In markers do not always operate in mutually exclusive

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Last updated: October 19, 2019

  In an attempt to assemble the strayparts of our positionality in the context of gender, class or race, we areoften confronted with external resistances as well as dilemmas from within. Ourshared experiences of gender, race and other identity markers do not always operatein mutually exclusive paradigms. And, yet in the mainstream or establishedliberal feminist rhetoric, we are seldom able to fathom their’intersectionality’.

This relegates some very nuanced incidents of violenceagainst women to neglected and “aberrant” compartments. Such perceptions encagea whole gamut of perils which this essay analyses in depth. In the matters of redressingviolence against women, law often seeks out disparate and codified categorieswhich in turn fails to holistically capture the essence of such experience,leading to further marginalization.

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This predilection for separating thecategories not only reduces the gravity of the issue but also replicates theexperiences of victimhood for many. The inherent structure of any legalunderstanding, as may be perceived from the long drawn lists of ‘codes ofcrime’, the parallel trials et al, endeavours to differentiate one causality from the other. In the longrun, this not only undermines the problem at hand but also adds fuel to theessentialising tendencies of identity norms. Kimberle Crenshaw in her work, ‘Mapping the Margins: Intersectionality,identity Politics and Violence against Women of Colour’, remarks, ‘In the context of violence againstwomen, this elision of difference in identity politics is problematicfundamentally because the violence that many women experience is often shapedby other dimensions of their identities, such as race and class. Moreover,ignoring difference within groups contributes to tension among groups, anotherproblem of identity politics that bears on efforts to politicize violenceagainst women.’1 This is especially important in thecontext of the avenues of interventions which are persistently driven from the”developed” quarters of the world towards the “real victim”. While its truethat in a world of blurring binaries, solidarities are fostered irrespective ofone’s geographical coordinates or socio-economic positions. However, fosteringan ideal of “sisterhood” hinges on being naïve about the alternative negotiationswith the statutory relations of power that some women are participant to.

Onecannot extricate one’s cultural history from the overall canvas of one’s livedexperiences. Hence, adhering to one model of “victimhood” and aligning it withprototypical theories of emancipation, dilute the intersectional concerns ofthe “violence against women” discourses and becomes susceptible to imperialistbiases. The connotations of race and caste need to be assessed against theirpostcoloniality in order to truly understand their bearings on gendernarratives. Unfortunately, the larger corpus of liberal feminist legal theorytries to salvage the “victim” rather than engage with her story. This is a covertmode of essentialism that ends up perpetuating the very hegemony that itintended to resist.   Thepredominant bandwagon of liberal feminists relies on the legislative order for “hegemonicrecuperation”. In a context where the essentialising traits of law proves to beinimical to the polyphonic experiences of women, how far can we repose ourfaith on the structures of power? The crux of this essay is to explore whetherthe prevalent “boundaries of law” endorse the phenomenon of gender essentialismand the ways in which it impacts the discourses revolving around the incidentsof violence against women, standing at the interstices of gender, class, raceand even caste.   The liberallegal feminist theories are scattered with the implicit affinities towardsabsolving the traits of essentialism in any given narrative.

  In her essay, ‘Landscape of the Ordinary:Violence Against Women’, Andrea Dworkin claims,  “Tounderstand the enormity of the crimes against women, one must first accept thatwomen are human beings and all human beings have an intrinsic value that neednot be earned. No special pleading is required to say that an assault against awoman is anti-human, that it distresses the flesh and wreaks havoc on the mind.”2 Thereseems to be a reluctance to look beyond the established polarities of thepowerful and the powerless. As Ratna Kapur observes,  “The ideaof multiple or fractured subjectivities threatens to deprive women of afoundation from which to make claims for rights and for broader global recognition.

If women’s lives are represented as fragmented, they may lose power andundermine certain “truth claims” about women’s lives.”3 Thenotion of relying on the “violence against women” trope for a totalisingexpression of women’s subjectivity is inherently flawed. Albeit the sharedexperiences of trauma and the unifying need for reparation, the additionaloppression that ideas of race and class unleashes upon women of certainspecific positions, enhances the magnitude of the problem greatly.  Legaltheories, both in terms of the legislations of different countries as welllegal frameworks adopted and instituted by international organization tend touphold the singular purview proffered by the “violence against women”narratives. Affirmative actions in terms of addressing the cases of genderdiscrimination also emanates from the denomination of gender-based violence.

Violenceagainst women is posited as the only perceptible manifestation of genderinequalities. In order to be recognized by the international law, issuesrelating to gender, almost customarily needs to appropriated in terms of thevictim-subject. But, in almost all contexts, the concerns are multifaceted and ageneralised definition effaces the germ of the problem.  To takecognizance of the gender based struggles, even the United Nations had to relyon the horrifying and graphic tales of torture, violence and discrimination.4The resultant approach then is riveted upon the need to resolve and cure theproblem. The relevance of women’s rights is then imagine entirely andexclusively as the nemesis of violence against women. Little attention is thenpaid to the diagnosis of the problem. While violence against women provides anidentifiable locale of malice for legal remedies to develop around, there areparallel notions of race, ethnicity, class, caste and even sexual orientationswhich are strategically evaded.

 In fact,on a large number of occasions, where attention is levied upon the concepts of raceand ethnicity, the episodes get invariably broadened to reinforce the racialstereotypes and a prejudiced representation of a culture. This augments the”First World” and “Third World” divide with the theorists of the formercategory attempting to apply protectionist responses to problems incumbent on thelatter. This phenomenon of cultural essentialism then wreaks further havoc withlocalised forms of control, be it in the veneer of state sanctioned laws orrestrictions imposed by the respective familial units.  Thecoherent set of attributes which the essentialism discourse endorses, dilutesthe simultaneous impact of race, colour, ethnicity, caste or even sexualitieson the construction of the victim. Essentialism exerts a predominant emphasison the physiological characteristics of womanhood and the ensuing sexualvulnerabilities.

This delineates the forms of violence in discreet categoriesand renders all other facets of a woman’s socio-cultural situation to theperiphery. Such praxis recurs in the works of ‘dominance feminists’ likeCatherine MacKinnon for whom the commonality of experiences of sexualexploitation occupies the mainstay of the feminist agenda. 5  Thisapproach in turn promulgates generalised and often over-simplified legalresponses to the acts of violence against women, completely oblivious to theplausible influence that the factors of race, ethnicity, caste or colour mayhave on the given circumstances. This also limits the access to justice forseveral women who may be encumbered by concerns other than that of theirsexualities and yet are accorded liminal positions in the eyes of law. AsCrenshaw enunciates in her work, often legal provisions abets the subjugationof women in manners unforeseen by the advocates of such provisions.

6She uses the example of the Immigration Act of 1990 in the United States andhow certain precepts of this act obliged a huge number of women to endure abusewithin the space of their own homes, out of the fear of deportation. Ageneralised overview of the “violence against women” denies the need for whatMari Matsuda calls “coalition”.7 Indeed, alack of “coalition” between the different categories of identifies withinapproaches to feminism, privileges one particular category of women andrelegates a good number of others to the category of “minorities”.

Anotherdangerous trend which is sustained by essentialism is a misinformed view of theculture through the lens of gender. In the works of various Western feminists,we find the certain cultural constructs about the Third World reified andconsequently, racist assumptions get buttressed. What Kapur calls “Death byCulture”8becomes the trope of absolving diverse forms of gender violence from the scopeof discussions of these writers. My contention here is that both an absence ofcultural considerations as well as the stereotypical view of the same inanatomizing violence against women, discredits the unique positionality ofnumerous women and in the long term fails to usher any emancipatory impact inthe lives of these women. Law continues to be a distant abstraction for a goodmany, while the brutalities of rape and battery remain prevalent in theirlives. Crenshaw rightfully asserts,      “A casein point: women of colour occupy positions both physically and culturally      marginalised within dominant society andso information must be targeted directly to them in   order to reach them.”9 Whilespeaking of violence against women, we cannot simply isolate “rape and battery”from the whole plethora of discrimination and abuses that a woman is subjectedto. Denying the intersectional overview to violence against women byessentialising it according to one criteria or the other, would imply grapplingwith only a partial dimension of the whole issue.

Patricia Williams in herwork, ‘On Being the Object of Property’, speaks of the Madrigal V Quilligancase where 10 Hispanic women were sterilized at the University of SouthCalifornia, without being lucidly informed or without seeking their consent 10If the restriction on one’s abortive rights is an accepted form of oppressioninflicted upon the bodies of women, usurping the right of child-bearing is anequal breach of bodily autonomy for a woman. Now, as statistics reveal theperception of either will vary according to one’s socio-cultural locale. Weneed to look into the shared commonality of the two but at the same time, or infact more importantly, we consistently aware of the vast difference between thetwo.

It is only then that we would be able to advocate for the most effectiveand pertinent form of reparation for both paradigms of violence against women.  Theperils of politicizing race and culture in the analysis of gender and usinggender as a subsuming category of assessment are many. The totalising potentialof either mars the relevance of an intersectional approach and reinforces theprejudices which essentialism fodders. But, what is also does is to tighten the”boundaries of law” and constricts its point of view largely. We have thus far spokenof intersectionality largely in terms of race and culture. They are by no meansan exhaustive list and the nuanced categories of identities keep expanding aswe navigate through different topographies. I would now attempt to demonstratethe intersectional backdrop of a certain case of violence against women thattook place in India and how it evoked a rather radical response to the”boundaries of law”.

  Theprotagonist of the current case is Phoolan Devi, a reformed gangster from Indiawho, after serving a prolonged term of imprisonment, forayed into politics andremained a member of the Parliament until her assassination in 2001. An outlawby virtue of the series of crimes committed by her during the stint as abandit, she later becomes participant to the very legislative body of thestate. But this dynamism is merely one angle to the whole narrative aboutPhoolan Devi. What makes her a unique exemplar for the purpose of our study ishow she transcended the scaffolds of her gender, class and caste to assume thegavel in an unprecedented manner. She later abandoned the life of banditry tojoin the public service and as may be deduced from the sobriquet, “Devi”meaning Goddess, was able to earn the reverence of the larger proportion of thepopulace. Hailingfrom the rural parts of Madhya Pradesh in India and brought up amidst acutepoverty, Phoolan always had a feisty temperament which demarcated her as adeviant in the milieu of rigorous gender norms of that time. She married off atthe tender age of eleven and suffered physical abuse and humiliation at the handsof her husband and in-laws, before finally managing to escape from his hold.Here again, we need to engage with the prevalent social fabric of her times.

Caste has been one of the most important determinant of the social hierarchy inIndia since time memorial. The civil and political rights of the member castemay have been inscribed on paper but a holistic social assimilation has neverreally occurred and the lower tier of the caste have always had to bear amagnified incidence of myriad forms of exploitation. This situated Phoolan at ajuncture of double marginalization, by virtue of both her gender and her caste.Not only was abandoning or abandonment by a husband a social taboo for women inIndia but it was almost unthinkable for women belonging to the lower caste.Consequently, Phoolan was ostracised by her community and eventually abductedby a gang of dacoits belonging to the adjoining regions. The smouldering embersof her traumatic past had fuelled her desire for revenge and amidst thedacoits, Phoolan, who had been denied the straightforward recourse to legalreparation, found her channel for avenging herself. She became one of them andbegan her career as the notorious ‘bandit queen’.   If arecurring pattern is to be charted out of her record, the motive behind heronslaughts become palpable.

All her victims were upper caste men, a largenumber of whom were her perpetrators in the past. That the desire for revengewas what spurred her actions was no secret. Many perceive the culmination ofher banditry as the Behmai massacre in 1981.

She invaded this village in UttarPradesh in India with her gang and deputed the murder of over 20 men belongingto the upper caste. Some years ago a warring gang of bandits had incarcerated,tortured and raped her over a sustained period of time . Heinous as it may bethis deed is unequivocally instigated by her inherent demand for justice.

It isthe trajectory of realising that demand where she loses our sympathy. No legal orderordinarily condones bloodshed irrespective of the ends it serves or therationale behind it. Phoolan Devi may have championed the tribe of lower castewomen who’ve been violently subjugated and exploited by her victims for yearsbut her criminal culpabilities as a mass murderer remained unaltered.

Her actionswere categorised unlawful unequivocally. But, we need to bear it mind that shewas an anomalous obtrusion in the premise of law and civilised order. Outlawedby the society, deprived of the normative resorts to justice, Phoolan could dolittle but transgress those boundaries of law which anyway were out of boundsfor her. To her, her actions were the means to reclaim her agency while sheimaged herself as the crusader of the feeble and the downtrodden. AnuradhaRamanujan in her work, ‘The subaltern, the text and the critic: Reading PhoolanDevi’ tells us,  “…the testimonial contain frequentreferences to the dacoit as benefactor and saviour of the downtrodden. As a newlyrecruited dacoit in Vikram Mallah’s gang, Phoolan fashions herself in the imageof the avenging Hindu goddess Durga, goaded to righteous violence against richtyrants by hunger and injustice.” 11 In fact,she was canonised by many. Phoolan Devi subverts the victim agent dichotomy ina rather drastic way.

She challenges the entire subject of “rape” by refutingthe notion that a woman’s sexuality is the fundamental marker of her selfhood.However, the fact that she chose violence to demystify another act of violence traversesa rather controversial terrain. But the transformative prowess of Phoolan Devi’sdeeds cannot be denied. For someone whose existence in the social statutes hadbeen obliterated, could she have clamoured for equal rights in a milieu whichdeemed her sovereign self as “defiled” and “desecrated” because of theinterventions by others? Her unique subjectivity posits challenge for alldesigns of alliance that liberal ideals tend to glorify.  Aparallel narrative is that of Bhanwari Devi of Rajasthan in India, a lowercaste woman who was gang raped by the upper caste patriarchs of the village forattempting to stall a child marriage. She treaded the path of law and evenafter two decades of a futile wait, she awaits justice.

What benefit did herconformity to the normative standards reap? She still lives in the same villageas the one where her violators roam scot free.  As longas law continues to conflate violence against women with isolated categories ofidentity by denying the sites of difference, the wait of the likes of Bhanwarishall prevail, save for the knee-jerks which one Phoolan or the other willusher from time to time. A uni-dimensional legality essentialises women’sexperiences thus resisting the repression of their multifaceted marginalisation.Liberal feminist legal theory is entrenched in gender and cultural essentialismwhich needs to be ruptured intersectionally by adopting “multiple consciousnessas jurisprudential method.

“12 1 Kimberle Crenshaw, Mappingthe Margins: Intersectionality, Identity Politics, and Violence against Womenof Color (Stanford LawReview, Volume 43, 1991) 2Andrea Dworkin, Landscape of the Ordinary: Violence AgainstWomen (Washington Square Press 2003)3 Ratna Kapur, The Tragedy of Victimization Rhetoric: Resurrectingthe “Native” Subject inInternational/Post-ColonialFeminist Legal Politics (Harvard Human Rights Law Journal, Volume 15, 2002)4 Vienna WorldConvention, 19935CatherineMacKinnon, Feminism Unmodified:Discourses on Life and Law (Harvard University Press 1987)6 Crenshaw (n 1)7Mari Matsuda, Beside My Sister,Facing the Enemy: Legal Theory out of Coalition (Stanford Law Review, Volume43, 1991)8 Kapur,( n 3)9 Crenshaw (n 1)10 Madrigal v. Quilligan, 639 F.2d789 (9th Cir. 1981) 11 Anuradha Ramanujan, The Subaltern, the Text and the Critic:Reading Phoolan Devi (Journal of Postcolonial writing, 2002)12 Matsuda(n 7)

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