Time for a feminist theory of State       

Over the centuries much has been made of a supposed distinction between sex and gender of females in India. Interestingly such a distinction is seldom, if ever made in case of men. Some recent cases involving women challenging the State systems put in place for the protection and empowerment of ‘Betiyon’ (daughters) and ‘Maataon’ (mothers), reflect clearly how there is a clear link between the established sexual politics of male dominance over females in our society and the power hierarchies it has created in all institutions of the State.

The first step towards creating true gender equality in India would be to claim women’s concrete reality -- what they actually experience within families and outside.

Let’s begin with the prolonged hearings of a recent case where a former Union minister had slapped a criminal case of defamation against a former colleague from the days when he was a well-known editor. He alleged that writing obliquely but scurrilously about an alleged sexual misconduct by him, the female colleague had grievously injured his reputation.

During the hearings and comments surfacing in the media, women saw how whenever the case was being argued, gender was mostly taken as a social construct whereas sex (as in the case of establishing sexual misconduct by a male boss) was largely interpreted in terms of deciding the actual degree of molestation of a female body. (Well, even she says he hadn’t actually raped her but made advances that she had interpreted as sexual harassment). The lower court has ruled in favour of the victim.

In another recent case, another minister made a comment about the Chief Minister of Bengal, Mamata Banerjee, calling herself ‘Bengal ki Beti’. The male minister said that a beti was another’s property (paraya dhan) and she is destined to be seen off eventually. He withdrew the comment later and said that he had been misunderstood. How could a remark from a father of two daughters be seen as carrying misogynistic overtones?

Such one-sided interpretations really complicate the question for women. Shouldn’t all women, from a powerful Chief Minister to a humble #MeToo complainant, be evaluated strictly as per the Constitution as social creatures on par with men?

A question we heard frequently when women, taking heart from the # MeToo movement, began to voice personal experiences of sexual harassment, was why do women rake up the past long after the incident? Fact is, it takes women raised to be deferential to male authority a long time to find courage and a language to articulate painful experiences and go on to challenge a powerful male risking their own reputation. When the push comes to a shove, a legal firewall may rise around the act.

Asked what was his view on the Supreme Court decision to close the sexual harassment case against a former CJI and cite a larger conspiracy, a former Attorney General of India said, “I trust all judges of the case examined the case dispassionately.” However, in response to another question about whether the alleged offender should have presided over the special bench hearing the case, the former AG confessed, “He should not have sat on the Bench. But I am sure he was in shock because it was the first allegation against the judge in 20 years of his career...”.

“With all the historical baggage we carry,” writes the late justice Leila Seth, one of the truly emancipated legal minds India has produced, “it is difficult to understand and appreciate true equality...there are no definite parameters. What might have looked just and fair a century ago, in the manner of the treatment of women, no longer looks just and fair..”

Today in most women’s real-life experience, our laws for freedom of speech protect male stalkers in cyberspace who bully women with unmentionable threats and offers. Our laws on privacy protect the view that within conjugal bedrooms sex is always consensual, and so we refuse to recognize marital rape.

Our laws of child custody similarly help the male partners more since they usually have better means and incomes and social status. As a result, many dysfunctional marriages survive at the cost of the wife’s mental and physical well-being because cruel, uncaring husbands manage to control wives through threats of physical harm and loss of their children.

It is time we realized that our real goal is not to make legal categories that trace and freeze the status quo but to confront older lawmakers and jurists by entering recently created cracks in the law, with the real inequalities in women’s condition in order to change them. Equality at this point requires rethinking the Indian State from the view point and actual experiences of women, not from reflection by mostly male lawmakers and enforcers.