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march 23, 2013

Marriage and Rape

We need a law on marital rape but such acts cannot be separated from the structure of the Indian family.
ne of the positive consequences of the public protests in the aftermath of the 16 December 2012 gang-rape in Delhi has been the intense public focus on rape and sexual violence in India. For long buried by the patriarchal establishment and its state, this issue has now become impossible to ignore anymore and even the most reactionary parts of Indias political establishment are forced to demonstrate that they are going to act on sexual violence. The report of the committee headed by the retired chief justice of India, J S Verma has been a major achievement in putting forth a framework for a progressive law on this issue, a structure that addresses the many different aspects of sexual violence and provides sensible measures which will help plug loopholes and provide justice to victims of sexual violence. Unfortunately, the response of the government has been far from satisfactory. An ordinance was rushed through with ill-dened clauses and half-hearted measures. The manner in which the waters were muddied by introducing regressive ideas into the denition of rape seemed a deliberate attempt to scuttle the proposed law. It steered clear of some of the more important recommendations of the Verma Committee, and at the time of writing dissensions within the union cabinet on matters such as the age for consensual sex, on punishing so-called false complaints and on the subject of marital rape, threaten to unsettle the proposed legislation even before it comes to Parliament. The Justice Verma Committee even addressed the issue of forcibly having sex with ones wife despite her clear refusal. This is an important rst step and the government should not remove it from the nal law (as it seems likely to do). It has been an uphill struggle for the womens movement in India to get marital rape on the agenda. For starters there is little or no legal support to the idea of rape within the institution of marriage. This absence has been compounded by social attitudes that refuse to accept that there could be lack of consent within marriage. The legality of marriage has been founded on the act of consummation, while the inability to have sex provides grounds for its annulment. Most importantly, the husband has the right to demand restitution of conjugal rights or take the support of the State to get sexual access to his wife who may be unwilling to
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participate in sexual relations. Marriage guarantees to the man, through the law, access to his wifes body, which is also the basis for creating legal heirs to property and lineage. Despite all their other differences in personal law, zealously guarded by religious fundamentalists, there is near uniformity in imposing the males right to sexual access to his wife under all of them. Moreover, an overwhelming number of Indian citizens live in, what are called, arranged marriages where the consent of the individuals involved in the marriage is at a discount, often considered entirely irrelevant. What would be the denition of marital rape in such a context where the consent of the woman to marriage is taken for granted? (This is not to deny though that marital rape can take place even where the marriage has not been arranged; it indeed does happen.) Given all this, it is obvious that criminalising marital rape has the potential to disturb the organisation of the contemporary Indian family. This largely explains the resistance from the patriarchal establishment (which encompasses both society and the State) to accept that there is something like marital rape and therefore to accept the proposal to criminalise it. Precisely for this reason, criminalising marital rape is so essential to any politics which foregrounds the democratisation of gender relations. This very centrality of sex and power in the present forms of marriage and family also leads to the opening up of a host of linked issues relating to consent in marriage. However, it is also necessary to realise that even if the proposed legislation covers marital rape and makes it a criminal act, it will be a very small and partial step forward. For one thing, other than in exceptional cases, it would be impossible to prove marital rape given the conditions of our family structure. Sexual coercion is an indistinguishable part of the entire spectrum of unfreedoms and coercions which dene family structure in India and whose main targets are its women and children. Consent, coercion, duties, demands and rights are so inextricably intertwined that it will be near impossible to target one without undermining other aspects, whether it is the lack of choice about marriage and motherhood, or son-preference or even, living assigned gender roles, to list just a few more prominent ones. 7

march 23, 2013

vol xlviII no 12


The womens movement has for decades targeted certain institutions of and behaviour within the family such as dowry and domestic violence. But it is now time to start questioning the very structure of the Indian family the monogamous, patrilineal, patronymic, and patrilocal family which has been normalised by law. This is a daunting task, not just because it will undermine the entire structure of social, economic and political power in contemporary India,

but also because the Indian family provides, despite all its problems, the closest of emotional ties for individuals. Questioning the family involves questioning ones parents, ones siblings and children; it involves questioning unfreedoms which appear alongside intense love and affection. But unless our present family form is critiqued and transformed, can we really imagine a life free from coercion and violence, whether sexual or otherwise?

Story without an End

The continuing indifference to the Bhopal gas victims is unconscionable.

he Supreme Court has called it the worst stigma on the entire nation. It was referring to the fact that 28 years after the Bhopal gas disaster, where deadly methyl isocyanate (MIC) from the Union Carbide plant killed thousands on one night and many more in subsequent years, the survivors continue to be slowly poisoned. Till today, there is no closure to the tragedy that unfolded that night. In addition to the many who continue to suffer from ailments caused by exposure to the toxic gas, many more are now suffering the consequences of ingesting poisons from the contaminated waste that is still lying in the abandoned plant. Court cases and continuous campaigns notwithstanding, neither the state government of Madhya Pradesh nor consecutive governments at the centre have dealt with this tragedy with the urgency that is needed. With the passage of each year, and the marking of another anniversary of the Bhopal tragedy, there is little progress towards justice for the victims or an end to their exposure to toxins. There are several parts of the Bhopal tragedy that remain unresolved. Perhaps the most crucial, in terms of impact on the daily lives of people, is the neglect by the state and central governments in dealing with the poisonous waste in the defunct plant. Last year, as a result of orders from the Supreme Court that action must be taken, it appeared as if a solution was in sight. A German company, Deutsche Gesellschaft fr Internationale Zusammenarbeit (GIZ) agreed to lift 350 metric tonnes of waste from the Bhopal plant and incinerate it. But the deal fell through, partly due to opposition from within Germany where the consequences of incinerating such waste are well known. As a result, even as the Bhopal victims marked the 28th anniversary in December last year, the toxic pile remained where it was with no solution in sight. An illustration of the indifference of the state and the central governments to the toxic crisis in Bhopal is the lackadaisical manner in which the testing of groundwater has been done. The survivors of the Bhopal gas tragedy have been pointing out for years that the poisons from the waste in the plant have been leaching into the groundwater. In 2009, the Centre for Science and Environment conducted a survey conrming this. Yet, both the central and the state pollution boards refused to accept these ndings claiming that the clay layer running under the plant prevented the poisons from leaching into the underground

water aquifers. Finally, in September last year, the Indian Institute of Toxicology Research conrmed that the groundwater was contaminated with high levels of nitrates, lead and nickel and that this had spread over 18 colonies in the area. Why did it take so long to conrm something as basic as this? Surely it did not require some special or high level of expertise to conduct the basic soil and water tests. It is unconscionable that people who survived the lethal MIC have been forced to live next to a toxic pile and survive on contaminated water. Earlier this month, the issue came up again in the Supreme Court wherein it ordered that a trial incineration of some of the toxic waste be done at the Pithampur facility in Madhya Pradesh. The state government had resisted using this plant for dealing with the waste arguing that the Central Pollution Control Board (CPCB) had not certied the plants ability to handle the waste. It is well known that even the most efcient plant cannot prevent some amount of toxic organochlorines from being released into the atmosphere when this type of waste is incinerated. This partly explains why the German company pulled out. And the Pithampur facility would probably not qualify as the most efcient waste treatment plant in the world by a long measure. Yet, what stopped the Madhya Pradesh government from conducting a trial run, as suggested by the Court, earlier? The apex court has concluded that the tussle over where the waste should be disposed of has been reduced into a matter of political battle because of two different political parties at the centre and in Madhya Pradesh. And it is probably right in concluding this. If an illustration was needed of how politics overrides basic humanity, this surely must be one. At stake is the health of thousands of people who have suffered for almost three decades. After the 4th March order by the Supreme Court, there is now some hope that 10 tonnes of similar waste from the Hindustan Insecticides Limited (HIL) plant in Kochi will be sent to Pithampur for a trial run before the matter comes up again for hearing in the Supreme Court on 6 May. But even if this happens, it is only the rst step. Given the way this pile of poisons has been tossed around, there are bound to be other hurdles before it is nally cleared. Tragically, the Bhopal gas story remains a saga without an end because the people who could have done something have simply stopped caring.
march 23, 2013 vol xlviII no 12
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