In Defence of Flavia Agnes and Natasha Badhwar: A Response to Shyamolie Singh

This is written from the standpoint of an empirical social scientist who is also a lawyer. I strongly feel that many of the concerns raised by Shyamolie Singh as a critique of Flavia Agnes’s response to the sentencing of Mahmood Farooqui stem from a mis-conceptualization of the legal epistemology and empirical theory as is applicable to resolving the situation of gender oppression in India. This piece demonstrates that Agnes’s comments stem from an epistemology of feminist legal theory as applicable to India. The lack of systematic categorization of the epistemological considerations within contemporary Indian feminist legal theory and a delineation of their various theoretical and analytical assumptions and premises, has led to voices within the feminist movement claiming the paramountcy and legitimacy of one totalizing voice. In this process, genuine epistemological feminist legal considerations and theoretical formulations as are necessary to address the severe and intense forms of gender-based violence in Indian society are elided through allegations of anti-feminism. The charged and contentious debate between Singh and the viewpoints expressed by Agnes point to the imminent necessity for the conscious development of a discipline of Indian feminist legal theory that systematically enunciates the assumptions, methodological premises, theoretical constructs and empirical occurrences in this branch of the feminist intersection with the law. Such a development is necessary in order to permit the voice of feminist legal scholars to legitimately raise, assert, demonstrate and work towards the relevance of the law to resolving the situation of gender oppression in India. In fact, this piece demonstrates that a careful consideration of Agnes’s comments reveals it be methodologically accurate from the viewpoints of legal and empirical theory. The comments by themselves do not demonstrate any “anti-feminist” viewpoint as has been claimed trenchantly by Singh. In fact, the latter allegations represent certain basic mis-conceptualizations about the epistemology of feminist legal theory and the same will be demonstrated by this piece. Hence, this piece hopes to point to the necessity of the presence of differing voices contributing effectively to the appropriate theoretical and empirical methodology to resolving the situation of gender-oppression in India. This development will also create a more specialized discipline of Indian feminist legal theory that will make its theoretical and empirical premises accessible to scholars and researchers across the world and prevent the mis-conceptualizations on the “image” of India that rise up cataclysmically in the face of the reporting of occurrences of gender-based violence in India to mar the epic struggle that is being currently waged by the Indian feminist movement. Hence, this piece paradigmatically contends that all of the criticisms of Shyamolie Singh can be accommodated within a paradigm of “methodological appropriateness” and refutes the charge that Flavia Agnes’s interview castigates or derides feminist tendencies.

First as an empirical social scientist and lawyer, I see no epistemological difficulty in ranking or grading different categories of crime. The lawyer or the judge is confronted with social inaccuracies through ambiguous terminology that makes the discernment of the truth and “facts of the case” intrinsically more difficult than it would have been with simple and lucid language. For this purpose, the ranking or categorizations of crime by a legal system, a law or criminal code enables the conviction to occur with greater ease. It also enables commoners and members of the public an empirical glimpse into the aspect of the crime that was committed. Clear and simple terminology enables convictions to proceed with greater accuracy. Most importantly, it demonstrates the utility and the efficacy of the rule of the law system over others. It prevents mobocracy or public opinion from constituting or delivering judgment. In this regard, the creation of a “hierarchy” or categorization of crimes of gender-based violence simplifies this task and will enable quicker and easier access to justice for those who suffer from the crimes of gender-based violence. Nobody contests the trauma or intense suffering of the victims of crimes of gender-based violence through this process. Further, from the standpoint of a criminal justice system and legal policy, there does not exist any rational reason that resists the categorization or ranking of crimes of gender-based violence. Quite simply, it will prevent the courts and law enforcers from being forced to put their own interpretation to these terms, which would inevitably occur if they were to be defined by the lawmaker in a manner suggested by Singh. Grading or ranking trauma does not seem so incompatible when it contributes to its imminent redressal through the rule of law. It seems like Singh bases her critique off on general “civil” society and not the courtroom. When a judge is confronted with ambiguous definitions on the concept of rape, it is bound to result in a miscarriage of justice. Categorizing or defining a crime for legal purposes does not in anyway denude the suffering or trauma of the victim. It inherently contributes to redressal of that situation that caused this trauma or suffering. Imagine the confusion that should result in our legal system, overburdened and understaffed as it already is, when the judge is faced with ambiguity and uncertainty on the concept of the crime of rape. In fact, the current definitions within the Indian penal code and the 2013 Amendment reflect a serious deficiency in their ability to redress the intensive crimes of gender-based violence. The few pointers on exactness and specificity that we have within the Indian legal system will be denuded if it is populated with vague and ambiguous terms that leave it to the legal interpreter to determine its exact content.

Second, as an empirical social scientist I can state that I am bound by the methodological rigors of my discipline to operationalize and limit my terms in order to conduct social analyses. Just for instance, suppose I was interested in the effect of marital rape on the psychological happiness of women in Chennai, Tamil Nadu. I would have to, by definition, reduce the term “martial rape” to a precise and parsimonious term capable of measurement and empirical analysis. It will not suit my analysis to contend that constructing such definitions denigrates or derides feminism. In fact, a study which finds a statistically valid relationship between these two phenomena can be used as a legitimate tool of feminist agitation (for a possible change in the legal system or can contribute to the necessity for a law on marital rape in India). Quite simply, reducing a term to its definitional minimum does not denude or deride it of feminist tendencies. Agnes’s comments on the need for different categories of rape will provide an epistemological impetus to researchers studying gender-based violence in India. It will remove the methodological confusions created by the variances in cultures and permit the experiences of suffering of Indian women to be accessible for scholarly analysis the world over, possibly contributing to a more effective redressal. Finally, the concept of sentencing and appropriateness of punishment is something that should be subject to legitimate debate by Parliament, when the imminent necessity of a common code on gender-based violence is brought before it, hopefully by future activism. Agnes’s comments just demonstrate these trails of thought and Singh’s unfailing critique reflects yet another mis-conceptualization about empirical social science epistemology.

Moreover, the entire controversy evoked by the “grading” of rape can be overcome by conceptualizing a universal set (as in mathematics) of the crime of rape. Debate needs to ensue on the appropriateness of punishment for the accused when rape is committed with the active mens rea of some other crime like severe, assault, battery or murder and rape committed sans those acts. Surely, different categorizations of rape will enable the judge and policy maker to deal more accurately with these different acts. It is indeed within the legitimate domain of criminal law to deal with the appropriate amount of punishment for varying degrees of a crime. The law can still categorize different acts of rape as such, without mandating a uniform rule on punishment for all instances of rape. Feminist theory talks about the recognition of difference. Why cannot this analytic be applied to discern the different categories of rape that could occur in society? In fact, application of social scientific methodology could be a useful organizing heuristic to lend exactness and accuracy to the law. Surely, articulation of such a scientific premise cannot draw flak from a movement that has been calling for the critique of andro-centric society on the basis of gender. Systematization of the law on the basis of gender is what is being indirectly implied and this reasserts the fundamental principles of feminism.

Third, on the concept of grading and ranking trauma, it is an empirical fact that the intensity of violence suffered by women in First World countries is less than that suffered by women in Third World countries. Variables like economic development, access to justice and resources make the trauma resulting off gender-based violence more manageable in one country than another. This comprehension does not denude the experiences of suffering. It just presents an impeccable empirical fact- economic resources tend to reduce the suffering resulting from gender-based violence. Hence, ranking or grading trauma does not preclude comprehending its essential nature. This critique by Singh ignores the epistemological considerations that drive quantitative analysis in the social sciences.

Further, the comments by Agnes on the “age of the offender, the nuances of age and nuances of ability” only reflect a need for the crafting of more accurate laws. They do not by any means represent a dilution of the notion of justice. Reiterating a long felt need on the clarification and categorization of varied offences within the legal system- the legitimate jurisdiction of the law maker, does not refute feminist tendencies. Treating some forms of rape as different from others will make perfect sense to the judge and policy-maker who is confronted with the imminent questions of securing redressal of these crimes. If a particular society as a whole, feels that all forms of a particular conduct should automatically result in a categorization of rape- then that has to emerge from common consensus by the Parliament. Hence, clarifying the content of a crime and its appropriate punishment- the legitimate domain of the lawmaker, should surely not consternate the feminist?

It only seems like Agnes raises a very valid concern- should the legal system in India be influenced by hoary concepts on the “ought to be” of feminist theory floating in empty, vacuous space? Should justice be subject not to the devices of officials vested with such legitimate and constitutional authority, but be the subject of endless squabbling between feminist scholars of different persuasions? Regarding “human rights”, the CEDAW’s due diligence obligation calls for the creation of separate legal codes to redress violence against women where necessary. Hence, what is wrong if Agnes has just been prescient about the need for the existence of such a code in her comment delineating the fact that different crimes deal differently with the burden of legal proof in establishing a case of rape?

Further, Agnes’s suggestion for the recognition of marital rape within S. 498A of the Indian Penal Code reflects her deep engagement and activism with generations of victims of gender-based violence. Even a brief interaction with women who have suffered from domestic violence brings out the empirical belief in the sanctity of marriage. Many women express a deep and intense desire to remain in the marital relationship- irrespective of the intensity and severity of the beatings and torture inflicted on them. Given this empirical reality, it makes perfect sense for the law to be socially responsive, (at least as an interim measure before Indian society evolves to an exalted, utopian state where all women hold common views on their emancipation and the appropriate mechanisms to redress gender-based violence), and recognize martial rape as part of 498A. This development will speak to the concerns of women who wish to remain in their marital relationships sans the violence. Nevertheless, this raises an important issue that should be the subject-matter of legitimate debate by the Parliament. Dismissing such a concern as anti-feminist, once again, shows the failure to comprehend the epistemology of feminist legal theory as a route to gender emancipation.

Undoubtedly, the individual trauma and suffering stemming from an experience of gender-based violence cannot be belittled. But to a public official like the judge, lawyer or public prosecutor who is confronted with hundreds of such cases- an elementary and intrinsic ability to categorize crimes on the basis of their intensity is bound to emerge. Such national generalizations in the form of statistics are not unheard of. The Crime Records Bureau of India regularly compiles and produces such statistics, which afford an empirical glimpse into the nature of gender-based violence pervading contemporary India. Such categorizations or generalizations serve to highlight the intensity of gender-based violence and help policy-makers evolve solutions (in theory at least) to address them. This surely advances the feminist cause.

Finally, Agnes’s comments on the disappearance of trauma accurately reflects empirical reality. Any person who has suffered from negative experiences is offered professional counselling services that medically help overcome trauma. This is intensely true in the case of experiences of gender-based violence. Hence, reiterating this empirical fact does not denude the legitimacy of suffering. Medical practice has evolved to the stage of treating the mind and trauma counselling services are just an empirical aspect of reality. Hence, there seems to be nothing wrong with Agnes’s statement on the overcoming of trauma as it comes from the standpoint of an experienced activist who has dealt with such trauma. In fact, the formulation of a new legal code on crimes of sexual violence that calls for mandatory counselling in cases of gender-based violence will contribute to a significant improvement in the quality of life of victims.

Finally, any researcher dealing with the empirical facts on gender-based violence within Indian law has come across the misuses and abuses of the system. As much as feminism is an emancipatory ideal that refuses to accept any form of oppression, it cannot fail to develop a conscious and careful critique on the misuse that the legal system is currently being subject to in its name. There is no reason as to why a systematic analysis of the misuses of the Indian legal system vis-à-vis gender-based violence should not exist. Refusal to acknowledge the potential misuses denudes the academic legal researcher of the insights on the impediments to a successful resolution of the situation of gender-oppression. Moreover, studying such misuse also permits an empirical glimpses of the innate human tendency to exploit any system for material benefits. Why should the presentation of a viewpoint on the tendency to misuse the legal system from a feminist legal scholar and activist who has been systematically involved with the legal system for more than three decades cause such consternation? Sadly, it only stems from a complete lack of knowledge of the fundamental way in which the legal system functions vis-à-vis gender oppression.

In conclusion, an empirical observation of the activist trajectory of Ms. Flavia Agnes reveals her to be one of the foremost torch-bearers and contributors to Indian feminist legal theory. A mis-conceptualization of the contours of legal and empirical epistemology has resulted in the sad albeit inaccurate conclusion on the decades of activism and the personal suffering of Ms. Agnes, who defies the concept of the standard “elite” academic researcher and stands in intense testimony of the truth of the statement that the “personal is indeed the political”. Truly, a radical categorization and conceptualization of Indian feminist legal theory is the need of the hour in order to systematize and clarify the true voices of dissent and terms like anti-feminism and victim-blaming, which obfuscate the muddy waters even further.