and involved. The book raises a number of pertinent issues. Unfortunately it too provides no answers, except vaguely placing some faith alternately in the judiciary, the police (including the CBI) and the people. Perhaps there are no answers in sight.
Inside CBI is Joginder Singh’s long-promised magnum opus. Sadly, the book grossly belies its promise. It was written in a tearing hurry and in anger, a loud work of hurt and an injured ego on having been shifted out from a high-profile position in a rather indecent manner. His response is palpably unbalanced. He should have known that he was not the first, nor the last, government official to have been treated in a shabby manner. Unfortunately, a rushed effort at vindicating one’s position, to show excessive hurt and anger at what can only be described as an occupational hazard, does not contribute to the making of good literature.
The books reviewed above have tried to high-light the crises which have overtaken the entire criminal justice system, and not only the police, in India. Many have succeeded in doing so, specially in the area of long neglected police reforms.
An incompetent, discontented and antiquated police system on the verge of collapse can neither assure a modicum of internal security to Indian citizens nor can it encourage foreign investors to increase their financial stakes in the Indian economy. The demands of globalisation and increasing interactive cooperation in the international sphere make it mandatory for the Indian establishment to take note of the vital issues thrown up by these and other recent studies. Internal security is vital to good governance, vibrant democracy and to the rule of law. A moribund system of policing in a near terminal state, conceived a century and half ago, cannot be expected to fulfil the aspirations and needs of a free people at the beginning of a new millennium.
* K.S. Dhillon, retired Director General of Police, is the author of Defenders of the Establishment, IIAS, Shimla, 1998.
POLITICAL PRISONERS IN INDIA by Ujjwal Kumar Singh. Oxford University Press, Delhi, 1998.
THIS book is not just about political prisoners; it concerns itself with the state in India, both now as well as under colonial rule. In any society where democracy is cherished, the idea of the ‘political’ acquires importance because it endows significance to what we do as citizens. This is why it has been contested from the time of the Greek philosophers. In fact, one can contend that important changes in political theory, especially those dealing with democracy, are linked to the way we think about the political as a domain. This book attempts to do so by looking at the contestation that goes into defining who the political prisoners are, a category that imparts varying degrees of respect to the victim.
For doing this it chooses the ‘prison as a "terrain" on which relationships between the state and its subjects/citizens can be explained’ (p. 4). The prison in India has for long remained an arena where the ‘political became a festering issue in the contest between the colonial state and the subject population and, later, between the state in independent India and the various rebel groups; and the manner in which the ruling classes assumed the sole responsibility of defining the political and the criminal’ (p. 3). The state in India has been studied from many different angles – constitutional, developmental, ideological character, relation to popular movements and so on. But what happens when we are lifted for resistance and taken in care of the state for defying some or other law or interest of the state?
How we are categorized and treated by the state is itself, the book makes the compelling claim, resistance against state power. ‘Political prisoner’, thus, is not a simple category, amenable to common sense definitions. The acceptance or rejection of the demand for a prisoner to be treated as ‘political’ (p. 17) is itself reflective of the notion of democracy accepted by the state. The state holds the prerogative of whom to treat as one. The struggle to alter the definition is viewed as a challenge to the authority of the state.
From this perspective the book provides a fascinating journey of such contestations from the beginning of the national movement to the Emergency in 1975-77 – a good hundred years of our history. It is rich in description and subtle in making analytical distinctions. Though in a short review it is not possible to go through all of this, in what follows I try to capture its flavour.
Penal strategies of the colonial government on the question of status of prisoners for committing politically seditious acts have a long history. It all began with the gentry seeking a different treatment in terms of food, clothing and living conditions. The national platform under the Congress and terrorist activities added to the variety of political activity which claimed the attention of the government. Though the British response was ad hoc to begin with, a discernible pattern became visible with the onset of mass movements beginning with the Partition of Bengal. In 1917 the colonial authorities created the first political prison, the conversion of the Hazaribagh jail as the only such asylum. From here begins a fascinating story. The transportation of prisoners to far-off places, was in the eyes of the government magnification of the ‘peculiar fear’ and the ‘great terror’ it inspired all because of the mystery which overhung the fate of the transported convict (p. 50).
All this soon changed. Fear was no more to be the escort of going to jail. With Gandhi and his brand of politics, prisons were to become the swaraj ashrams and going to jail no more a ‘disgrace’ but an ‘honour’. Jail was to be a ‘holy place’, where one stays to ‘enhance one’s capacity to do good’ (p. 72-75). The Bri-tish also learnt to accommodate this change in the political situation. Congressmen, from non-cooperation to civil disobedience to the Quit India movement, were to become honoured guests in the jails. But from this to think that the political prisoners got a new status is to get it wrong. And no such luck was to befall the oppressed and exploited. The workers agitations, the kisan andolans, and so on were to remain excluded from the status of being ‘political’, and continued to be treated as penal crimes.
Matters were to soon become contentious again with the Congress forming the provincial ministries in 1937. An important promise was the release of all political prisoners. But whatever the other developments, things did not change much for many a political prisoner. A great merit of this work is its search for continuity and disjuncture between the colonial rule and the state in independent India.
Once it came to power the Congress tried to carve out a narrow definition of political. There were debates about Congress and non-Congress prisoners and other kinds of agitators (p. 145, 149). The ‘Congress ministries refused to recognize peasant activists like Rahul Sankrityayan as political prisoners’ (p. 151). To see what follows it is essential to read chapter five: ‘1940s – The Painful Transition’. It is a mine of valuable information outlining the continuity of the Indian state after 1945.
In the name of national consolidation little changed. Anything awkward, inconvenient, transgressing the limit was seen as anti-national, or mildly, politically motivated. The Commies, Naxals, tribals, peasants, women and the Dalits remained inconvenient. Nehru discovered, I now see, three ‘enemies’ of the nation: the communal organizations, the Communist Party of India and the labour organisations (p. 209). Things moved on. Emergency came and terrorized and was defeated. The book argues that our people defeated the Emergency but have yet to win the war. Will they? The book avoids answering the question; in this sense it is incomplete.
Though it raises essential questions of political theory, the state and its terrain and the coercive nature of the state as integral to the state itself, it does not pursue any of these. It gets lost in descriptive details, rich as they are. It, therefore, has not answered one essential question: is the prerogative of defining the ‘political’ only a marker of the Indian state or one common to all societies, in varying degrees, which have not emancipated themselves from class domination? To what degree is the definition of the political in relation to the prisoner itself conditioned by how society conceives of the ‘political’? What are the contestations around the term? This can be seen best in the recent phase of globalization when politics in general has been devalued and there is a discernible shift from the citizen to the consumer as the valued social being.
Notwithstanding the above doubts, the book is a valuable addition to the literature on the Indian state. For the statistically minded there is a useful appendix, tabulated state-wise, on the number and treatment of prisoners during the Emergency.
Broken People: Caste Violence Against India’s ‘Untouchables’. Human Rights Watch, New York, 1998.
Dalits, officially defined as Scheduled Castes and Scheduled Tribes, constitute one-fourth (24.56%) of India’s population. In absolute terms, Dalits (20.59 crore) outnumber the combined population of France, Germany and UK, and yet, there is not a single Dalit journalist in the capital’s media establishments. Similarly, most public institutions are ostensibly run by ‘enlightened’ Indians, but Dalits continue to have a near-zero presence in them. This symbolically mirrors not only the fate of the community, but also the attitude of caste society towards Dalits.
It is necessary to underscore the above explanation to understand Broken People – caste violence against India’s ‘untouchables’. What may otherwise have been a fantastic work, had the report taken into account characteristics of India’s varna/ caste-based social organization, has instead turned into a meaningless exercise.
Dalits are subjected to violence at every level, every possible form of violence. Documentation of violent acts, field surveys, analysis and identification of underlying causes, is an essential aspect of the campaign against human rights violations. To a large extent, this exercise is undertaken by a host of state level Scheduled Caste and Scheduled Tribe panels, supplemented by a more powerful commission at the Centre. If hrw was genuinely interested in internationalizing the Dalits’ case, it could have simply reproduced one of the commission’s reports.
A human rights group like HRW should have learnt from the American experience. The civil rights movement in America, beginning from the case of the slave Dred Scott, who in mid-19th century filed a lawsuit to attain freedom, all the way to the Civil Rights Act of 1991, has revolved around a host of issues, including questions of representation in media, public institutions, the corporate world – in every sphere of social life. The movement won a major battle when the American Society of Newspaper Editors (ASNE) in 1978, decided to grant proportionate representation to minorities (African Americans, Hispanics, Native Americans) in all departments of the media. The question of diversity in America’s educational institutions is a leading human rights issue in America today.
Further, the hrw cannot claim ignorance about the recommendations of the Kerner Commission, instituted in the wake of civil disorder in the two cities of Newark and Detroit in 1969. In the ensuing racial riot 83 people were killed, mostly African Americans. The commission, in its findings, found inequality, born out of the prejudices of White society, as a fundamental reason explaining violence against the African Americans. To eliminate occurrence of such violence, the commission recommended a range of measures to eliminate the fundamental reason – inequality.
Contrary to that rich experience of the Kerner Commission the HRW, in looking at Dalits in India, commits a twin blunder: first, it perceives violence solely as a human rights question for Dalits; second, it considers violence against Dalits as primarily a law and order problem. Driven by such perceptions, the report expectedly advocates a legal solution to violence against Dalits.
The report, in its preface, makes a loud claim that the organization ‘accepts no government funds, directly or indirectly’. Why does the HRW make this point? Is it to convey the message that the organization does not seek patronage from the state which, by definition, stands for ‘repression’? The report makes a concerted attempt to portray the police machinery as the main culprit. To that end, a host of references are presented.
Based on those references, the report indicts, ‘both state and private actors as responsible for caste-motivated attacks on Dalits.’ While there is no doubt that the police indulge in criminal activities and help the accused in a reasonable number of cases, but is that the complete truth? Truth cannot be seen in ‘absolute’ terms; it is always relative. If seen in relation to violence by ‘private agents’, the police violence against Dalits pales into insignificance. In fact, it is only the police which protects Dalits, not private agents. Why then does the report target the state, considering the fact that the state is the only hope for millions of Dalits?
Misrepresentation of facts, inconsistency, and related mistakes occur on almost every second page of the report. But the authors cannot be faulted for this as they come from an alien land, and may have lacked resources and competent staff. But a few points need clarification lest readers develop a low opinion about Dalits.
The report claims that untouchables are ‘manual scavengers, removers of human waste and dead animals, leather workers, street sweepers and cobblers.’ This is factually incorrect. According to the 1991 Census, 74.5% of the Scheduled Caste workforce was either cultivators or agricultural labourers and 17.53% worked in industry, construction, trade. Of the remaining 7.97%, a large chunk was in government service. Thus, not more than 3 to 4% would be in the occupations described by the report. Why does the report make this blunder? Similarly, without checking facts, the report asserts that most prostitutes and devdasis come from untouchable communities. The hrw should immediately correct such mistakes, lest some Dalit organization drags them to court.
Chandra Bhan Prasad
Engendering Law: Essays in Honour of Lotika Sarkar edited by Amita Dhanda and Archana Parasher. Eastern Book Company, Lucknow, 1999.
In reviewing this festschrift to Lotika Sarkar, I would like to join the others, both inside this volume and outside, in honouring and celebrating an inspiring teacher, feminist activist and doughty lawyer who has always been part of the struggle to radicalize the practice of law. As one of the matriarchs of our women’s movement, Lotika Sarkar has been among those who have transformed the landscape for Indian women in the years since Independence. My generation inherits from hers a legacy of unremitting struggle and abiding optimism. Above all, we inherit a tradition of continual reflexivity and self-critique, an openness to debate and dissension, which makes the Indian women’s movement resound with contentious argument and multiple, stereophonic voices – but always engaging in conversation, always listening to one another, however bitter the quarrels.
The theme that unites the 18 essays is the question of gender justice and the law, a ‘logical and unexceptionable’ choice, as the editors point out, given the person they are honouring. However, the additional criterion of contributors having to be identified as ‘co-travellers during her personal-professional journey’, while gender was not a specialization for many of them, made the editors fear that gender would end up being an ‘add-on’ in many cases. This fear has turned out to be unfounded except in the game efforts of the late Chhatrapati Singh, D.N. Saraf and J.N. Saxena. Saxena’s piece is merely a summary of some of the provisions of the unhcr guidelines on the Protection of Refugee Women. Singh’s is an essay on wasteland development and Saraf’s on medical malfeasance in consumer cases. In both, the only way in which gender enters is tangentially, through the argument that ‘weaker sections of society’ are particularly vulnerable in the current dispensation, and women fall in this category.
However, the rest of the essays do tackle the question of gender justice head-on. I have followed my own classification of the papers in reviewing the volume, and not that of the editors, as I found three sections difficult to separate – ‘institutions’, ‘norms’ and ‘society’ seemed to me to be thoroughly interpenetrated by one another. But as Archana Parasher points out in her introduction, feminist legal scholars would not argue that theirs is the only valid view, so I offer my classification simply as a more convenient one to review by.
The first set of papers more or less goes over ground by now well-established by feminist scholarship. What makes them remarkable nevertheless, is that they reflect the echo of feminist debates within the mainstream legal establishment. B. Sivaramayya’s analysis of successive governments’ responses to the recommendations of the report of the CSWI, particularly regarding child marriage, reveals the distance between the proposals and their enactment into law. Chandrashekharan Pillai accepts that the criminal law is gender biased, but in discussing the criminal law reform proposals of the National Law Commission for Women and the Law Commission, is uncomfortable about any possibility of bias towards women. All-women courts to deal with rape could lead to the male accused not being judged impartially, he fears, and similarly, the recognition of marital rape as a crime could ‘lead to injustice all round’ since child marriages continue to be conducted. In fact Pillai’s paper is quite a classic restatement of patriarchal concern for the protection of women in the face of feminist interventions in the legal realm, while refusing to accept the full imp-lications of the notion of ‘gender justice’. S.P. Sathe, on the other hand, in examining judicial decisions raising the question of gender justice with reference to the constitutional guarantees of equality and liberty, arrives at the conclusion that the ‘engendering of fundamental rights’ requires more than the mere extension of rights to women. Rather, a ‘reconstitution of those rights’ so as to include the aspects specific to women is required.
Other papers offer feminist views on specific aspects of law. Neeru Chaddha looks at two specific legislations that affect women workers, the Equal Remuneration Act and the Maternity Benefit Act, and reiterates the feminist critique that these laws are flawed both in conceptualisation and implementation. Alice Jacob outlines the proposal made by Christian women’s groups to bring about reforms in Christian personal law, and Ved Kumari analyses the Indian Penal Code, arguing that the assumptions on which it works are patriarchal and construct the woman as victim. Amita Dhanda’s paper presents a disturbing picture of what she calls the ‘psychologising of dissent’, that is, the managing of dissent by converting it from protest to the product of a disturbed mind. The role that the psychiatric detention process plays in this process is critical, and the gender dimension emerges clearly in her presentation showing how women are acceptable to legal discourse as victims but not as protesters, a role in which they are easily labelled as insane. S. Muralidhar traces the career of one of the early public interest litigations in the Supreme Court, that regarding the Agra Protective Home. His paper raises key issues about the criminalization of sex work and the democratic rights of the women involved.
Malavika Karlekar’s paper offers a scholarly and fascinating account of a child-widow’s life in the 19th century through the first person account of Nistarini Devi herself. If it is a little out of place in this volume as the legal dimension is well to the background, that is a risk which had to be taken while balancing three different criteria for inclusion into this volume!
Anthony Lester describes the use of European community law to fight sex discrimination in Britain and ensure equal pay for women. The provision was intended to prevent any member state from gaining unfair economic advantage by exploiting women as cheap labour. But it seems that in Britain, nationalist arguments took a back seat to that of democratic rights of women workers. A good lesson to learn in our own context, where nationalism is being mobilized to protect ‘our bourgeoisie’ from the effects of the social clause condition of WTO.
I must record how much I enjoyed Usha Ramanathan’s deliciously acerbic journey through judgements from 1920 to 1950, from which she extracted all those which speak about and feature women. Through this exercise she paints a picture of the Reasonable Man and by extrapolation, the Reasonable Woman, that dominates legal discourse. Quite apart from the fact that the primary date she has collected is invaluable and her analytical skill formidably sharp, her paper is quite simply a literary delight.
The last set of papers I identify are the four which raise questions about the use of the legal strategy itself. The most notable contribution here, indeed in this volume as a whole, is the essay by Vina Mazumdar, another matriarch, a contemporary, comrade and friend of Professor Sarkar, who charts her own and the movement’s journey over the last five decades. This extraordinary essay reflects the confidence and optimism which characterized social movements in the early years after Independence. It is even more remarkable for its honesty and evident rethinking over the years. In a deeply moving footnote, discussing the confidence that the new Constitution gave women of her generation, she talks of her father, ‘a self-confessed conservative’, resolving her dilemma over the conflict between maternal and professional responsibilities. He introduced a missing ‘third factor’ – her responsibility not to waste the resources the country invested in her training.
This sense of responsibility to the nation state, and correspondingly, the expectation of progressive transformation through it, is characteristic of the generation which came of age through the anti-imperialist struggle. This confidence began to unravel after the Emergency years, and as Vina di tracks the changes, gradually the women’s movement began to focus on issues of economic welfare, particularly from the ’80s. Thus a new identity was asserted by the movement, breaking out of dominant perceptions of women’s issues as mainly social, not political and economic. What is notable is that this new identity was posited in opposition to the state, not in the spirit of partnership of the early years. In the course of this journey, says Vina di, ‘I may have lost the sense of certainty which I shared with the earlier generations of the Indian women’s movement…in viewing legislation as the major instrument for ushering in changes in social order.’ However, she still holds that a ‘historical failure at a particular point of time should not be generalized.’ Archana Parasher too restates the need to engage with the law, and to address the ‘normative inadequacies of the legal system’ through a ‘feminist reconceptualisation of legal education.’
On the other hand, Upendra Baxi in his rather idiosyncratic presentation, argues that a mere assertion of human rights without challenging the relations of social production can only be harmful. And in a profoundly significant essay, Nandita Haksar focuses on the conflict between feminist and human rights ethics on the basis of her experience as a lawyer in both fields, and presents a complex account of the contradictions involved in moving within both discourses simultaneously. Taking up the issues of obscenity/ pornography, the rights of the accused in rape cases, and property rights within customary laws of tribal peoples, she comes to the deeply challenging conclusion that ‘we should resort to the law only when the movement is strong enough to carry the law reform forward.’
This is a statement that goes far beyond the familiar litany of ‘the law is not enough’ – rather, Nandita is suggesting that continual recourse to the law is ‘a substitute for the other harder option of building a movement for an alternative vision.’ She is particularly critical of feminist initiatives to press for property rights for tribal women, because she sees this as being predicated on ‘classical human rights arguments’ which are incapable of comprehending the complex practices which make up tribal jurisprudence. She urges the need for a struggle within tribal communities to evolve new customs which are more egalitarian – ‘a far more difficult task than filing a petition under Article 14 or getting the support of women who have no stakes in the survival of tribal societies.’
What we see here is more than a historical failure of law at a particular point of time. What this intensely engaged debate suggests is that in the 400 years since the law emerged as an emancipatory tool, the political landscape has been irretrievably transformed. The law has not failed us, but we may have outgrown the law.