The RSS chief Mohan Bhagwat’s statement that rapes only happen in ‘India’, not ‘Bharat’ has caused justified outrage. As denial — because for Bhagwat rape defines the boundaries of Bharat and India — it is out there with ‘A terrorist can’t be a Hindu’ (or for that matter a Muslim).
As absurd as they may be, such tautological beliefs can nevertheless hold clues to value systems, and indirectly to ‘communities of belief’, a term I use here to describe not religious communities but groupings of individuals sharing, perhaps with contextual variations, more or less similar social values. When such communities of belief hold the power, as here, to regulate public spaces, police behavior, and enforce laws, clues to their beliefs could prove valuable for designing laws, in this instance against male sexual assault on women, and mechanisms to enforce them.
Mohan Bhagwat’s statement reflects his patriarchal beliefs. That much is obvious. So too the patriarchal beliefs that inform police and criminal justice attitudes especially in North India, to cases of sexual assault and everyday sexualized male violence in public spaces.
But beyond these evident resonances, ‘patriarchal beliefs’ can serve as a lazy rhetorical gloss over a widely-shared practical attitude with serious implications for the criminal justice system’s ability to deal with cases of men accused of sexual assault on women. This is the deep-seated resistance to criminalizing acts of male sexual assault, let alone acts of everyday sexualized male violence.
When public figures and responsible law enforcers advise women to dress modestly, stay home after dark, or be accompanied by a male ‘family member’, they not merely rationalize sexualized male aggression against women in public places. They equate forms of female public visibility beyond patriarchal male control with complicity, if not seduction — whence the pressure on women to marry the rapist — and decriminalize male aggression. By leaving invisibility as the only way for a woman to say a firm, unambiguous ‘no’ to unwelcome public male attention, they also raise the bar for criminalizing sexualized male aggression until it disappears!
Thus a presumptive affirmation of male impunity is the real reason why in Mohan Bhagwat’s Bharat, there can be no assault on women in public places. (No doubt Bhagwat’s Bharat has codes to conjure away sexual assault in private spaces as well. But as contextual and gendered as the distinction between public and private is, I do not want to go into issues raised by ‘private’ violence here.)
Laws against sexual assault premised on a woman’s right to and over her own body will certainly be an improvement on the patriarchal premises of our present laws on rape. But to be effective legislation and enforcement have to go beyond abstract assertions to situate their realization in a closer understanding of lived everyday interpretations and practices. Otherwise even the best laws can, at the hands of the average police official and criminal justice functionary, become recipes for impunity and lawlessness. In fact, tougher the law on sexual assault other things remaining the same, the tougher it could arguably get to bring the guilty to book, particularly if they happen to be rich or powerful, within our criminal justice system.
There is already widespread recognition that tougher laws against sexual assault have to be backed up by other measures for speedy justice, from registering cases without delay, through effective investigation and prosecution, to special, fast-track courts.
But speedy justice, in the absence of certain justice, is no guarantee against the perversion of law. Certain justice additionally demands reversing the culture of decriminalization and impunity, and mechanisms to overcome the roadblocks it puts in the way.
A shared resistance to criminalizing acts of male sexual assault helps partly explain the humiliation that rape trial procedures routinely heap on women. This can sometimes extend to trial court judges: in letting off men accused of rape, judges have been known also to pronounce on how a woman subject to ‘legitimate’ rape would have behaved. Between investigators who handle evidence casually, prosecutors who fail to use it effectively, and judges desirous sometimes of making their own evidence, it is no surprise that conviction rates against rape offenders are so low.
As necessary as they are, certain justice needs more than gender sensitization programmes. It also requires enhanced police and prosecutorial accountability, perhaps in the form of a dedicated investigative and prosecutorial service for cases involving sexual assault against women. Such a service could even be the first step towards the long-cherished goal of creating an independent criminal prosecution authority. Sexual assault laws should also lay down stringent standards of trial behavior monitored by an independent body reporting perhaps to the High Court, and armed with powers to recommend declaring a ‘mistrial’ in the event these standards of trial behavior are breached. To be genuinely effective this monitoring body should also have powers to pin accountability and fix financial and professional sanctions for ‘mistrials’.
In short, special fast-track courts for sexual assault cases may help promote speedy justice. But certain justice, particularly after the present state of mobilization wanes, will require additional norms, instruments, and institutions. The latter deserve closer attention in the current debates than they have so far received. In helping to draw attention to them, Mohan Bhagwat may have rendered us all an unwitting service.
G. Balachandran is Professor of International History and Politics, Graduate Institute, Geneva