Guest post by PRABHA KOTISWARAN
Taking off from the debate here on the Harvard Task Force, I’d like to flag some disagreements among feminists on law reforms. There are many strains to this debate – I will only engage with a few.
No feminist, whether of Indian origin or not, whether primarily located in India or not, is insecure about feminists/lawyers around the world working on rape in India. Circuits of feminist scholarship and activism become so inter-disciplinary and transnational that maintaining and policing turf (if at all that were possible) is an utterly useless endeavour.
What really perplexed me however was the range of comments on Nivedita’s post, some framed more elegantly than others, encouraging feminists to overcome our petty differences to work together in a participatory, research building and ultimately egalitarian endeavour to reduce the sexual abuse that women in India face. I love the worthy goal—nothing to disagree about there. But let us clear, the “inequality of ignorance”, that Dipesh Chakbrabarty pointed to many years ago between first word scholars and third world scholars still persists. As he reminded us, third world scholars “cannot even afford an equality or symmetry of ignorance at this level without taking the risk of appearing ‘old-fashioned’ or ‘outdated’ ”. Some Western feminists on the other hand, barely care to become familiar with the context in which they are trying to intervene. So it is not surprising that a couple of years ago, Catharine MacKinnon after urging the Indian government to pass a law criminalizing customers of sex workers, was stumped when asked an innocuous question on what she thought about the ban on bar dancing. And lest we forget, this inequality of ignorance matters! Western feminists have access to Indian institutions in a way that Indian feminists do not. Indicative of this is the profuse thanks that the Justice Verma Committee offered to Diane Rosenfeld of Harvard Law School in their mammoth report.
Underlying this inequality of ignorance, which could be remedied theoretically speaking (because we can be quite sure that members of the Harvard Task Force are not reading this blog right now), is a far more fundamental disagreement on the substance of law reform amongst feminists, both in the West and in India surrounding sexual abuse. To make sense of the impetus of the Harvard Task Force, we need to ‘provincialize’ Western feminism and its discontents, which are being constantly negotiated within the US but also increasingly internationally in playing fields such as India. The feminists heading the Harvard Task Force believe that women’s inequality arises from their sexual subordination which they attribute to a rather long litany of sexual abuse, which can in turn be maintained only through a series of conflations between rape, prostitution, trafficking, domestic violence, pornography, sex slavery and so on. The suggestion for reparations emerges in this context of victim-speak and sexual harm. So while I have no issue considering victim reparations as an issue for criminal law theory, I think it is incredibly naïve for Indian men to suggest that feminists just simply chat with each other while divorcing reform ideas from the larger ideological package that they are part of. Law is politics, after all as many of us learnt in law school. Every word in the rape law statute carries within it a certain configuration of power, so every minor change, reframing, bears distinct possibilities for reform on the ground.
Some of us have plotted the meteoric rise of particular versions of American legal feminism as they have been propelled out of their provincial contexts into international law and policy making. We have called this form of feminism and its accompanying activism “governance feminism” http://www.law.harvard.edu/students/orgs/jlg/vol292/halley.pdf).
Governance feminists (who will be heading the Harvard Task Force) have an overwhelming investment in the power of the criminal law in their bid to eliminate sexual abuse. Suggesting law reform to the Indian government, which enhances the power of the post-colonial state through the criminal law apparatus is deeply problematic as the recent execution of Afzal guru shows. Not only does it refuse to take into consideration, Indian feminists’ historically critical disposition towards state power and the Indian police, it is a perfect recipe for how law can do more harm than good (as the drafting of the ordinance has already reminded us).
So rather than hum the peaceful song of collaboration today, I am going to keep my eyes wide open for such unintended consequences of feminist action.
Prabha Kotiswaran is Senior Lecturer in Criminal Law at the Dickson Poon School of Law, King’s College London
Other posts on this issue at Kafila
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Yes! I love this. Thank you for this nuanced critique.
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Prabha Kotiswaran’s nuanced argument has roots in what third world feminists have known for a really long time: THAT THE LAW ACTS AS THE PHALLUS OF THE STATE, WHICH IS FUNDAMENTALLY PATRIARCHAL. To seek legal remedy to sexual violence is akin to asking the wolf to guard the sheep.
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That’s an amusing concept, Santhosh. So, according to you, there should be no law against rape because the majority of legislators are men. I wonder how well that would work out in practice. Perhaps you should write letters to women’s organizations asking them to work toward voiding every law against rape and see what kind of response you get. It is fools like you who mess up the legal system and society.
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Dear Anpadh,
I am usually very sympathetic to people who have been excluded by the formal education system. But the fact that you call yourself “Anpadh” even when you are educated, at least formally, shows that the system has failed us in so many ways. Let’s keep that discussion for another day.
I will not try to “educate” you about my argument because–let’s be real–who can remedy willful ignorance? But if you are genuinely interested in trying to understand this perspective, I recommend that you read Upendra Baxi’s “The State’s Emissary: The Place of Law in Subaltern Studies” found in Subaltern Studies, Volume 7. I would also recommend Wendy Brown’s Finding The Man In the State. Then there are postcolonial feminists–from Spivak to Mrinalini Sinha–who have exposed the double work of law as an arbitrator while it, in fact, works to consolidate gender oppression. No, I will not give you a 30-second elevator version of what their arguments are; I am presuming that if you are genuinely interested, then you will engage these authors.
Best
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And to be clear, I am not saying that the legal system should not be an object of feminist activism. On the contrary, I am always impressed by the works of feminist legal scholars who show me how much I don’t know.
But what I tried to challenge in my earlier argument (and what Prabha Kotiswaran is trying to do as well) is the uncritical deferment to legal solutions for problems as complex as sexual violence. Law works as a temporary solution at best. Not understanding this will only endanger the feminist cause in the long run.
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