After a brave but futile fight the New Delhi rape victim has died. The loss of life and the inhuman circumstances of that tragedy which happened in the national capital make us all feel ashamed. We all share the grief and pain of her near and dear ones at this hour of mourning.

However a very ugly phenomenon is increasingly being witnessed along with this national shame that diminishes us all. Fundamentalists of every persuasion are using this tragedy to further their agenda. Marxists blame it on the globalization and the satellite channels which came with globalization. Islamists are asking for media control, dress code and take this as an opportunity to flaunt the supremacy of Islamic laws. Then there are obscurantist elements who hint at those golden days when child marriage was in vogue, when rape was unknown in India. In all these cries either with hidden agendas or with emotions, there is a disturbing tone that the present legal system in India is deficient and we need barbaric punishments or we need more cultural controls.

Let me start with our very own ‘Indic’ orthodoxy.

Our Dharma Shastras, we are told, do not have a punishment for rape which means it did not exist at those times. Perhaps it came with Muslim invasions. Even a century ago when child marriage was practiced the girls were married off before they obtained puberty and kept under the ‘safe’ watchful eyes of the household. However there are severe punishments for adultery. The problem with this argument is that Manu Smrithi did know about forceful abduction and deceitful violation of women – unmarried women.

“The forcible abduction of a maiden from her home, while she cries out and weeps, after (her kinsmen) have been slain or wounded and (their houses) broken open, is called the Rakshasa rite” (MS 3:33) “When (a man) by stealth seduces a girl who is sleeping, intoxicated, or disordered in intellect, that is the eighth, the most base and sinful rite of the Pisakas.” (MS 3:36)

These violations were considered only as inferior forms of marriages but marriages nevertheless. They were not punishable provided they do not violate the stratification of Varna order. Adultery of course is punishable because it is in a way property violation – a cherished property. Child marriage is the act by which, religionists world over want to control the reproductive system of the believers. This is as true of Varanasi of pre-Sharda Act days, as it is true of Vatican today. In the Papal State where by virtue of the Lateran Treaty that the Holy See saw fit to sign with the Fascist regime the minimum age of consent for legitimate marriage of females us set at 14.

In fact you cannot expect anything better in a pre-modern patriarchal society. So if suggesting of going back to Smrithi-based code of conduct is despicable, it is even more despicable to use the present human tragedy as the occasion to suggest that. Let us not forget that the Sharda Act which paved the way for women empowerment in India and dealt the death blow to patriarchal orthodoxy was brought by Har Bilas Sharda – a Hindu nationalist. Many great leaders including Mahatma Gandhi and Baba Saheb Ambedkar toiled tirelessly to bring about that act despite severe opposition from the highest power centers of orthodoxy.

Islamic fundamentalists have seen a golden opportunity in the tragedy and are using it in two ways. On the one hand they are asking for media control, dress code and projecting Islamic law as the panacea for the gender crimes and on the other hand they are speaking about the insensitivity of Indian society about the Muslim women raped in Gujarat in 2002 and allegedly by Indian army in Kashmir. It is more a propaganda opportunity than a human tragedy for the fundamentalists.

In reality while Islamic system looks superficially harsh on rapists in reality they are heavily biased against the rape victims. Here are two instances of how Islamic system of justice operates, from that heaven of Islam Saudi Arabia which is projected by Islamic propagandists as the safest place on earth for women:

In 2006 a young woman referred to as the Girl from Qatif was raped by a group of men. … But the judge sentenced her and her male companion to lashing for defying the law against men and women being alone together. When her lawyer appealed the judge doubled the sentence against them and rescinded her lawyer’s license….A similar case involved a woman in Jeddah who was impregnated during a gang rape. She was convicted of zina although the sentence was postponed until she gave birth. Then she was to receive 100 lashes and spend a year in prison…. As rapists typically argue that their victims are engaging in consensual sex gang rape is the preferred scenario for the men involved as conviction for zina’ requires statements by eye witnesses.

(Sherifa Zuhur, Saudi Arabia, ABC-CLIO, 2011, p.229)

Under such a system Allah (if he exists) alone knows (if he is capable of knowing) how many gang rapists get away under the zina blanket and how many women are frightened away not even to approach the court room for fear of reverse conviction.

Now let us take the other propaganda of Islamists that India looked the other way when Indian army was raping Muslim women in Kashmir. This has been a campaign that has been going on from 1990 itself. At that time mass rape of women at Kunan Poshpora was trumpeted by terrorists and Islamic fundamentalists against Indian army. This was investigated by a three member committee formed by Press Council of India – an independent body. The committee was headed by veteran journalist B. G. Verghese, definitely not a ‘jingoist’ liberals love to hate. Popularly known as Verghese Committee Report stated this about the Kunan Poshpora mass rape incidents:

The Kunan rape story, on close examination, turns out to be a massive hoax orchestrated by militant groups and their sympathizers and mentors in Kashmir and abroad as part of a sustained and cleverly-contrived strategy of pathological warfare and as an entry point for re-inscribing Kashmir on the international agenda as a human rights issue.

This is not to say that there have been no human rights violations or gender based abuses. But here at least we have a democratic system to which the military has to answer unlike in the neighboring Islamic country where genocidal military leaders can enjoy protection as in the case of 1971 Bangladesh genocide. Gujarat riots of 2002 are definitely inhuman horrible blot on Indian society even if it was a retaliation for the burning alive of 58 Hindu devotees mostly women and children. Here too we find the democratic legal system in India delivering justice to the riot victims though the same cannot be said about the displaced Reangs of Mizoram, Jamatiyas of Tripura or Pandits of Kashmir – all children of lesser non-Abrahamic Gods. However in Islamic neighbors like Pakistan and Bangladesh Hindu women are constantly molested and the legal system itself is biased against the non-believers. The plight of women victims of sexual abuse in Islamic countries actually necessitates the need for a transnational secular law, administered by UN, to handle gender-based abuses.

And our progressives ever on the prowl at once come and blame it all on the new globalized digital environment with satellite channels beaming into the living room of every house the pelvic gyrations and the worse. Were women not really safe in those good old days of socialist raj? Well… not exactly. In 1980 the socialist secular India witnessed the most gruesome inhuman gang rape of a woman. Sadly then the Prime Minister was not a lameduck one but almost a dictator and a woman – Indira Gandhi.

Maya Tyagi a 23-year old woman and a pregnant wife of a farmer was going in a car to attend the wedding of her niece. When on the way a policeman misbehaved with Maya her husband gave the molestor a beating. The policeman then went inside the police station and brought out the police and they fired and killed the husband. Then the nightmare began. Maya was dragged out of the car. Her ornaments were taken. She was stripped naked and beaten. Then she was paraded through the market place. Then she was brought to the police station, gang raped by seven police men, made to drink urine. After all these she was arrested stating that she was a ‘mistress’ of a robber whom police killed. The incident created a national uproar then. The Home Minister saw Maya Tyago but advised a fact-finding committee to take Maya to Mrs Indira Gandhi then the Prime Minsiter. The fact-finding committee records:

Realizing that her (Indira Gandhi’s) approval was necessary even to do justice in a case where a woman had been barbarously treated, we asked for an appointment with the Prime Minister and went to her with Maya. The Prime Minister listened to us and then merely remarked in English: ‘Well, there are different points of view.’ She wished to talk to Maya herself. We learnt later that she had asked Maya only two questions: First, how much gold was she carrying with her and did she have a list of the ornaments? And second, under whose advice was she brought to Delhi?

(Economic and Political Weekly, 26 July 1980)

The current globalized environment with its dynamic social networks and digital democracy provides a much more effective environment to voice our protest against gender violations inspite of a Prime Minister who meekly reads out a statement and nods ‘Teek hai’ like a Zombie. Ultimately it is about how much democratic a society can provide real gender justice and inhibit gender based violence and violations in that society. The mission of the civil society is to then achieve in a sustained way, that transformation from political democracy to social democracy.

For the chief architect of India’s constitution, democracy is not just a form of governance. The good doctor said:

The roots of democracy lay not in the form of government, parliamentary or otherwise. A democracy is a model of associated living. The roots of democracy are to be searched in social relationship, in terms of the associated life between the people who form the society.

To Dr.Ambedkar this spirit of democracy as a way of life is the most precious and defining civilizational ethos of India. And he traced its roots to the pre-Buddhist civilization of India when debating leftists in the parliament. Our women and other genders will be respected for their innate values; their human rights will be honored when our way of life in the society becomes truly more democratic. If we in a spur of the moment embrace medieval barbaric laws ultimately we will end up harming the very aspect of life we seek to protect.

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Aravindan Neelakandan

Co-author of acclaimed book "Breaking India", Aravindan Neelakandan has worked for the past decade with an NGO in Tamil Nadu serving marginalized rural communities in sustainable agriculture. He is also a popular science writer in Tamil and is part of the editorial team of highly popular Tamil web portal

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