21 June 2019

#FOEIndiaSeries | 8. Women's Existence in Patriarchy

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Processes of Regulation


Part II. Regulating the Substance of Speech


8. Women’s Existence in Patriarchy


It is undeniable that Indian society is deeply patriarchal. Unfortunately, this not only means that women’s agency and autonomy may be severely circumscribed by men, but also that women’s lives can easily be destroyed either metaphorically, with their being cut off from their finances and social circles, or literally, with their having been killed either before birth, soon after, or at some point during the course of their lives, as disease burden statistics and sex ratios almost all over the country indicate.

All too often, women are killed for reasons which are culturally familiar: a woman’s family not having provided what a husband and his family consider to be enough dowry, a girl’s family not wanting her at all because of her being a girl. The law recognizes that practices which lead to women being killed exist, and has made an effort to curtail both the practices themselves as well as speech which either encourages or facilitates them.

Although equality before the law is enshrined in the Constitution which also explicitly states, that ‘the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’ while listing fundamental rights, the Constitutional commitment against State discrimination does not make all affirmative action illegal. In fact, the Constitution explicitly states that nothing in the Article against State discrimination prevents the State from making any special provision for women and children. As such, enactments specifically designed to protect women do not necessarily offend the Constitutional scheme.

Amongst the statutes which are specifically intended to counter social practices which harm women is the 1987 Commission of Sati (Prevention) Act. Sati is, of course, an old Hindu tradition which has usually involved burning widows along with their husbands’ corpses. Apart from concremation (where both spouses are cremated simultaneously), there are two other forms of Sati which are possible: the cremation of a wife after her husband had died and been cremated, and cremation in anticipation of widowhood. Western accounts of the practice date back to the time of Alexander’s invasion of the subcontinent, at which time the Greeks seem to have suspected that it had developed to discourage wives from poisoning their husbands.

By the time of the Raj, Sati became a practice which the British found abhorrent and passed legislation against. Their propaganda appears to have left the lasting impression that it was the British who did away with the practice in India. However, Sati seems to have been an uncommon practice even in Vedic times and, despite having been either banned or made as difficult to accomplish as possible at numerous times and in many places, it continued to survive till well after the British Empire had died in India. Before the British Raj had ended in India, the Peshwas of the Maratha Kingdom, the Mughals, the Portuguese, and the Dutch had all attempted to curb the practice, and many Hindu scholars had challenged it.

As far as the British are concerned, it is possible to view both their engagement with Sati, and that of Hindu reformers, through financial relations of the time. By the time the British spoke against Sati, they had already largely cut out middlemen in trade, and their political power was growing. It is likely that it seemed important to some Hindu reformers to abandon the practice of Sati although, even so, the reformer Raja Ram Mohun Roy is reported to have privately suggested that the British not interfere. Nonetheless, once the British did interfere, he supported the measures they took.

From the British point of view, apart from likely having seemed to be been abhorrent, acting against Sati helped them to demonise native men, and to justify their rule (and plunder!) of India with moral arguments. These were arguments which sounded good as long as they weren’t closely scrutinised: the British interest in Indian women’s rights did not stretch far to put it mildly and, in many ways, they wound up making the lives of women considerably more difficult by importing into India their own moral precepts forged in a land whose culture was alien to India’s culture.

For example, it was the British who degraded the public position of the adult woman who was not a wife, and took her from possibly being an independent, well-studied woman to being viewed in terms of a prostitute often considered to be beneath contempt. Their legacy in relation to women’s rights is extremely uneven, to say the least, and emerged through a combination of expedience and ethics, with the former superseding the latter all too often.

With that background, it wasn’t at all surprising that, despite the British claiming to have eradicated Sati, there came to be Sati committed in Deorala in Rajasthan in 1987, a good 40 years after the they left the country. It was impossible to later establish the circumstances in which the act took place with any degree of certainty worth mentioning, but what wasn’t debatable was that a barely-adult woman was burnt alive in plain sight of many people beside her husband’s corpse. The place where she died became a place of worship, and hundreds of thousands of people came to pay their respects in a land which venerates Sati and those who commit it.

Women’s rights groups weren’t impressed, and just as there were prayers at the funeral site, so too were there protests elsewhere.

Less than a month after the commission of the Sati, the Rajasthan State Government promulgated the Rajasthan Sati (Prevention) Ordinance, 1987, which was followed by the enactment of the 1987 Commission of Sati (Prevention) Act by the Parliament of India. The statute came into force in 1988, and, amongst other things, it has since made the glorification of Sati a criminal act. How successfully the Act has realised its aims is, however, anyone’s guess.

Under anti-Sati law, it doesn’t matter whether or not Sati is claimed to be voluntary. Also, although it does not explicitly say so, the law appears to recognize all three kinds of Sati as being problematic: anticipatory Sati, concremation, and Sati after the husband’s funeral. It does this by recognizing that any woman, widow or not, can be a Sati, and that she may be burnt or buried alive either with the corpse of her husband or another relative, or with an article associated with the husband or the relative.

In relation to Sati, there are two kinds of speech which are criminalised by law: speech which is conducive to the commission of a specific act of Sati, and speech which either glorifies Sati in general or which glorifies a specific act of Sati after its commission. Although the statute itself does not explicitly delineate the two kinds of speech by naming them, the following, which are all criminal offences, could all be considered to fall within the first category: inducing a woman to commit Sati, encouraging her ‘to remain fixed in her resolve to commit sati’, or making her believe that the commission of ‘Sati would result in some spiritual benefit to her or her deceased husband or relative or the general well-being of the family’. All of these are considered to be the abetment of Sati.

In contrast to this, in the second category of prohibitions falls speech which glorifies the practice of Sati in more general terms: ‘supporting, justifying or propagating the practice of Sati in any manner’ is a crime, as is observing any ceremony or the taking out a procession in connection with the commission of Sati.

Thus, the statute against Sati is a law which directly targets women being killed although its efficacy is questionable. Although Sati is not common at all anymore, there is absolutely no doubt that those women who have committed Sati are honoured by the society to which they belong. A woman’s life is inextricably intertwined with that of her husband, and committing Sati may be seen as an act of devotion. Also, Sati shraap or the curse of a woman who is hindered from committing Sari is greatly feared.

It isn’t entirely clear to what extent a woman’s enthusiasm to commit Sati may be influenced by the knowledge that her life as a widow would be severely curtailed, and that she would, in many areas of social life, effectively be shunned. What is quite clear though is that it simply isn’t possible to completely eradicate socio-cultural practices (or the nostalgia and admiration which they may evoke) simply by passing a law.

Women who follow their own path are rarely treated kindly especially since the assertion of their own will may involve their claiming property rights. In families and communities which are patrilineal, a woman’s challenging the likely prevalent patriarchal order could result in her being killed. Not all the violence women face is direct, and not all of it is perpetrated by women’s own families. It may take forms such as spreading rumours that a woman is a witch which, in conservative communities, could exponentially increase her vulnerability to being assaulted or killed, or which could simply be used as an excuse to kill her.

To an extent, the danger posed by accusations of witchcraft is an issue which the law recognises and attempts to ameliorate. For example, the 1989 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act disallows persons who are not members of scheduled castes or tribes from causing ‘physical harm or mental agony’ to persons who belong to a scheduled castes or tribes ‘on the allegation of practicing witchcraft or being a witch’. Although this obviously doesn’t cover the entire spectrum of circumstances in which persons — and, as ground realities indicate: women, in particular — can potentially have their lives snatched from them in the most literal sense of the words, it does create the possibility of invoking criminal law should speech be used to brand women who belong to scheduled castes or tribes as witches or to harass them once an allegation is made. The statute itself doesn’t clearly differentiate between the initial allegation and a person being caused mental agony on account of such an allegation but it is possible to argue that even the initial allegation would fall within the scope of the statute as it is entirely plausible that it would cause mental agony in and of itself.

The law, for all the good it may aim to do, cannot act by itself though. It is but one of the factors which influence human behaviour and speech in social contexts, and it forms part of a complex web (along with other factors including caste, class, religion, gender, and superstition) within which people operate.

Simply having a law which says that specific speech or conduct is illegal is unlikely to keep people from engaging in it, especially since, the paucity of resources aside, law enforcement personnel too are drawn from society, and they may tend to be liable to see the law, which is always subject to interpretation, through the prism of their own beliefs.

The criminalisation of speech in and of itself, even when the speech may constitute an act, is not always ideal. Consider the so-called Triple Talaq Bill which was introduced in 2017, and immediately passed in the lower house of Parliament. Even leaving aside drafting anomalies in the Bill, its stated intention was to put an end to the practice of Instant Triple Talaq, as it had been dubbed, through which a Muslim man could divorce his wife effectively at whim simply by saying the word ‘Talaq’ three times.

By the time the Bill was introduced, the Supreme Court had already decided that Instant Triple Talaq would have no legal consequences, so it wasn’t entirely clear why there was a pressing need to seemingly attempt to push the Bill through Parliament especially since there did not appear to have been any consultation worth mentioning with either the public in general or with members of the Muslim community in particular.

Of particular concern was that, although the Bill recognised a woman’s right to maintenance, it also contemplated jailing men for having said Talaq three times in a single sitting. At no point was it made clear how a man would be able to support his wife and, possibly, his children from jail. And, to compound concerns, a provision in the Bill indicated that anyone could file a complaint in this regard even without the consent or desire of the wife in question, thus stripping her of much of her agency.

There is absolutely no argument to be made against Instant Triple Talaq being an outrageous practice which could destroy women’s lives and which consequently deserves be banned, or against maintenance law being a disgrace in desperate need to being rehauled. Nonetheless, it doesn’t automatically follow that the criminalising the utterance of the word ‘Talaq’ three times in a single sitting has ever the ideal way to proceed, if not for any other reason than simply because no study seems to have been undertaken to consider how a jailed man might maintain his family unless he had assets or a substantial income which did not depend on his being free. And considering that no person can live without an adequate amount of money, it would appear that criminalisation would not necessarily best serve the interests of women who were victimised by the practice.

Thus, although banning speech and criminalising it may seem to be the obvious course of action where it devastates the lives of those at whom it is directed, such criminalisation does not necessarily serve anyone’s interests well including those who are victimised. Neither does legislation in and of itself necessarily produce desirable social change. And, in some cases, it is possible that legislation, perhaps coupled with technological advances simply masks one form of abuse and substitutes it with another.

Consider sex ratios. Almost across India, they are skewed indicating that women are killed not only throughout the course of their adult lives but also as girls, and shortly after, if not before, birth. Given that girls are often unwanted in Indian homes particularly since they bring with them the almost-obligatory requirement of providing a dowry and the potential of ‘taking away’ property which would traditionally have remained within a family’s patrilineal line, it is unsurprising hear of girls and women being killed. In recent years, however, the problem of female infanticide has been compounded by female foeticide. The latter has, of course, been facilitated by the development of technology which allows the sex of a baby to be determined before birth.

In order to arrest the practice, the 1994 Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was passed. Amongst other things, it prohibited advertisements relating to the pre-natal determination of sex, and said that contraventions of the relevant provisions of the statute would be punishable with imprisonment for a term which could extend to three years and with a fine of up to ten thousand rupees. The statute itself also clarified that, as far as it was concerned, a prohibited advertisement could include ‘any notice, circular, label wrapper or other document’ or ‘any visible representation made by means of any light, sound, smoke or gas’. In doing so, it made clear that were allegations of advertising to be made, the substance of a communication would be material and not the format or mode of the communication.

Additionally, the statute unequivocally states: ‘No person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives the sex of the foetus by words, signs or in any other manner.’

Despite its best intentions, however, the impact of the law is questionable. Every once in a while, one hears of clinics which develop sometimes elaborate codes to inform prospective parents of what the sex of their children would be even if they do not tell them directly. And, if one were to rely on hard data, considering that sex ratios even at birth remain skewed with many girls simply ‘missing’, there are strong reasons to believe that technology is deployed to ensure that girls are simply not born.

The effect of formally restricting speech to both to control advertisements of pre-natal sex determination, and to control the communication of such determinations to the families of would-be children has been limited, as it was always likely to be. Social change cannot be engineered by statute alone.

That the impact of the law is limited is particularly clear when it comes to statutes which ban practices which have no immediate and visible impact on the existence of women’s lives. Consider the Dowry Prohibition Act, for example. This 1961 law, amongst other things, explicitly prohibits demanding a dowry or advertising an offer of a dowry as consideration for the marriage of one’s child or any other relative. The prohibition is an important one considering that women are routinely killed supposedly because of the lack of an adequate dowry. In fact, a provision dedicated to addressing so-called ‘dowry deaths’ was later inserted into the Penal Code as Section 304B because of the extent of the problem. However, neither the prohibition on giving or taking dowry, nor the special attention paid to dowry-related murders by criminal law, has stopped women from being killed from dowry much less stopped negotiations to decide on what would constitute an ‘acceptable’ dowry.

The law has made dowry agreements void, but that hasn’t kept such agreements from being made. It has only stopped persons from being able to approach courts of law to have the agreements enforced.

And so it is that women are often killed despite the law stipulating restrictions to free speech which are intended, however obliquely, to keep them alive. Although there probably are those who would argue that there shouldn’t be speech restrictions, there are sound reasons for having such restrictions in place.

Most determinations of rights depend on balancing different rights against each other and possibly giving one precedence over the other. In this case, the right to free speech is implicitly weighed against the right to life, and it’s hard to argue that the right to life — specifically, women’s right to remain alive — should be superseded by other people’s right to free speech when that speech can lead to their deaths. Not all restrictions on free speech are necessarily illegitimate.

There are cases where such ‘jokes’ as so-called ‘dowry calculators’ or ‘prenatal sex determination kits’ accessible online are vociferously defended as being ‘just for a spot of fun’. The problem with them, however, is that, even leaving aside legality for the moment, jokes carry with them the burden of the politics of social allegiance and the ethics of the formation of normative rules which signal social acceptability. Their prevalence further normalises practices which have the potential to lead to the deaths of women.

To those who, in any case, do not question the practices being 'joked' about, whether it is the taking of dowry or the killing of female foetuses, the ‘jokes’ may be viewed simply as being conversations about acceptable conduct commonly engaged in. It is only when they are challenged by those against both the practices themselves and conversations relating to them that the ‘just a joke’ defence rears its head along with accusations to the effect that those who challenge the supposed jokes have ‘no sense of humour’, which is rarely the case.

Questioning speech which has the potential to normalise abuse and discrimination is not indicative of the questioner’s not having a sense of humour. The case for challenging the sale of prenatal sex determination kits online, even if they are clearly stated not to work, is relatively clear cut. There is no convincing argument to be made to the effect that prenatal sex determination, and the consequent ‘disappearance’ of girls is not a social problem, and there is a convincing legal argument to be made to the effect that the sale of kits to determine the sex of a foetus before birth (even if it is supposedly ‘just for fun’) could violate the law.

Not all cases are as clear: take the case of sexist jokes or rape jokes especially when they mock who are raped or otherwise discriminated against. There are no clear laws against rape jokes or sexist speech in general although comparable social politics apply to them too. They reinforce paradigms where men are privileged possibly to the extent of committing sexual assault with impunity, and they tend to alienate those who are victimised by such social structures not just by possibly triggering them but also by facilitating the normalisation of defences to abuse which are often nonsensical but which may be endlessly repeated in the form of ‘jokes’.

Although some cases of rape, sexual assault, and discrimination may lead to the non-existence of those who are subjected to them, such cases are in the minority. And that could be why it is harder to make a convincing case against supposed jokes which involve such conduct particularly in patriarchal societies — the conduct itself may be widely prevalent and few people may be inclined to pay attention to criticisms of speech which challenge the conduct in any form even if the conduct is itself criminal.

Sexist jokes and rape jokes are not ordinarily illegal in and of themselves, although they highlight the restricted manner in which the law interacts with speech primarily to lay down limits that define what it considers to be legally permissible. Beyond the law exist social norms which form an additional set of limits defining the social permissibility of particular forms of speech. Although legal statutes and social norms are not oblivious to each other, social norms alone cannot be enforced in courts of law. And it is extremely difficult to have legal statutes be enforced unless they are backed by social norms not least because the law cannot be enforced without having a large number of people, all drawn from society, making complaints, providing evidence, and working together to ensure enforcement when the law is broken.

Due to this, no conversation about speech and what should be permissible should consider either legal or social mandates in isolation. The two operate in tandem, and it is important that they be considered together to develop a coherent understanding of permissible speech. This is not just an issue which affects the elite who are often believed to have very little to do with their time; it is an issue which affects everyone and speaks directly to the very survival of many people.

(re the social function of jokes, also see: Jason P Steed, Essays on Humour and Identity in American Jewish Fiction, 2004)

(This post is by Nandita Saikia and was first published at IN Content Law.)

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