Connect with us

Opinion

Consent in a man’s world

The Kashmir Monitor

Published

on

IST


By Mrinal Pande

Men in India, when they challenge a woman’s rape charge in court, will try to feed the still-pervasive belief that women fabricate rape charges after consenting to sex. (Illustration by C R Sasikumar)

“If you want to know more about femininity, enquire from your own experience of life, or turn to people, or wait until science can give you deeper and more coherent information.” Sigmund Freud ends his essay, ‘On Femininity’, with these lines. They are a somewhat testy but frank acknowledgement of the limitations of even his own vast research on the subject. Today, we could do with some of that humility.

In the decades since Freud wrote this, a new world order has risen and mutated. During the 1960s and ’70s, when this writer was living in the US, feminism was all about raising consciousness. That meant various women collectives getting together regularly outside of family circles, and sharing stories about their lives, like members of the Alcoholics Anonymous. At these meetings, after some hesitation, women emerged from being in denial and swapped intimate stories about relationships, work, life goals and sexuality. Tears flowed as they articulated the pain they felt, about the lack of protective nets they needed as young confused girls, the broken trust resulting in deep dilemmas they faced as daughters, wives, mothers. It was through these first-hand narrations that women realised their individual failures were not personal failures but stemmed from their gender being perceived as rooted in sex: Men defined themselves in law and life as aggressive and powerful and women as the receptacles for their sexual urges and producers of their legitimate offspring.

Now, digital media has acquired a life of its own and become a public space that allows various marginalised groups to share their hitherto unpublicised insights about the power structures and hierarchies that exclude them but act as their authorised spokespersons. Of course, riding the great tidal wave of an open-ended show-and-tell has both a good and bad side to it. But it is because of this free space that, for the first time in India, working women are able to tell the world what it has actually been like to be at the receiving end of all those sexist jokes, misogyny, porn and rape or near-rape.

It is entirely understandable that most of the first stories came from the media. Given the sheer mass of women in media today and their rise to positions of power, it makes sense that women reporters feel comfortable enough to blow the whistle, some after more than a decade, and discuss their harassment with clinical precision — with dates, times and places. Their tales are universal and reveal that the real problem is not that Indian men treat women badly (although they often do), but that at the workplace it remains a male prerogative to decide who to treat badly, how and how often, and what should be a suitable “punishment” for those who deny them sexual favours.

The late Justice Leila Seth, who was on the committee that gave us the revised law against sexual harassment and rape, has observed in her book Talking of Justice: People’s Rights in Modern India: “The approach generally taken with gender equality is that women are different from men because they are weaker and more subordinate and consequently need protection… the protectionist approach actually reinforces the difference and perpetuates it.” The tales of sexual harassment — as they unfurl and multiply — prove her words. They reveal how in a work environment dominated by an extremely powerful near-tyrannical boss, the supposed power of a young female trainee to say “no” is actually the obfuscation of her actual lack of power to stop him without losing both her job and her reputation and maybe the possibility of getting another job. The routines, stratagems, denials and traps in Indian workplaces, laid bare by the young women’s testimonies before us, are what still makes easy mobility and maintaining their dignity well-nigh impossible even for the most talented young female journalists.

Men in India, when they challenge a woman’s rape charge in court, will try to feed the still-pervasive belief that women fabricate rape charges after consenting to sex. According to them, women distort the experience. Men seldom consider the reality of sex as anything beyond their own experience of it. But as many stories that have surfaced of late reveal, in the mind of male sexual predators, sex actually represents and enforces the ultimate subordination of women to men. No wonder, then, they claim they thought her resistance or disinclination was a deliberate spur to more ardent love-making.

Surely, in some cases, there may be incentives to lie. But the deeper problem is the frequent legal assumption that a single objective state of affairs existed. And it must be determined by evidence. Lawyers representing the perpetrator thus often go on to divide women into spheres of consent, according to the indices of their relationship to men. From the extent to which the perpetrator knows the victim and they have had sex, her consent is inferred. The inference is: Our client does not rape women he does not know. And if he knows them and has consensual sex with them, how can he be held guilty? Men will mostly define rape in terms, where force and sexual desire are a total package. Here, the law’s problem becomes distinguishing rape from acts misconstrued by the victim as “mere sexual violation” in specific cases. Is it any wonder, then, that most raped women feel that the revised law against rape under such circumstances remains virtually unenforceable as applied to them?

Law is a society’s text, its rational soul. Our courts have recently introduced commendable changes by amending some laws and de-recognising a few colonial ones. Should they now really wish to reflect upon the issue of the sexual exploitation of women, they must acknowledge how much the legitimacy of much of our laws has been derived by force and at women’s expense.


The Kashmir Monitor is the fastest growing newspaper as well as digitial platform covering news from all angles.

Advertisement
Loading...
Comments

Opinion

In Pakistan-Justice on Trial

The Kashmir Monitor

Published

on

By K. K. Shahid

On October 31, the Supreme Court’s three-member bench announced its verdict in favour of Aasia Bibi, who had been sentenced to death on charges of blasphemy. Chief Justice Mian Saqib Nisar, Justice Asif Saeed Khosa and Justice Mazhar Alam Khan Miankhel, heard Aasia’s final appeal and decided that there was no evidence against her, upholding the appeal against the Lahore High Court’s (LHC) October 2014 verdict.

Aasia, a Christian woman, was convicted under Section 295-C of the Pakistan Penal Code for “defamatory statements against Prophet Muhammad (Peace Be Upon Him) during an argument with three Muslim women.” She was sentenced to death by a trial court in November 2010, with the verdict being appealed in the LHC.

Her counsel, Saiful Mulook, argued that there was an ulterior motive in the allegations, citing that the incident, which took place on June 14, 2009, was reported five days later, on June 19. Mulook also reiterated that the prayer leader who had filed the case was not present during the incident in question.

“What we can conclude from your statements is that the prayer leader himself did not witness the incident as it happened,” said Justice Khosa, in a hearing on October 8, following which the verdict had been reserved. “No blasphemous language was uttered in the presence of the prayer leader.”

While announcing the final verdict on October 31, CJP Saqib Nisar explained why Aasia Bibi had been acquitted. “It is a well settled principle of law that one who makes an assertion has to prove it. Thus, the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt throughout the trial,” he said. “Presumption of innocence remains throughout the case until such time [as] the prosecution [provides the evidence which] satisfies the court beyond reasonable doubt that the accused is guilty of the offence alleged against him.”

After the verdict was reserved, the Tehreek-e-Labbaik Pakistan (TLP) sensed that the proceedings were tilting in favour of Aasia Bibi’s release. It vowed to take to the streets in protest.

“[The] judges’ remarks created doubt and fears among party leaders that Aasia’s conviction may be set aside to stop her execution,” said TLP Patron-In-Chief, Afzal Qadri, at a party gathering. Unsurprisingly then, outrage spread among radical Islamist circles as soon as the verdict was announced on October 31. The TLP Chief, Khadim Rizvi, had already released a message on social media asking the “lovers of Prophet Muhammad” to come to the streets. “If the blasphemer is released then be prepared to give any kind of sacrifice until the centre overturns the decision,” he said in the video.

Soon thereafter, protesters began blocking roads and vandalising property in Karachi, Islamabad and Lahore. Activities came to a halt nationwide, as mobs instigated violence against the judges and called for mutiny within the Pakistan army, against the Chief of Army Staff, General Qamar Javed Bajwa.

Eventually, an agreement was signed between the TLP and the government, on November 3. It stated:

a) A review petition has been filed against the verdict in the Aasia Bibi case, which is the petitioners’ legal right. The government will not object to it.
b) Legal proceedings to put Aasia Bibi’s name on the Exit Control List will begin immediately.

c) Legal action will be taken for all those martyred in the protests against Aasia Bibi’s release.

d) All those arrested during the protests will be released immediately.

e) The TLP regrets any damage or hurt caused during the protests.

The government’s signatories were the Federal Minister for Religious Affairs, Noor-ul-Haq Qadri, and the Punjab Law Minister, Raja Basharat, while Afzal Qadri and Mohammed Waheed Moor represented the TLP.

With the review petition yet to be heard, the TLP leaders reiterated that if the verdict was not overturned, they would take to the streets again. They underscore the significance of the Aasia Bibi case, maintaining that it is unlike any other.

“[The] TLP wants her to be hanged because she is a proven offender,” said TLP spokesman Ijaz Ashrafi. “If she’s set free the retaliation will be many times greater than that during the Faizabad dharna. Blasphemy is unlike other cases, because it is purely a religious matter that needs to be dealt with under the light of the Quran and Sunnah, which mandates death for blasphemy. No other opinion can be taken,” he added.

The TLP leadership argues that the party’s position on blasphemy and the Aasia Bibi case should not be misconstrued as hostility towards religious minorities as a whole. “Please don’t mistake it as anything personal, or against Christians,” said Ashrafi. “The TLP plays its part in helping out Christians as well, wherever possible.”

Veteran activist and spokesman of the Human Rights Commission of Pakistan’s (HRCP), I A Rehman, meanwhile, lauded the verdict. “Justice has been finally been done in the Aasia Bibi case,” he said. There was no case against her from the get-go and the claims [against her] are nonsensical.” Rehman questioned the motivations of the TLP and other radical Islamists, for issuing violent threats until a judgment of their liking is announced. “They are initiating campaigns saying that they will slice the throats of whoever even speaks in her favour,” he said adding, “The Supreme Court decided on merit and it should not be influenced by the noise that is being made, because if this kind of influence is accepted then it will be a bad day for justice and the law in Pakistan. The government should take every step to protect the minorities.”

In an interview with Agence France-Presse (AFP) prior to the final verdict, Aasia’s family had expressed optimism that the decision would be in their favour. “We are hopeful that whatever the court proceedings are, it will be positive for us,” said Aasia’s husband Ashiq Masih. “I will be very happy the day my mother will be released,” added her daughter, Eisham Ashiq. “I will hug her and will cry meeting her and will thank God that he has got her released.” However, the family conceded that if Aasia was released, they would find it extremely hard to continue living in Pakistan and had already applied for asylum in various western countries.

Amnesty International’s Deputy Director for South Asia, Omar Waraich, criticises Pakistan’s inability to maintain the rule of law. “Aasia Bibi’s case is the saddest example of Pakistan’s failure to safeguard the marginalised and a refusal to uphold the rule of law,” he said. “Amnesty is against the blasphemy law in all forms. We don’t think anyone should be killed for saying something,” he added.

He continued that two prominent politicians – former minorities’ minister, Shahbaz Bhatti, and the former governor of Punjab, Salmaan Taseer – had already been killed over their defence of Aasia Bibi. Waraich says the government should have taken decisive action against the TLP mobs, unlike last year when it succumbed to pressure – and actually paid them to disperse. “It is sad that the [then] law minister Zahid Hamid stepped down under mob pressure, even though he did not do anything wrong,” he said. He added that there would have been an international backlash had the final SC verdict not been in Aasia Bibi’s favour.

“Pakistan’s case in the IMF won’t be impacted; no action has been taken against China’s human rights abuses, for instance,” Waraich said. “However, the European Union and the UK would [have reacted].”

Meanwhile, the TLP sees the verdict in Aasia Bibi’s favour as a result of international pressure. “We can see there is international pressure from the enemies of Islam and Pakistan. This is a great opportunity for courts to reaffirm the death penalty for blasphemy and uphold the rule of law,” said Ijaz Ashrafi. He added, “What this will also ensure is that people will not take the law in their own hands. They will trust the courts and not resort to mob violence. But if the court sets her free [following the review petition] people will have to take matters in their own hands, like Ghazi Mumtaz Qadri did, because of a lack of trust in the courts.”

Waraich, meanwhile, rubbishes the assertion that Pakistan carrying out the first-ever death penalty for blasphemy would result in a decrease in mob violence. “The claim is absolute nonsense,” he contended. “There has actually been an increase in blasphemy FIRs since 295-C was added to the Penal Code.”

(Newsline, Karachi)

Continue Reading

Opinion

Reconciliation, above all

The Kashmir Monitor

Published

on

By Martha C. Nussbaum

“How can we bring empathy and forgiveness into the conversation on terror?” I can’t begin to answer this urgently important question without first dissecting it. Dissection will help us see that empathy, while often valuable, is morally slippery. Forgiveness, too, is a double-edged ethical instrument, sometimes helpful but all too often tainted by an unpleasant air of superiority. I’ll conclude that there are some other attitudes we need: Respect for humanity, generosity, and the courage to seek reconciliation.

Empathy first. As usually defined, it is an imaginative exercise in which one sees the world from the other person or group’s viewpoint. Empathy, so defined, is morally neutral. Skilled torturers will cultivate empathy for the people they intend to torture, because empathy shows them how to cause maximum pain and humiliation. Therefore, if empathy is to have moral worth, it must be combined with other attitudes, such as respect and goodwill. Nor is empathy necessary for a morally valuable view of the other. Throughout history, courageous cultural pioneers (for example, the emperor Ashoka) have shown kindness and respect to nonhuman animals, and this decision to show concern need not rest on a prior attempt to understand how these animals see the world (although in Ashoka’s Buddhism, a sense of the shared badness of suffering was surely prominent).

Nonetheless, empathy is often morally helpful as flawed people work their way toward respect and generosity. We have an unfortunate tendency to think of adversaries — whether in a personal divorce litigation or in a political struggle — as monsters or aliens, totally unlike our virtuous striving selves. Seeing the other party’s point of view removes that sense of estrangement and opens the door to understanding. An example will help. In the gay rights movement, in both India and the US, there was long a righteous sense, on the part of dominant straight people, that gays and lesbians were totally monstrous and unlike their own nice acceptable sort of desire. A politics of empathy, in which gay people came out and told their stories, showing that they wanted love, had parents and children, wanted human dignity like everyone else, has had enormous success in doing away with callousness and aggressive domination. Empathy by itself is not enough, but it can often open the door to respect and the willingness to acknowledge dignity.

But what about violent criminals? Isn’t empathy in that case akin to an objectionable complicity? Not in the least. All the great legal traditions urge us to accord criminals justice and to respect their human dignity. This won’t happen if we don’t see them, first, as human, and with empathy, dissolving the hard shell of arrogance with which most of us view violent criminals, often reveals a complex world of pressure and need, leading us to see that even we ourselves might have committed a crime — maybe not terrorism, but something bad — had we had such a bad starting point. The US system of criminal justice holds that criminal defendants have a basic constitutional right to narrate their story at the penalty phase of a trial in order to ask for a merciful penalty, emphasising the “common frailties of humankind” (I’m quoting from a landmark Supreme Court case) that brought them into a criminal life. The general idea is that even a limited empathy can dissipate hatred and lead, not to exoneration, since this is the penalty phase, after conviction, but to a less draconian punishment.

What of forgiveness? As usually defined, forgiveness is the waiving of angry feelings toward someone as the result of a process in which the offender confesses, apologises, and promises not to offend again. The process standardly involves significant abasement and even humiliation. All this is deeply built into the idea of forgiveness as understood in institutionalised Christianity, with its rituals of confession, absolution, and penance, and lay attitudes are often modeled on these rituals. Whatever one may think of the religious ideas involved (does God, in any reasonable conception, really want flawed humans to grovel?), the human variant is often morally unpleasant. We are accustomed to erring politicians groveling before the public and promising not to do again whatever bad act they did, as a condition of being restored to respect and even favour. But is this a mutually respectful way to conduct relationships among flawed people? To me, it is tainted with smugness and a pretence of virtue on the part of the offended.

Far more morally promising is an attitude of unconditional forgiveness that one finds frequently in the Christian gospels and at times in the Jewish tradition: The offended party waives angry feelings unilaterally, without waiting for the offender to grovel. Even here, however, we often see smugness: Look how noble I am in my forgiving attitude. St Paul remarks that we ought to forgive unconditionally because in so doing we will “heap coals of fire” on the heads of our enemies. That’s the problem I have with even forgiveness of the unconditional type. And there’s the further question whether it is so virtuous to give up feelings of anger and hatred: Perhaps one should not have had them in the first place.

What seems a lot better to me is an attitude that combines respect for basic humanity with a generous openness toward the future, acknowledging past wrongs but not defining them as eternal sources of division — looking, instead, toward a future of cooperation and reconciliation. In my nation’s own bitter civil rights struggle there was, and still is, great anger toward white oppressors. But I am with Martin Luther King, Jr: The anger that people bring to a movement to justice needs to be “purified” and “channelised”, keeping the spirit of courageous protest against wrongs, but getting rid of the retributive desire to bring offenders low and make them suffer. Instead of retribution, he urged his followers to proceed into the future with faith and hope, and the hope should include an idea of reconciliation even with those who have committed great wrongs. That attitude was not weak, as some of his critics said, it was strong and courageous. King resisted one of the most powerful human impulses, the retributive impulse, for the sake of a future of cooperation and peace.

The attitude King recommends is often assisted by empathy: Instead of building walls in our imaginations, we need to try to tear them down, and reconciliation is greatly promoted by that difficult spiritual exercise. Sometimes reconciliation with the actual individual criminals proves too much but we can always move into the future without hatred for a group or a people. It helps to think of children. King said, “I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words ‘interposition’ and ‘nullification,’ one day, right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.” King did not ask his followers to love that governor (although, remarkably, Governor George Wallace later underwent a religious conversion and renounced his racist ideas); he just says, let’s prepare for a future in which children can play together. That generous vision is much larger than forgiveness, which is all about oneself. Building a future requires stepping outside of the self, with imagination and the courage of hope.

(Indian Express)

Continue Reading

Opinion

Amid institutional decline

The Kashmir Monitor

Published

on

By Arun Kumar

Allegations of interference in major institutions have been the big news of late. The ongoing fracas in the Central Bureau of Investigation (CBI) has got out of hand, with the two top officials in the chain of command accusing each other of corruption. The recent pronouncements in the Supreme Court do not promise an early resolution.

The fight against widespread graft in the country has been set back. The Deputy Governor of Reserve Bank of India (RBI) has highlighted the serious consequences if there is an erosion of its autonomy. The intervention by the Supreme Court in the CBI issue places a question mark on the independence of the Central Vigilance Commission (CVC) and the functioning of the government as a whole in making key apointments in the CBI. The CBI controversy has also left an imprint on the Intelligence Bureau and the Research and Analysis Wing.

The list of institutions in decline is long. The ongoing #MeToo movement has exposed the sordid goings-on in large swathes of the media and the entertainment industry. Earlier too, the Election Commission was under a cloud over the announcement of election dates, action taken against some Delhi legislators and the functioning of electronic voting machines. The functioning of the judiciary itself has been a cause for concern. Then there is the attempt to introduce Civil Service Rules in Central universities, an attempt to erode the autonomy of academics. The crisis in the banking system and the huge non-performing assets that overrun their balance sheets impact the viability of the financial system.

The storm is gathering pace. The decline of institutions in India is not recent. In 2016, demonetisation brought out the centralisation of power and a lack of consultation with important sections of the government. The chaos prevailed for months and about 99% of the money came back into the system, thus defeating the very purpose of carrying out this draconian measure. Those with black money escaped and those who had never seen black money were put to great hardship. The RBI and the banks were marginalised.

The CBI imbroglio is no surprise. Political interference in the agency and corruption among its ranks have been talked about but are hard to prove. The Supreme Court, in 2013, even called the agency a ‘caged parrot’ but this was not concrete enough. The political Opposition when feeling the heat of various investigations has always accused the agency of being its ‘master’s voice’. Now that the spat within has come out in the open, with a spate of accusations, these fears have become all the more credible.

The rot has set in deep, with charges of government manipulation in crucial cases. With the Vineet Narain case, in the 1990s, the Supreme Court tried to insulate the CBI from political manipulation by placing it under the supervision of the CVC. But that has not worked since the independence of the CVC itself has been suspect.
Why is the autonomous functioning of the CBI and CVC such an irresolvable issue?

The CBI is an investigative agency largely manned/controlled by personnel drawn from the police force. And this is a force used to doing the bidding of the ruling dispensation. The rulers themselves commit irregularities in the routine and depend on the police to cooperate with them. The rulers cannot pull them up in their own self-interest.

In the police, there are ‘wet’ and ‘dry’ duties where money can be made in the first but not in the second. Being on the right side of the political masters is lucrative. While earlier there may have been few such officers doing political bidding, now it seems they dominate.

It is akin to having a ‘committed bureaucracy’, an idea floated during the Emergency. The issue is: Committed to whom? To the national interest or to the rulers?
The rule of law is being subverted and illegality being committed on a large scale. Growth of the black economy is a measure of illegality. It has gone up from 4-5% of GDP in 1955-56 to the present level of 62%. It has become ‘systematic and systemic’ and eroded institutional functioning all across the board. This has damaged institutions.

Institutions provide the framework for individuals and systems to function. Their breakdown leads to a breakdown of societal functioning — democracy is weakened, the sense of justice is eroded and the Opposition is sought to be suppressed. The tainted not only survive but also get promoted and damage institutions.

If institutions are strong, they are respected and it becomes difficult to manipulate them. It enables the honest to survive. In strong institutions, individual corruption is an aberration but when they weaken, it becomes generalised. It leads to individualisation, illegality becomes acceptable and the collective interest suffers. Even an ‘honest’ Prime Minister tolerated dishonesty under him. The dilemma is, can a dishonest system be managed honestly?

Continue Reading