Return to KPRB Main Page
Return to CSRD Main Page
Return to SINHAS Home Page
Subversive Sites: Feminist Engagements with Law in India
Author: Ratna Kapur and Brenda Cossman
Publisher: New Delhi, Sage Publications, 1996
Price: IRs 200
Yasuko Fujikura
In Nepal, the issue of equal property rights for women has been a heated topic of debate for the past few years. Concerned lawyers and women leaders have argued that the present inheritance law discriminates against women and conflicts with the constitution of 2047 B.S. which guarantees equal rights to all citizens without discrimination on the basis of religion, caste or gender. After the Supreme Court ordered the abolishment of all laws which conflict with this constitution, many organizations and pressure groups have come forward in support of equal property rights for women. However, much of the discussion in the media about this subject has been limited to asking whether equal property rights for women will bring about positive social change or lead to the deterioration of the "Nepali" social structure. We have not yet seen a thorough discussion on the meaning of equality or gender difference.
In Subversive Sites: Feminist Engagements with Law in India, Ratna Kapur and Brenda Cossman examine the complex relationship between women and law by exploring the history of women's movements and their engagements with law in India. They show how the legal regulation and judicial reasoning of women have been overwhelmingly informed by familial ideology which has operated to limit the efficacy of constitutional equality rights. They question the common understanding of the law as either instrument of emancipation or oppression, arguing that engagement with law should be reconceptualized as discursive struggles where dominant assumptions about family and gender difference are interrogated and destabilized.
In India, the demand for legal rights has long been central for the women's movements. Since the nineteenth century, social reformers, women in independence movement, and activists in the contemporary women's movement have all fought for women's rights and law reform. On the one hand, many of these political campaigns for women's rights have been successful -- the law has been reformed in response to these demands. On the other hand, those involved in the campaigns are now disillusioned by the gap between women's formal legal rights and the continuing inequality. The question of the role of law in bringing about social change has posed a dilemma for many within these movements.
To deal with this question, the authors probe the judicial approaches to equality and gender difference by evaluating some of the efforts at using equality rights which are guaranteed in the Indian constitution to challenge discriminatory laws against women. Two different approaches to equality are identified: a formal approach and a substantive approach. In the formal approach to equality, only those who are the same must be treated as the same. If the individuals or groups in question are seen as different, then they do not qualify equal treatment. In the substantive approach to equality, on the other hand, the focus of the analysis is not with sameness or difference, but rather with disadvantage. It is directed at eliminating discrimination against disadvantaged groups. Special provisions made for disadvantaged groups are not considered as an exception to, but a part of, equality.
The authors argue that, with some important exceptions, the judicial approach in India has been influenced by the formal approach, in which equality is equated as sameness. When it comes to gender difference, the court's assumptions about women are often informed by dominant familial ideology, in which women are understood as different from men, as weaker, subordinate, and in need of protection. Any legislation that is discriminatory against women can be justified on the basis that women and men are naturally different. In the authors' view, this judicial thinking may be the reason why constitutional equality rights have been ineffective in challenging discriminatory laws against women.
Through the examination of a wide range of legal provisions -- constitutional guarantees, case law, litigation, legislative measures -- the book exposes the limitations of using law in women's struggles. The authors do not, however, advocate the abandonment of the effort for legal change. Rather, they suggest more strategic engagement with law to advance the women's movement. They argue that engagement with law should be an effort to transform the meaning of equality and gender difference. They suggest, for example, that the substantive model of equality might alter the judicial reasoning and assumptions about gender difference, by directing attention to the question of disadvantage rather than sameness or difference. Law may not be able to bring about social change. In the authors' view, it is the process of engaging with law, rather than the end result, that have the potential for women's movements. In the process of developing strategies for litigation or law reform, women articulate their political demands and participate in contests over meaning.
Participants in debates regarding gender equality in Nepal will surely benefit from a reading of this book.
(Fujikura is a social science researcher)
Return to Contents of this Issue
Return to KPRB Main Page
Return to SINHAS Home Page
Rama Parajuli
Though Nepal is a signatory of Convention on International Trade in Endangered Species of Wild Fauna and Flora [CITES], the poaching and trade of rare wildlife specimens continue to occur. For example five rhinoceroses and ten tigers were killed in Nawalparasi District between June 1993 and April 1994. Bears are also illegally hunted for their skin and gallbladders and these items are traded in Khandbari in east Nepal. It is reported that bear gallbladders are smuggled to Hong Kong, Taiwan and Tibet. People have also been arrested close to the Nepal-Tibet border with bags of tiger bones. These examples of killings and trade in endangered species come from Narayan Belbase's book, The Implementation of International Environmental Law in Nepal, published by IUCN Nepal as part of its effort to bring about the legal implementation of the Nepal National Conservation Strategy which was completed in 1988.
This book with five chapters discusses all relevant International Environmental Instruments - treatries and conventions - for which legal obligations have been been created. Belbase tells us what each specific international convention deals with and its limits. He also talks about 'soft laws' such as the Stockholm Declaration and its Action Plan, The World Charter for Nature, Agenda 21, and the Rio Declaration which are not legally binding instruments.
The longest third chapter deals with the international legal instruments ratified or acceded to by Nepal. These instruments cover areas such as biodiversity and endangered species conservation, wetlands, ozone layer protection, global warming and world & national heritage sites. He also discusses Nepal's efforts to adopt these instruments by focusing on the Eighth Five-Year Plan (in which environmental concerns got some attention), the Nepal Environmental Policy and Action Plan and Environmental Impact Assessments Strategy.
Even when the conventions that Nepal has signed explicitly mention that signatories should take legal measures to incorporate the treaty provisions into their own domestic laws, Belbase states that Nepal has largely failed to do so until now. However he states that the desired domestic legal instruments for this purpose are being developed. In the limited instances of domestic adoption, the author argues that the provisions of the international treaties have been incorrectly incorporated. Moreover, from the point of view of implementation, they have been largely ineffective.
The primary function of the book, as stated by Ben Boer (an expert on environmental law) in its preface, is to support a series of recommendations to fulfill Nepal's obligations in the field of environmental protection and conservation. The book starts with an executive summary of recommendations and its every chapter ends with a set of recommendations. The book also ends with further recommendations. There are major overlaps in these three sets of recommendations and hence it is surprising that the author who is concerned about managing the deteriorating environment did not practice paper-conserving strategy while finalizing this book! Despite this criticism, the book will be very useful as a reference manual for all those who are concerned with environmental management in Nepal and as a textbook for students of international law.
(Parajuli, a journalist, reports for Kantipur)
Return to Contents of this Issue
Return to KPRB Main Page
Return to SINHAS Home Page
Sajag Rana
The extensive research and many "stories" John Grisham's friend Will Denton provided him are the stuff that has gone into the writing of The Runaway Jury. Obviously, Grisham's experience in the practice of law has to come in handy, but it surely takes more than just research work to produce runaway success thrillers such as The Firm, A Time to Kill, The Pelican Brief, The Client, The Chamber, The Rainmaker and now this bestseller. But leaving aside Hollywood's fascination for his thrillers, financial success and even the critical acclaim, my first impression of The Runaway Jury. was that it deserves all the paperback raves that were there.
Grisham's style, though racy, doesn't take away his eye for details in the descriptive scenes or when he adds on substance to his characters. Rather, it has the effect of keeping one on the edge as the suspense thickens. Yet the variation of style can not be missed. For instance, the plaintiff's lengthy deposition of the actual lethal substances a single cigarette contains and the havoc they can do to the human body reads as something really scary even to a reader who has come across them elsewhere. He does not in any way give the impression of being the neutral narrator. While the plaintiff's witnesses reveal the strategies tobacco companies employ to keep people hooked to cigarettes -- increasing the nicotine content -- and also the manner in which ads unabashedly aim to rope in teenagers, the defense's witnesses on the other hand, though they make an impressive list of names, are hardly a match compared to the emotive appeal of a cancer patient. Instead, there is a bungling alcoholic and a parade of beauties who cross their legs every once in a while at the witness box. At times, Grisham himself appears to burst out with scathing sarcasm at the manner in which cigarette companies claim they also serve the cause of health. Indeed, he strikes the right chord with contemporary American public attitude regarding smoking.
Towards the end of the novel, Grisham makes his protagonist Nicholas Easter parody Saddam Hussein, as he works on a fellow juror "...This is the mother of all tobacco trials.. this is where the two sides have met to unload their heaviest ammo. There's gotta be a winner and there's gotta be a loser. Clear and decisive. The issue of whether tobacco companies are to be held liable for cigarettes has to be settled right here. By us. We've been chosen, and it's up to us to reach a verdict."
The stakes are high. 'The big four' (the tobacco conglomerates) have much more to lose than the plaintiff representing Celeste Wood, whose husband died of lung cancer after smoking three packs of Bristols each day for over thirty years. The investment of both sides easily run into the millions. For the big four, a large plaintiff's verdict means immediate twenty percent loss in shareholder value for all four companies, and a one million lung cancer lawsuits within five years. And probably class action lawsuits and also redoubled efforts in the US Congress to outlaw the production of cigarettes.
While the defense led by a man called Fitch goes about either purchasing influence or intimidating jurors to vote against the plaintiff, the two characters work toward a verdict. Easter works on the jury and the judge while Marlee works on Fitch. While Easter insidiously gets the jury to follow him and becomes their spokesman and leader and even has a few members of the jury indebted to him, Marlee plays cat and mouse with Fitch and drives him, his hired sleuths and henchmen to despair. Easter demonstrates his power by getting three of the jurors 'bumped off' and staging a coup to become the jury foreman. Fitch, completely overwhelmed by what the two could do becomes completely convinced that 'his' Marlee will fetch him a verdict. He finds her his soulmate. She swindles a cool ten million bucks out of the big four through him, takes off to George Town, Grand Cayman and plays havoc with stock prices, shortselling the brands of the big four. She makes a killing of approximately 22 million dollars. At the other end, Easter gets the jury to award Celeste Wood compensatory damages worth two million dollars and punitive damages worth four hundred million dollars. The runaway verdict of a runaway jury!
The suspense is great. But Marlee's story gives the end an unconvincing melodramatic twist. In some ways, it does dilute the overall impact, but the moral dimension (revenge motif, Marlee's links to anti-tobacco lobbies, and her repayment of the ten million dollars to Fitch) raises the story to a greater level than just making it a tale of corrupt people swindling one another. Grisham's own moral considerations could also have inclined him to work toward this end. One final word: All smokers ought to read this novel for obvious reasons.
(Sajag Rana works for The Kathmandu Post)
Return to Contents of this Issue
Return to KPRB Main Page
Return to SINHAS Home Page
Samrat Upadhyay
In the late 80s, a prominent American newspaper ran a front page article on India, reporting how "weird" Indian cities can be (if I remember correctly, the focus was on New Delhi), where stray cows vie for equal space with deformed beggars. Consequently, angry letters were sent to the newspaper, complaining that the article made it appear as if the whole of India was "weird," full of irrationalities and fantastic happenings that would appeal to a Westerner's notion of what is "exotic" and reinforce the idea of Third World countries as chaotic, unpredictable and, well, uncivilized.
Reading Chitra Banerjee Divakaruni's collection of stories, Arranged Marriage, arouses similar feelings, as if one were watching a made-for-TV movie about India in an American network and knowing that although the movie contains some truth, it deals only with the surface truth, that somehow the picture has been "arranged" to make heavy generalizations about India (or about the Hindu culture) so that it feeds the exoticized fantasies of Westerners ("What can you say about a country where brides are burned routinely for not bringing enough dowry?" is not an uncommon question from some Americans).
While we can understand the American reporter's hasty caricatures on a short assignment to India, Indian writers themselves have not been exempt from exoticizing their country to cater to the fast palates of Americans. Bharati Mukherjee, now acclaimed as a major American writer, in her novel Jasmine makes an uneducated village girl from Punjab "make it" to--and in--the United States and create for herself various sophisticated, educated personas so that she can assimilate into the American melting pot. The problem with Jasmine's journey, as some Indian women critics have pointed out, is that in an attempt to portray her immigrant heroine, Mukherjee plays up the picture of Indian women held back by her gender and by "backward" culture and economy of the Third World. Not to mention that Mukherjee also depicts India, specifically civil strife-torn Punjab, as filled with irrational, fighting women, cackling astrologers and marauding men so that Jasmine can be made into a prime candidate for emigration.
This selective representation also happens in Divakaruni's portrayal of Indian women, who find themselves suffocating under the burdens and constraints of traditional arranged marriage, whose husbands are invariably insensitive, controlling louts (even the educated ones) determined to put their wives in their "proper" places. What's wrong with this picture? It reduces the complexities of Indian marriage and of men-women relationships into a neat package (ready for consumption of the Western public), where the binary oppositions are clear and discernible. It also suggests, sometimes subtly and sometimes emphatically, that the only way for South Asian women to get out of this predicament is to adopt the rules of "unconventional" marriage/love relationships of America, thereby attaining a "freedom" that is the other name of Western "development". Thus liberation is directly linked to a traditional woman shedding her backward Indian sari and sporting a blouse and a skirt, as the widowed character envisions herself doing in the story "Clothes." This emphasis on discarding one's roots and assimilating into the mainstream American society has been the backbone of Bharati Mukherjee's fiction, and now we see the same equation (Western values = Emancipation) in Divakaruni's work.
Arranged Marriage, then, for Divakaruni becomes a metaphor for convention and its rigidity, preventing Indian women from freedom which the stories' characters suggest can only be found minus the men who, as one character puts it, "have destroyed our mothers." The women protagonists in Divakaruni's stories come in all sorts and colors (very vivid colors, one might add, for "exotic" Indian words are sprinkled generously throughout the text, adding to the mystery and orientalization for the American reader). "Clothes" describes the journey of an Indian bride who finds herself widowed after coming to California. "Silver Pavements, Golden Roofs" charts the disappointment of an Indian woman who comes for college to the U.S. and finds that her blue collar aunt and uncle have failed to realize the American dream. In "The Word Love," a Ph.D. student in California gets shunned by her mother for living with an American man, and so on. The problem is not that Divakaruni hasn't assembled--or "arranged," to borrow her term--a fair cross section of Indian women. The problem is that the narrative voice that tells the story, whether as a character or as third person omniscient, fails to explore these women's complex psychologies in their journeys from convention to modernity and in their displacement from a "Third World" to a "First World". The resulting effect is that the reader is left with gross generalizations, stereotyped characters and annoying clichés.
A typical example of this weak execution is "Silver Pavements, Golden Roofs," a story about a young college woman with blue collar relatives in Chicago. Jayanti, upon being met by Bikram-uncle and Aunt at the airport, is struck by how "ugly" Bikram-uncle is: "Bikram-uncle is a short, stocky man dressed in greasy mechanic's overalls that surprise me. He has a belligerent mustache and very dark skin and a scar that runs up the side of his neck." A villain from a Hindi film? No, just a "low-class" man--to use Jayanti's words--who suffers racism at the hands of whites who think he's taking their jobs away from them. The politics of racism in America eludes our college-educated Jayanti, who even after Bikram-uncle mentions how the Americans hate "kala admi," has this profound thought to offer us: "What has made him detest this country so much?" We want to yell: Well, he just told you, didn't he? Later, after she and Aunt experience direct racism while out on a walk and Bikram-uncle hits Aunt for going out without his permission, Jayanti wishes that she were back in Calcutta. The story ends with Jayanti's hands being covered by snow, "no longer brown but white,white, white," implying... what? That the pain of racism can be hidden by assimilation into the white culture?
What's wrong with this picture?
(Upadhyay is a poet and a novelist)
Return to Contents of this Issue
Return to KPRB Main Page
Return to SINHAS Home Page
by Sanjam Ahluwalia
Mrinalini Sinha's Colonial Masculinity: The "manly Englishman" and the "effeminate Bengali" in the Late Nineteenth Century is an impressive addition to the rapidly growing revisionist scholarship on British imperialism. Sinha explores new ways of constructing historical narratives, weaving together histories of India and Britain to examine how political, social, cultural, and economic developments during the late nineteenth century had repercussions in both countries. Sinha challenges the notion of the metropolis being the active agent in transforming the colonies, while itself being culturally insular and unaffected by the exchanges in colonial peripheries. This work engages with historiographical debates within colonial Indian and imperial British histories to argue for a dialogue among historians to recognize the overlaps and intersections within the two histories.
Sinha presents her argument in four chapters, assessing different administrative and legal interventions as well as the debates these triggered in India and Britain. This work specifically, focuses on the Illbert Bill controversy 1883-84, the Native Volunteer Movement 1885-86,the Public Service Commission of 1886-87, and the Age of Consent controversy of 1891. These chapters are chronologically organized with a geographic focus on Bengal. The lens of "colonial masculinity," helps reinterpret these events, presenting a rich and complex historical narrative.
Sinha posits colonial masculinity as historically negotiated, defining the cultures both of the colonized and the colonizer. The discourse of colonial masculinity is situated within what is defined as the "imperial social formation" (p.2). The historical agents constituting, and defining colonial masculinity were not only white men, but Indian middle class men and women and white middle class women. The readers are allowed to recognize heterogeneity within the otherwise unified categories of the colonizer and the colonized.
Methodologically this work depends on an eclectic borrowing from Marxism, feminism, and post-modernism, while remaining grounded in rich archival research both within Indian and British histories. Colonial Masculinity explores the materialist and discursive features that shaped the histories of this period. While recognizing the close imbrication of power/knowledge there is a sharp focus upon historical specificity. A critique of Edward Said's Orientalism is presented by demonstrating how the categories of the "colonized" and the "colonizers" were shifting rather than fixed constructs. The locus of power is shown as constantly shifting between different social groups within and between the two categories of "colonizer" and "colonized."
Building upon existing historiography Sinha argues that Indian and British histories need to be recognized as part of the same continuum.This work makes it important to question conventional national boundaries that have so far determined historical narratives to uncover how nations as imagined communities are constituted to safeguard specific interests. The focus on masculinity, however, does not allow the author to fully explore how women may have exercised their agency and determined the terms of the debates on legislative interventions reviewed in this work. By exclusively examing public sphere politics the author neglects the important question of how "masculinity," might also have been negotiated and contested within the private sphere.
Although an analysis of historical events through the lens of masculinity is novel and exciting within Indian history, it does tend to write out other possibilities. The argument presented in the last chapter on the Age of Consent marginalizes the issue of female agency. Presenting the debate on Age of Consent as framed in terms of colonial masculinity, inadvertently puts a closure to the historical debate, robbing it of other possible readings. The argument in this chapter closely resembles that of scholar Lata Mani, where the latter claims that in the debates over sati in the early 19th century, Indian women figured primarily as the "site on which tradition was debated and reformulated," rather than as historical subjects in their own rights. This argument clearly leaves little space for analyzing women's responses and their interventions in the debate. It reinforces women's absence from history as valid subjects, and denies them active agency in shaping public debates.
Sinha's work marks a significant intervention within both Indian and British histories, questioning the traditional geographical boundaries within which scholars locate their research. The possibility of weaving two or more histories is remarkably demonstrated in this path breaking work. Finally though the focus on masculinity does present problems, at least at this point within Indian historiography, "colonial masculinity" is a new and useful lens with which to critically examine gender relations in the past.
(Ahluwalia is a Ph.D. candidate in history at the University of Cincinnati, USA)
Return to Contents of this Issue
Return to KPRB Main Page
Return to SINHAS Home Page
Last changed: 98/08/14