State and Politics in India 0195639502, 9780195639506

339 59 34MB

English Pages 588 [591] Year 1997

Report DMCA / Copyright

DOWNLOAD FILE

Polecaj historie

State and Politics in India
 0195639502, 9780195639506

Table of contents :
1
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402
403
404
405
406
407
408
409
410
411
412
413
414
415
416
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
454
455
456
457
458
459
460
461
462
463
464
465
466
467
468
469
470
471
472
473
474
475
476
477
478
479
480
481
482
483
484
485
486
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
503
504
505
506
507
508
509
510
511
512
513
514
515
516
517
518
519
520
521
522
523
524
525
526
527
528
529
530
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
552
553
554
555
556
557
558
559
560
561
562
563
564
565
566
567
568
569
570
571
572
573
574
575
576
577
578
579
580
581
582
583
584
585
586
587
588
589
590
591
592
593
596

Citation preview

State and Politics in India

Digi tized by

Google

Original frcm

UNIVERSITY OF MICHIGAN

Themes in Politics Series GENERAL ED._ITORS Rlljeev Bharg ava Partha Chatterjee

The Themes in Politics series aims to bring together essays on import­ ant issues in Indian political science and politics - contemporary political theory, Indian social and political thought, and foreign policy, among others. Each volume in the series will bring together the most significant articles and debates on each issue, and will contain a sub­ stantive introduction and an annotated bibliography.

Digiti zed by

Google

Ori ginal from

---IU:1..i�, l�OF MJCHlGAN.

,...

--

State and Politics in India k Edited by

Partha Chatterjee

DELID

OXFORD UNIVERSITY PRESS CALCUTTA CHENNAI MUMBAI 1998

Dl gl tlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

.

Oxford Univ:::,sity Press, Great Clarendon Street, Oxford OX2 6DP

J 'J j Oxford New York Athens Aue/eland Bangkok Calcutta ·5 /]-1 2 Florence Cape Town Chennai Dar es Salaam Delhi Hong Kong Istanbul Karachi

/

managed to arrive at scat adjustments with the Bharatiya Janata Party. The Congress-I was defeated, securing only 197 seats in the Lok Sabha. The National Front could not win a majority on its own, but formed a government with V.P. Singh as Prime Minister with the outside suppon of the BJP and the Left parties.

Into the l 990s Rise md Fa/J of the National Front The National Front government lasted only a year. It was de­ pendent on outside suppon, and fmally it was its relation with the BJP, established in the interest of defeating the Congress-I, that snapped. The communal situation had become especially charged, with the Hindutva forces, now organized in the so-called Sangh Parivar consisting of the BJP, the RSS and the Vishwa Hindu Parishad, carrying out a huge campaign to build a temple at the site o f the Bahri mosque in Ayodhya. In the state assembly electiollS in March 1990, the BJP won majorities in Madhya Pradesh and Himachal Pradesh where, for the first time, they formed their own governments. In Rajasthan, the BJP formed a coalition government with the Janata Dal. The crisis that soon ovenook the National Front government was both internal and external. Internally, the principal difficulty centred around the position of Devi Lal, the deputy Prime Min­ ister, whose son, Om Prakash Chauthala, who had become Chief Minister of the Janata Dal government of Haryana, had been charged with gross election rigging. Put under great pressure, including a threat of resignation from the Prime Minister himself, Chauthala was forced to resign, but Devi Lal became a sworn antagonist of the government. In August 1990, Devi Lal was dropped from the cabinet. The external crisis built up over the confrontation with the BJP. In June 1_990, the VHP declared that they would go ahead with the building of the temple at Ayodhya and the BJP aMounced that its leader L.K Advani would take a Rama rath procession through the length and breadth of the country, mobilizing sup­ pon for the temple. In August 1990, V.P. Singh aMounced that the government would implement the recommendations of the Mandal Commission made several years earlier for the reservation

Digiti zed by

Google

Ongmal from

UNIVERSITY OF MICHIGAN

36 St11u 1111d Politics in India of 27 per cent of government jobs for the Other Backward Classes. The announcement led to violent protests by upper-caste students and youth in many cities all over India. In October, Advani's rath procession was stopped in Bihar on the orders of Janata Dal Chief Minister Laloo Prasad Yadav and the BJP leader arrested. A few days later, VHP volunteers trying to enter the site of the mosque in Ayodhya were fired upon by armed police deployed by the UP government of Mulayam Singh Yadav. The crisis was now complete. In early November, sixty-eight MPs of the Janata Dal left the party with Chandra Shekhar and Devi Lal as their leaders to form the JD (Samajwadi). Two days later, the National Front government was defeated in a confidence vote in the Lok Sabha - the BJP, the Congress-I and the JD (S) voting against the government.

The Chandra Shekhar Government Chandra Shekhar became Prime Minister of a minority govern­ ment with Congress-I support. In Gujarat and Uttar Pradesh too, the former JD Chief Ministers Chimanbhai Patel and Mulayam Singh Yadav continued in power with Congres s -I support: The government was entirely at the mercy of the Congress-I and did not even make a pretence of formulating a coherent policy. In March 1991, Chandra Shekhar resigned. The ninth Lok Sabha was dissolved less than a year and a half after its formation. Halfway through the general elections in May 1991, Rajiv Gandhi was assassinated at an election meeting in Tamil Nadu by suspected Tamil militants from Sri Lanka. The death of the Congress-I leader affected the results in the remainder of the elections. The Congress-I did not win a majority but; with 232 seats, became the single largest party. No coalitions being pos­ sible, P.V. Narasimha Rao, elected leader of the Congress legis­ lature party, was appointed Prime Minister. Congress in Power and in Decline The most important shift carried out by the new government was to bring economics to the forefront of the political debate. ,, Manmohan Singh, who became the finance minister, was a senior government economist who was now given the task of steering

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

Introduction 37 through the political process a. policy of structural adjusnnent of the economy required as a condition for getting loans from the International Monetary Fund. The policy of liberalization and loosening of government regulations which had taken place in small doses through the previous decade was now sought to be accelerated into a package of economic refonns that would attract large foreign invesnnents. Although the government was in a minority in the Lok Sabha, it managed to pass several controversial measures and survive votes of no-confidence because the BJP and the NF-left bloc would not combine to bring it down and force yet another general election. In the meantime, the BJP stepped up its campaign for the building of a temple at the disputed site in Ayodhya. InJune 1991, it had won the UP elections on this issue. With its own govern­ ment in the state, its mobilization reached a peak. On 6 December 1992, /car stValcs stormed the premises, encountering little resis­ tance, and demolished the mosque in a matter of hours. The event sent shock waves through the country. The government ofKalyan Singh w:as dismissed in UP, and a few days later the BJP govern­ ments in Himachal Pradesh, R.ajasthan and Madhya Pradesh were dismissed as well. However, the central government seemed quite indecisive on how to deal with the situation politically. InJanuary 1993, there were massive killings of Muslims in &mbay and Gujarat. The communal situation was at its worst ever since In­ dependence. The situation in Kashmir also became particularly disturbed. In the mid-1980s, opposition politics inJammu and Kashmir had found a voice in the participation of the National Conference in the conclaves of non-Congress parties all over India demanding greater autonomy for the states. In 1986, after Farooq Abd�ah went into an alliance with the Congress-I, the resentment against the power of the centre was diverted into more militant activities. President's rule was declared in Jammu and Kashmir in 1990 and, for the next few years, it was a story of constant confrontation between Indian security forces and a variety of armed militant organizations, leading to thousands of deaths and a complete disruption of civic life. ') Narasimha Rao's government, however, displayed great skill in parliamentary rnanOCUYreS in order to s12y in power. In 1993, it won over to its side a block of members belonging to the Ajit

Dlgltlzedby

Google

Original from

UNIVERSITY OF MICHIGAN

38 State and Politics in India Singh faction of the Janata Dal. With by-election victories and small accretions in strength,it finally managed to secure a majority on its own. However, as far as the internal strength of the party was concerned, or indeed its power to gather mass electoral sup­ port, the Congress-I was set on a path of rapid and irreversible decline. By 1995, as many as twelve states - Andhra Pradesh, Bihar, Delhi, Gujarat, K.arnataka,Maharashtra,Rajasthan,Silckim, Tamil Nadu, Tripura, Uttar Pradesh and West Bengal - had governments run by parties other than the Congress-I. Even more significantly, it seemed to have lost its position as centre of the political system. Especially in northern and western India, the BJP was vying for that position, setting the political agenda and profiting from the split in the non-BJP vote. With the emergence of distintt regional party systems in the states, the Congress was now one of the many parties with a position in several of those regional systems.

The I 996 Elections The general elections of April-May 1996 confirmed these trends. The BJP made a strong showing in the northern and western states and emerged as the single largest party in Parliament. The Congress-I finished second. The various regional parties, includ­ ing the Janata Dal, the Telugu Desam Party, the DMK, the AGP, the breakaway Congress group in Tamil Nadu led by G.K. Moopanar and the left parties, came together to form an NF-LF bloc, later called the United Front. President S.D. Shar­ ma decided to invite A.B. Vajpayee of the BJP, as leader of the single largest party, to form the government, even though the NF-LF bloc, with Congress-I support, was claiming to have a majority. The Vajpayee ministry lasted barely over a week, by which time it became clear that the BJP would not be able to get the support of a majority in the Lok Sabha. Vajpayee resigned and H.D. Deve Gowda of the Janata Dal, then Chief Minister of K.amataka, was asked to form a ministry after the Congress-I declined to do so. The United Front government passed its first vote. of confidence in June 1996 with the support of the Con­ gress-I and the left parties. It was also the first occasion when a left party - the CPI - joined a government at the centre. Apart from the emergence of the regional parties as a combined

Digi tized by

Google

Original frcm

UNIVERSITY OF MICHIGAN

Introduction 39

force bidding fur power at the centre, the most recent period of Indian politics has also been marked by the rise in northern India of a new political assertion of the lower caste groups. In terms of their organization, they are variously identified with the Janata Dal, the Samajwadi Party, the Bahujan Samaj Party or qie Samata Party, and even these identities and the pattern of their political alliances are extremely fluid. Nevertheless, along with the rise of communalized political identities, the emergence of the new dalit­ bahujan formations is an important aspect of the changing political structures in India fifty years after Independence. It is possible that future historians will describe the entire period we have covered as the Congress era. Certainly, a narrative of the political history of India as a whole in these fifty years has had to be built around the story of the rise and decline of the Congress as the central active force. It is a measure of the fundamental uncertainties facing Indian politics today that no other force has decisively replaced the Congress.



Dig1t1zeo by

Google

Origi�al rrom

UNIVERSITY OF MICHIGAN

Digiti zed by

Google

Original from

UNIVERSITY OF MICHIGAN

I The System l'""J""\e early attempts to present a systematic account of Indian l. politics after Independence were usually placed within a liberal modernization theory and, more o�en than not, were cel­ ebratory in tone. Certain key institutions of the modem state were shown to have been put in place in the period of British rule; after Independence, it was believed that with a liberal democratic con­ stitutional system and universal suffrage, the Indian political sys­ tem would gradually develop its own processes of democratic decision-making, rational administration �d modem citizenship. Features such as patronage relations based on caste or religious loyalties and solidarities based on ethnicity were regarded as ves­ tiges of underdevelopment that would go �way with greater par­ ticipation of the people in democratic institutions. Later, more complex variants of the modernization theory were produced, most notably by Rudolph and Rudolph in The Modn-nity ofTradi­ tion (1967) and in the collection on Caste in Indian Politics (l 970) edited by_Rajni Kothari, in which it was argued that even elements of 'tradition' such as caste or religion could infiltrate a modem system of political institutions, adapt to it and, by transforming themselves, find an enduring place within it as parts of political modernity itself. The most influential account of the Indian 'system' from this perspective was produced by Rajni Kothari in his Politia in India (I 970). His theoretical tools were largely structural-functional. He identified the 'dynamic core' of the system of political institutions in India in the Congress Party. The whole system worked through the dominance of the Congress. It was a differentiated system, functioning along the organizational structure of the party but •

---

Digiti zed by

Google

Ongmal from

UNIVERSITY OF MICHIGAN

42 State and Politics in India

connecting at each level with the parallel structure of government, allowing for the dominance of a political centre as well as dissent from the peripheries, with opposition parties functioning as con­ tinuations of dissident Congress groups, the emphasis being on coalition-building and consensus-making at each level and on securing the legitimacy of the system as a whole. Through an· accommodative system such as this, the political centre consisting of a modernizing elite was shown to be using the powers of the state to transform society and promote economic development. Kothari gave it the simple name 'Congress system'. Kothari's framework was criticized at the time from different perspectives - for overvaluing the consensual character of the system, for overestimating the autonomy of the elite, for taking far too gradualist a view of social and political change, and so on. But its usefulness was overtaken by the events of the 1970s. The rise of militant oppositional movements and the increasing use of the repressive apparatus of the state, culminating in the Emergen­ cy, were clearly phenomena that went beyond the consensual model of the Congress system. From the 1980s, Kothari himself developed entirely different frameworks for presenting empirical as well as normative accounts of Indian politics. Marxist accounts were better able to describe conflicts and the repressive use of state power as systemic features of Indian politics. However, much of the literature, especially that produced by theorists working within rigid frameworks laid down by party programmes, was dominated by a sterile debate over what was called the character of the state. More nuanced accounts that tried not only to describe enduring structures of class power but also specific changes in political processes and institutional practices 1 began to emerge in the l 980s. The essay by Sudipta Kaviraj j reprinted in this section is one of the best examples of this genre , of Marxist writing on Indian politics. The focus is on the state, : I but the analysis takes the state as a site over which several dominant classes try both to outmanoeuvre one another and to work out coalitional arrangements in order to preserve their dominance as a whole. The political process can then be described in terms of changing balances in the ruling class coalition. Politics, in other words, can be given a structure in terms of class forces as well as a history in terms of changing balances. The overall historical pattern is described, following Antonio Gramsci, as the passive

Digiti zed by

Google

Ongmal from

UNIVERSITY OF MICHIGAN

The System 43

revolution of capital, making institutional changes understandable in terms of a non-classical history of modernity, but with the interesting variation that the success of the revolution is not as­ sumed: the apparent successes of Indian capitalism could themsel­ ves lead to an institutional failure of the political system. Marxist accounts are often strong in describing the central structures of state power and their relations with dominant or­ ganized forces in Indian society, but when it comes to connecting such an account with local societal .institutions and micro-level political practices, they are on much less sure ground. Other attempts have been made in recent years to theorize Indian politics in terms of certain systematic state-society relations. Rudolph and Rudolph in their later work, In Pursuit of Lakshmi: The Political &ontmty ofthe Indian State (1987), which takes organized interest groups as the principal actors in the system, have tried to periodize Indian politics in terms of the tussle between a 'demand polity' in which societal demands expressed as electoral pressure dominate over the state and a 'command polity' where state hegemony prevails over society. Rao and Frankel in their two-volume edited collection, Dominance and State P(IU)er in Modern India (1990), have made a distinction between public institutions such as the bureau­ cracy and organized industry and political institutions such as legislatures and political parties. The history of politics in inde­ pendent India, they say, is one of the rising power of formerly low status groups such as the lower castes and the poorer classes in the political institutions and the attempt by upper caste and middle class groups to protect their privileges in the public institutions. Atul Kohli in Democracy and Discontent (1991) has described the recent history of the system as one in which, by surrendering to immediate electoral pressures exerted by various social groups, � democratic state institutions have been allowed to decay, leading J to an all-round crisis of govemability. Rajni Kothari in his recent writings has attempted to develop a normative framework that serves less as an explanation and more as a critique of the present political system. He notes that unlike · i in the early decades after Independence, the national political elite / has lost its autonomy and the state has ceased to be an agent of 7 social change and has instead become more and more repressive. ) His argument is that there is a need now to assert, through grass-roots movements and non-party political formations, the

Dig1t1zeo by

Google

Origi�al rrom

UNIVERSITY OF MICHIGAN

44 State and Politics in India autonomous force of civil society over a repressive and increasingly unrepresentative state. Another important theorist who has con­ sistently articulated a moral critique of the Indian sate system is Ashis Nandy, in whose view, derived as he says from a modified Gandhian position, the modernist sate has repeatedly failed whenever it has tried to impose on Indian society a set of institu1i tional practices adopted from the modem West that go against i the firmly entrenched everyday practices of collective living in local communities. Social change, if it is to be both successful and just, must emerge out of those collective everyday practices.

l

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

1 A Critique of the Passive Revolution· Sudipta Kav_iraj

I '"Tlie story of Indian politics can be told in two quite different .l �ays, through two alternative but mutually reinforcing con­ structions. I believe that the wk of a proper Marxist analysis of Indian politics is threefold: first, constructing internally consistent accounts of our political history in these two ways, and then a more theoretical enterprise of making these consistent with each ,, other. One of these would tell the story of structures (if structures are things of which stories can be told)1 - a story of the rise of capitalism, the specificities of transition, the formation and mat­ uration of classes, the internal balance and architecture of the social form, the making and breaking of class coalitions, etc. Such things take long periods to happen, and occur through slow glacial movements. Another story would have to be constructed in terms " of actual political actors, suspending the question of more fun­ damental .causalities for the time being; it must be told in terms of govenµnents, parties, tactics, leaders, political movements, and similar contingent but irreplaceable elements of political narra­ tives. The second story - the narrative of the Indian state • This chapter was first presented at the Indo-Soviet seminar on 'The Indian Revolution' in Leningrad fr o m 14-17 August 1987. I There is a theory which holds that structures are constructs of such a kind that they deflect and obstruct historical reflections. On this untenable idea there is an impressive body of literature, the most well lcnown and long­ winded being E.P. Thompsons's Tbt Pl1Vtrty ofTbeury and Othn-&IIJS (Lon­ don: Merlin Press, 1978).

Digiti zed by

Google

Ongmal from

UNIVERSITY OF MICHIGAN

46 State and Politics in India would be related to the successes (in its own terms) of Indian capitalism and its failures, but is not entirely reducible to them. For in the growth of a late capitalism like the Indian one, the social form of capitalism itself realizes that the state is a historical pre­ condition for much of its economic endeavours and for its political , security. Paradoxically, this state, which seemed remarkably stable / and legitimate when Indian capitalism was relatively weak, has / come into an increasingly serious crisis with the greater entrenc h ment of the social form. 2 Attempted critiques of the Indian polity, to be convincing, must attempt to do the three things I mentioned earlier: they must try to plot the simple narrative line of this crisis, i.e. provide a structure to the simple flow of political events. This is to be taken seriously as a narrative. Stories told of the same thing by various reporters differ: similarly, different types of narratives would differ as to where the ruptures lie, where the continuities, how much significance to accord to which incident, etc. 3 This kind of thing could be called an event-to-event line of causality. But this simpler narrative account must also reveal a deeper causal profile related to a structural causal field:4 it must show fundamen­ tal structural incompatibilities which have expressed themselves through these upheavals. This could be called a structure-to-event causal line. In this chapter, I have tried to show what kind of a ( political model might work in the structural anal is of Indian ys � politics; but it is inadequate in two ways. First, the model itself is l sketchy; and second, I have not worked out how the narrative can be fitted on to the workings of the model adequately. I believe optimistically that such a model has better chances of success than earlier, more wooden, ones generally in use. 2 Some modernization theorists do note this paradox, but they would give it a bland historical solution, by asserting that in the earlier stages the state had to cope with much lower levels of political 'demand'. Present difficulties of the state arise from the fact that these demands have multiplied through greater mobilization but the state's resources for coping with them - its 'supports' - have remained static. This indefensibly marginalizes the ques­ tion of economic development, and is indifferent to the enormous growth of state resources and i ts deliberate aeation of a network of advantage distribu­ tion. 3 In the periodization of Indian politics, Rajni Kothari, for instance, saw the break with the Nehruvian system as coming in 1975. On my reading, this ruj>ture is a much more slow moving affair, and begins much earlier. 4 J.L. Mackie, 'Causes and Conditions', in E. Sosa (ed.), Causation 1111d C1111ditil1'Ulk (London: OUP, 1975).

Dlgltlzedby

Google

Original from

UNIVERSITY OF MICHIGAN

The System 47

II Long-term structural compulsions on Indian politics, the choices of both the ruling bloc of propertied classes and the unorche­ strated subaltern classes, arise in several well-known ways: (i) inclusion of the Indian economy in the capitalist in�emational market and its division of labour; (ii) the received structure of colonial economic retardation; and (iii) the fundamental choice exercised by the leadership of the new Indian state in favour of a capitalist strategy of economic growth through a set of basic legal and institutional forms, e.g. the format of legal rights in the constitution, the set of ordinary laws ruling economic and cor­ porate behaviour, the enacanent of industrial policy and other similar initiatives. This was, in a historical sense, a choice which obviously structures all other choices. These structures and their internal evolution have received a great deal of analytical attention from Marxist economists. For an analysis of the state, we have to assume some well-known Marxist propositions on the nature � of India's capitalist development. The social formation in India is generally characterized as a late, backward, post-colonial c a p ­ italism5 which functionally uses various enclaves of precapitalist productive forms.6 Politically, however, it would be wrong to assimilate the Indian capitalist experience into either the model of late-backward European capitalism of the Russian kind,7 or into a lower late-backward form in which the imminent collapse of an immature caritalism makes the possibility of a socialist revolution realistic. Although much of the Indian countryside still shows persistence of semi-feudal forms of exploitation, one can make a case for a characterization of the social form as capitalism, for the judgment involved in such things is not a matter of a simple statistical or spatial predominance. Marx had, in the famous passage of the Grundrisse provided a methodological s However, I do not find the theoretical positions worked out by Hamza Alavi about th e post-colonial state persuasive in the Indian case. 6That is contrary to the traditional linear belief that precapitalism is ingmn-11/ (in this case, taken to mean i n every instance) dysfunctional to capitalist growth and would be liquidated historically. 7 Of the kind analysed by Lenin in his theory of the Russian revolution. Such differences arc clearly marked out i n Lenin's discussions of the colonial question. 8 Of the type exemplifted by China in the Comintern debates from the fourth to the sixth Congresses.

D1g1tizeo by

Google

Origlr.al from UNIVERSITY OF MICHIGAN

48 State and Politics in India

injunction about how to characterize such transitional economies through a complex, historically inclined, identiftcation.9 To trans­ late his colourful metaphor is not altogether easy - what does the simile of a predominant light mean in precise economic terms? - but it would be generally accepted that the capitalist fonn predominates in terms of controlling the economic trends of the totality of the social form. The capitalist logic dominates and gives the general title to the economy through its ability to reproduce itself on an expanded scale, set the tone, the targets for the economy as a whole, and therefore to determine the historical logic of the totality of the social formation. Although there are obviously other sectors and types of production in the Indian economy, their reproduction has been subsumed, both economically and politically, under the logic of reproduction o f capital. It is the second part of this nexus which ought to be o f special attention in an analysis of the Indian state. � In countries like India the process of reproduction of capital ldepends crucially on the state. Although the state-capital connec­ ;tion has been extensively studied in empirical economic terms, surprisingly little theoretical use.has been made of this in the study of the Indian state. Still, some minimal generalizations can be made as starting points of a political enquiry. The state in India is a bourgeois state in at least three, mutually supportive, senses. (I) When we say that a state is 'bourgeois' this refers in some way· (though this particular way can be very different in various his­ torically concrete cases) 10 to a state of dominance enjoyed by the capitalist class, or a coalition of classes dominated by the bour­ geoisie. (2) The state form is bourgeois; i.e. the sense in which we speak of the parliamentary democratic form as being historically a bourgeois form of government. This is not just a matter of registering that such forms historically arose during the period of rising capitalism in Europe and spread out through a process of cultural diffusion. Rather, th_e Marxist view would posit a stronger, structural connection between bourgeois hegemony (or domina­ tion) and this form of the state.11 It arranges a disbursing of 9 Karl Marx, Grundris.rt (Middlesex: Penguin, 1973), pp. 106-7. 10 For inst.Ince, the different political trajectories analysed by Gramsci

in the

Pris

z

158

The lnstitutiuns I59 shows the number of seats that the Congress and the other parties have won for every 1 per cent of the vote. In most election years, for each percentage vote cast in its favour, Congress won more than twice the number of seats won by the opposition. TABLE 3.12 Number of Seats Won for Every I Per Cent of Votes

Election Year

.... t--, t--, °' °'.... t--, "' i °' °' °' .... °' .... .... .... °' .... °' .... °' .... °' .... °' .... °' .... �

t--,



t--, 'C



CIQ

..



� �

Congress 8.1 7.8 8.1 6.9 8,1 4.5 8.3 8.6 5.0 6.4 7.2

Other Parties

2.3 2.4 2.4 4.0 2.9 5.9 3.1 2.4 5.5 4.6 3.6

'Swing' is one of the standard instruments of electoral analysis. It is a simplified measure of the change in the strength of the dominant party or p;p-ties between one election and the next In what have been predominantly two-party systems of Britain and New Zealand, it has been defined as the average of the change in percentage margin between the two leading parties. 12 For example, if party A won the first election by a margin of 6 per cent and the second by two per cent, then the swing against it between the two elections is ((6%-2%)/2) .. (4%n) "' 2%. Of course, this 2 per cent swing is also exactly equal to the drop in percentage votes won W,A, which is in tum equal to the percentage gain in votes by B. 1 This direct relation between a change in a party's vote and the change in margin breaks down when there are more than two parties. Whether the swing is calculated from state or nationwide totals of votes, or from a single constituency, it offers a convenient

-----------------------

For an exact dilCUSSion of British de6nitions of swings see M. Steed's Appendix in D. Buder and A. King (1965). 12

13

. El«tion

Candidate A Candidate B Manzin of victo!l

Dlgltlzeo by

1

53

47 6%

Google

2

51 49

2%

Cbtmge in % Swing Vou

-2 +2 ,6-2)/2 • 4/2 • 2%.

Original from

UNIVERSITY OF MICHIGAN

160 State and Politics in India

measure of a change in a party's popularity. The variations in swing in different parts of the country or different types of constituencies can provide revealing insights into the possible causes underlying voting trends. But the 'swing' concept is above all a tool for estimating the likely relationship between seats and votes. If there is uniform nationwide behaviour (i.e. every constituency has exactly the same swing), it is possible, knowing the swing in one seat, to calculate exactly the total number of seats a party would win. Applying the swing to the results of the last election it is possible to calculate how many constituencies would change hands. Nationwide be­ haviour will, of course, never be completely uniform. However, in most cases the regional or local deviations from uniformity the high swings and the low swings - tend to cancel each other out. In British and Australian elections over the last forty years, the results in terms of seats have been extraordinarily close to those that could have been predicted by assuming a nationwide uniform swing. This traditional concept of swing, however, as defined for two­ party systems, is not wholly appropriate in the multi-party situa­ tion in India. Nonetheless, the pre-eminence of the Congress party over the years does allow 'swing' to be redefined for the Indian situation. The simple Indian solution is to consider swing as the 'increase or decrease in the Congress percentage of the vote between one election and the next'. 14 On this basis swing can be used to explain the relation between seats and votes in India almost as neatly as the British definition has done in the United Kingdom. However, the multi-party Indian system has an additional com­ plication. The splitting of votes between opposition parties has been almost as important as the swing in influencing the final outcome of Indian elections. Since 1952 the Election Commission has recognized or registered more than 200 parties. The degree of opposition unity, or lack of it, has varied from election to election and has produced anomalous results. Table 3.13 shows there is no straightforward link between swings in votes and the margin of victory. 14 In the analysis of state elections the dominant or the most consistent party over the years may not be the Congress. In states like West Bengal for instance, it may be preferable to compute swing with reference of the CPI (M), or in recent years to use the Telugu Desam in Andhra Pradesh.

Dg t r l l lzeo by

Goggle

·--'-

Original from

- ___ jJt,JIVERSITY OF MICHIGA!!._

The Institutions 161

In every election except 1991, an increase in votes has been matched by an increase in seats and a decrease _by a decrease in seats. But as the last line in Table 3.13 shows, the relationship has been very variable. In 1991 it broke down completely. Congress lost votes and gained seats. The increased division of the opposi­ tion, discussed in the following pages, has allowed Congress to win extra seats over the years on a split non-Congress vote. For our analysis of elections over the years and for our inter­ pretation of opinion polls, we have developed a generalized meas­ ure of vote-splitting: the Index of Opposition Unity (IOU). This index is designed to isolate the split factor in Indian elections from the normal measure of change in party popularity: the swing factor. Using this index, changes in the margin of victory in any constituency can be broken down into two components: the 'swing' and the 'split'. Although this methodology can always be used in ex postf11t:to analysis, it can only be applied as a method of forecasting if the swing and split factors are reasonably homogeneous across the nation (or if their deviations can be reliably detected by opinion polls). How far swings and splits are homogeneous in India, with its heterogeneous electorate divided by caste, language and re­ ligion, is di�ed later in this chapter. The number of parties contesting an election, or the average number of candidates for each seat, provides a crude measure of the unity of the opposition. But if there are a number of minor parties or independent candidates in the field, each attracting a tiny fraction of the total vote, this can be a misleading indicator. An alternative way of judging the unity of the opposition is to use the sum of the percentages of the two leading parties as an indicator of how near the system is to a two-party situation. This offers a simple index of how close the two parties are to duopoliz­ ing voting support. But this measure fails on two counts: first, it is dependent on the percentage vote of the ruling party and, second, it says very little about the distribution of votes amongst the opposition parties. S'ome improvement on this measure of opposition unity can be achieved by extending it to cover the percentages of the top three or top four parties. Table 3.14 shows the figures for India's ten General Elections. But even this is not satisfactory. A measure of opposition unity,

D1g1t 1zeo by

Google

Orlgmal frcm

UNIVERSITY OF MICHIGAN

TABLE 3.13 Congress: Votes to Seats Relationship 1952- 1957- 1962- 1967- 1971- 1977- 1980- 1984- 1989- All Eke7 7 7 9 91 71 62 80 4

"' ""' ;;;

Q.

CJ

0



(v

Averogt

Eltaion Year

0

.a,..

Averogr

1962-89

tums

Change in Congress % vote Change in Congress scats Change in number of seats per 1% swing in votes

-3.1

2.8 7

-10

2.5

3.2

-3.9 -78 20.0

2.9 69 23.8

-9.2 -198

21.5

8.2 199 24.3

5.4 62 11.5

-8.6 -218

-3.0 35

24.5

n.a.

5.2 97 15.9

6.4 137 20.9

Average • average of absolute figures.

TABLE 3.14 Sum of Percentage Votes of Largest Parties

C

z

< m

;;o

!cc!o �.§:

o&

.,, =r :;: _3 n ::c C>

,,

z )>

Averogr

Eltaion Year Sumof% Votes of

Top 2 parties Top 3 parties T0p4earpes

1952

1957

S6 61 65

S8 67 73

1962

ss

63 69

1967

1971

1977

1980

59

54 61 67

76 80 83

62 71 77

so

64

1984

ss

62 68

1989 57 69 7S

1991 57

68

75

S8

66

72

162

The Jnstitutitms 163 if it is to be realistic and compatible with a measure of swing, should possess three main properties: 1. It should reflect the keenness of the competition provided by the opposition by measuring its cohesion. 2. It should be such that any change in the index is easy to relate to or compare with a change in votes as well as a change in the margin of victory. 3. It should be simple to use at every level - constituency, region, and nation. The following Index of Opposition Unity (IOU) goes some way to achieve these three objectives: IOU =

Vote of the largest oppositionparty 100 Sum of votes of all the opposition parties x

This implies that, in a situation where there were three opposi­ tion parties with votes of 30 per cent, 20 per cent and 10 per cent, the IOU would be: 30 30 X 100= ro°X 100=50 30+lO+ lO If there is only one opposition party (i.e. if the opposition is fully united), th e IOU is clearly 100. Thus the IOU can vary between zero and 100; the higher it is, the greater the unity of the opposition. Table 3.15 shows that the level of opposition unity has been low, averaging only 72 over the ten elections. It reached a high of 9 0 in 1977 when the opposition came together to fight the Con­ gress after the Emergency, but it then disintegrated to its lowest point of 65 in 1980. This 25-point slump in the IOU was a major reason for the Congress landslide victory in 1980. In 1989 there was a widely held view that the opposition was very united; in fact, the IOU indicates that opposition unity ac­ tually was only 3 points higher than in 1984; and the IOU of 77 in 1989 was far below the level reached in 1977. In 1989 three states showed major differences from their normal levels of IOU. Rajasthan (90) - a total seat adjustment raised the IOU to near 1977 levels; in Orissa (91)- the highest level of opposition unity since 1962 was recorded; and in Bihar (71) the IOU, although low by national standards, was the second highest ever achieved in that state.

Dlgltlzedby

Google

Original from

UNIVERSITY OF MICHIGAN

164 State and Politics in India

TABLE 3.15 Index of Opposition Unity 1962-1991 r--

ALL-INDIA Andhra Pradesh Assam Bihar Gujarat Haryana Himacha!Pradesh

.... r---

°' °' .... °' .... .... \C)

�ction Year

--r--r--°'

.... °' o °' °' °' .... g: .... �





;::,



71 90 65 74 77 66 72 74 86 64 90 90 74 77 41 65 66 51 90 71 73 48 58 86 55 63 71 65 63 86 88 93 82 84 92 90 87 50 76 91 57 65 87 49 68 83 60 62 93 77 82 78 80 77 Karnataka 76 74 88 93 59 86 63 61 75 88 85 89 95 94 88 89 89 90 Kerala Madhya Pradesh 56 62 82 92 62 73 77 77 73 Maharashtra 67 72 75 93 70 71 72 65 73 Orissa 92 75 52 90 57 79 91 71 76 70 65 57 69 92 77 71 61 Punjab Rajasthan 62 76 83 94 60 66 90 74 76 73 91 94 87 89 92 81 77 86 Tamil Nadu 52 51 61 91 50 57 64 45 59 Uttar Pradesh 80 74 58 89 86 92 90 76 81 West Bengal 67 76 83 98 79 89 81 69 80 Delhi Note: The computation ofIOU was carried out constituency by constituency and then aggregated to the st:1tc and the all-India level. 67 74 60 59 82

67 62

In 1991, the Congress gained 35 seats although its vote fell by 3 per cent. This was due, of course, to the drop in opposition unity from 77 to 66. The year I991 was also the only election in which the Congress won more seats even though there was a swing in votes against it. Opposition unity can be achieved either by parties coming together to fight under a single common symbol - as in the 1977 elections -or, as in 1989, by 'seat adjustments' in which different parties agree not to fight from the same seats. Historically Kerala, which has had almost the largest number of parties of any state, is a good example of how 'seat adjustments' can result in what is, in effect, a two-party situation. The average IOU in Kerala, at 90,

D1g1tizeo by

Google

Origlr.al from UNIVERSITY OF MICHIGAN

The Institutions 165 is the highest for any state in the country because all the major parties have always allied with one of the two main political fronts (either the Left Democratic Front or the United Democratic Front). Consequently, the contest in each constituency has almost always been between only two serious parties, each one belonging to one of the two opposing fronts. Over the years, the opposition to the Congress has tended to be far more disunited in the northern states than in the south. Most of the states with an IOU below the all-India average are in the north. In fact, since 1962 three of the largest northern states - Uttar Pradesh (85 seats, with an average IOU of 59); Bihar (54 seats, IOU 63); Madhya Pradesh (40 seats, IOU 73) - have had among the lowest levels of opposition unity in the country. Over the years, the low levels of opposition unity in these states helped to ensure clear Congress majorities in the Lok Sabha. In 1989, the biggest debacle for the Congress occurred in Rajasthan, where it lost every single seat (having won them all in 1984). The Congress was wiped out not only because of a large swing against it, but also because it fuced a highly united opposi­ tion: the BJP and the Janata Dal came to an agree1nent on fielding only one candidate in every seat in the state. In 1991, opposition unity collapsed and Congress moving only from 37 per cent to 44 per cent of the vote jumped from 1 to 13 seats in Rajasthan. A higher than normal level of opposition unity in several other states also contributed to overwhelming setbacks for the Congress: in Orissa the IOU increased from 79 in 1984to91 in 1989;in Gujarat the .I 989 IOU of 92 was the highest for any state in the country. But in many of the other northern states opposition unity talks broke down over how many seats each party should be allocated. Consequently, the level of IOU in these states (notably Uttar Pradesh, Bihar and Madhya Pradesh) was low; and the primary reason for the Congress defeat in these states was a massive swing against the party. As in most of the previous elections, the opposition was united in the southern states of Andhra Pradesh,Tamil Nadu and Kerala. But in Karnataka the Janata Dal government split and its members stood against each other. With the BJP also fighting separately, the result was a low IOU and a sweep for the Congress. Levels of opposition unity can vary widely not only between states but also from one election to the next. Among the important

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

166 State and Politics in India states and union territories, the highest IOU ever recorded w a s 98 in Delhi in 197 7 and the lowest was 41 in Assam in 1991. The IOU has risen or fallen by up to 40 points between two elections. These large variations in IOU have had a major impact on elec­ toral change in India. In addition to its purely arithmetic or mechanical impact on margins of victory, opposition unity also has an important political and psychological effect on election results. There is no doubt that the opposition loses seats because of the purely arithmetical impact of a fall in the IOU. But there is also an important additional effect on the perceptions of the voter. If the opposition is perceived by the voter to be disunited, a certain proportion of the electorate may either not vote at all, or vote instead for a more cohesive party. This secondary political effect of a low IOU would add t o the percentage of votes for the ruling party. Consequently, voter perception of a disunited opposition could lead to a rise in votes of the ruling party and record a swing in its favour. The combined effect of a drop in IOU, in terms of its arithmetic impact as well as its political or psychological impact on voting behaviour, has been a major factor in determining the outcome of Indian elec­ tions. The average voter's perception of a united opposition was, perhaps, most significant in the 1989 elections, even though i n arithmetic terms the IOU was not very high. A comparison of the last two elections highlights the signi­ ficance of the psychological and the arithmetic impact of op-, position unity. In 1989, it appeared as though the opposition parties were presenting a united front against the Congress. The unity talks before the elections went smoothly and the leadership of V.P. Singh was implicitly assumed. Apart from the diverse factions of the Lok Dal and the Janata party coming together, the Communist parties and the BJP were obviously keen on supporting a V.P. Singh-led opposition in order to defeat Rajiv Gandhi's Congress. Agreements on seat adjustments were reached in a number of states; in several others agreements seemed imminent. These agreements received wide publicity across the country's electorate. In several states, however, talks between the BJP and the Janata Dal broke down at the last moment before the elections. Despite the confused post-election situation, the overriding pre-election impression left with the voter was that the opposition was almost as united as it had

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN



The Institutions 167 been in 1977. This perception of unity perhaps added consid­ erably to the swing against the Congress. The non-Congress parties began the 1991 election campaign without any semblance of a united front against the Congress. The highly publicized and eventual collapse of the J anata Dal govern­ ment destroyed any remaining perception of unity among voters. In the end, the 1991 elections recorded an IOU of 66, the second lowest level in twenty years. It was only the second time that the IOU dropped from the previous election. Since the change in IOU is often more significant than its level, the 11 point decline be­ tween 1989 and 1991 had a major impact on the number of seats won by the Congress. The unity of the non-Congress parties was at its lowest in Uttar Pradesh which had the lowest ever IOU of 45. However, the Congress could not take advantage of this because of a huge swing away from the party. The Congress vote in Uttar Pradesh dropped to a dismal 18.3 per cent, by far its lowest popular vote; caused by a negative swing of 13 .5 per cent from the already low level reached in 1989. In fact, with the Congress no longer the dominant, or even a significant party in Uttar Pradesh (42 of its candidates lost their deposits in 1991) it is perhaps time to select new parties to go into the calculation of IOU in the state. With the BJP emerging as the dominant party in Uttar Pradesh (al­ though it won only 32.8 per cent of the vote it was clearly the largest party) the IOU for Uttar Pradesh should perhaps be computed with reference to the parties opposing the BJP. The IOU of the non-BJP parties for Uttar Pradesh was a low 32 in 1991 and explains why the BJP won 51 out of 81 seats (or 61 per cent) and 32.8 per cent of the vote. For years the Congress has benefited from a divided opposition - now in Uttar Pradesh it is the BJP's tum. In fact, in many other states the IOU should no longer be computed for non-Congress parties. Wherever the Congress is no longer the dominant party the IOU should be computed for the parties opposing the dominant party. The central focus of electoral analysis is the percentage margin of victory. Election studies do not look merely at who won or lost but also at the size of a candidate's majority and the causes for any change in his percentage margin of victory compared with the previous election. The fact that a particular candidate

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN



168 State and Politics in India

won in two consecutive elections may be less significant than the fact that his margin of victory was reduced from 25 per cent to 5 per cent. The electoral analyst's main concern must be to explain the factors behind this drop of 20 percentage points in his majority. In a two-party system, only a change in popularity can cause the margin to change. In a multi-party system, the situation is more complex. Margins change not only because of a swing in votes but also because of a change in the degree of unity between opposition parties. A simple formula can be devised to explain this:IS Swing factor (change in popularity)

+

Split factor = Change in Margin (change in opposition unity)

In Indian elections the importance of swings in popularity compared with changes in levels of opposition unity has varied from one election to another. Decomposing the change in margin shows that over all the eight elections (i.e. from 1962 to 1991), changes in opposition unity - the split factor - has contributed as much as one-third to changes in margins of victory (see Table 3 .16). The remaining two-thirds were due to swings in votes. The first strong impact of the split factor was in the 1980 election when the opposition defeat could be attributed as much to the drop in opposition unity between 1977 and 1980 as to the swing back in favour of the Congress. IS (M,-M,_1)=(X,-X,_1)(1 + I , _1)+(1,_1 -1,)(100-X,) Change in margin • the swing factor + the split factor X • Percencige votes for the ruling party. M • Margin of victory. I "' Index of opposition unity (expressed here as a proportion and not as a percentage, i.e. 0 < I < I). Subscript rand t-1 indicate the years of the two elections for which the change in margin is being decomposed. We call the first expression on the right hand side the swing factor and the second one the split factor. The overall 'split factor' is, strictly speaking, sensitive to f]le swing in votes and there is a n important interaction between the 'swing factor' and the 'split factor'. How­ ever, we find that the simple decomposition given here, despite the abstraction from the interaction terms, is a useful one for analytical purposes.

Origlr.al from UNIVERSITY OF MICHIGAN

-.I

The Institutions 169

TABLE 3.16 Congress Victory Margins: Reasons for Change, Impact of Swing and Split on Congress Margins

1962-7 1967-71 1971-7 1977-80 1980-4 1984-9 1989-91

Change in Congress Margin over Largest Other Pa� ( %2

• Average •

Nott:

Change in Margin Caused by: Swing Factor Split F114.tor

(%)

(%)

-7.5 16.9 -38.5 29.6 4.6 -21.6 3.5

-8.0 · 18.4 -25.0 15.1 10.8 -19.7 -3.6

0.5 -1.5 -13.5 14.5 -6.2 -1.9 7.1

17.5

14.4

6.5

Average of absolute figures. A negative swing factor implies a swing away from Congress, a nega­ tive split factor implies an improvement in opposition unity.

Contrary to popular belief, the Janata party victory in the I 977 election was much more due to a huge swing away from the Congress than to the sudden unity of the opposition. In the 1984 elections, the large swing of 5.4 per cent in favour of the Congress caused margins of victory to go up by 10.8 per cent, but this was counteracted by an improvement in opposition unity which re­ duced the margin by 6.2 per cent. The net of these two opposing trends yielded a 4.6 per cent net improvement in the average Congress margin of victory. In the 1989 elections, the voter's perception that the opposition was united was important. It gave the opposition credibility as a viable alternative to the Congress. As the impression spread that the opposition could form a government, the notion that a vote for them would only be a wasted vote was reduced. This perception of opposition unity is likely to have contributed to the large swing away from the Congress. Consequently, the psychological or polit­ ical impact of opposition unity was more important than the pure arithmetic impact of the increase in IOU in the 1989 elections. Table 3.16 shows that the fall in the Congress margin of victory of -21.6 per cent between 1984 and 1989, was overwhelmingly

Digi tized by

Google

Original frcm

UNIVERSITY OF MICHIGAN

170 State and Politics in India

because of the swing factor (which contributed as much as 19.7 per cent to the drop in margin), while the greater unity of the opposition was less significant (contributing only 1.9 per ceµt to the decline in margin). In the 1991 elections the Congress vote fell to its second lowest point ever, dropping to 36.5 per cent. If opposition unity levels had not changed, this negative swing of 3 per cent would have shattered the Congress party: it would have ended up with around 125 seats and lost its position as the largest party. However, despite this drop in popularity between 1989 and 1991, the Congress won an extra 35 seats. This is explained by a large gain the Congress made from a very disunited opposition (see Table 3.16). Although the impact of swings and splits have varied over time, a broad rule of thumb applies: the effect of a 1 percentage point swing is, on average, equivalent to a 3 percentage point change in the IOU (Table 3.17). In other words, a swing of 1 per cent in favour of the Congress could be countered by a 3 percentage point improvement in opposition unity. TABLE 3.17 Comparison of Swing and Split Factors

1962-7 1967-71 1971-7 1977-80 1980-4 1984-9 1989-91

-Average

Change in Margin Caused by 1%Swing 1%Change in % Change in IOU IOU to Offset 1 % Swing 1.77 1.59 1.69 1.99 1.58 1.71 1.78

1.26 0.32 0.65 0.55 0.47 0.60 0.61

1.41 5.05 2.58 3.45 3.36 2.85 2.92

1.73

0.64

3.23

Table 3.13 shows that in recent years a I per cent swing in votes causes between 20 and 25 seats to change hands. The 3 per cent swing away from the Congress in 1991 would, therefore, have meant about 60 to 70 fewer seats for the Congress. On the other hand, th.e IQ_U dropped 11 percentage points between 1989 and 1991. Table 3.16 shows that this 11 point drop in IOU is roughly equivalent to a 4 per cent swing in favour of Congress.

Dig1t1zeo by

Google

Origi�al rrom

UNIVERSITY OF MICHIGAN

The Institutions 171

Consequently, the impact of the drop in IOU was to add about 80 to 100 seats to the Congress. It was the net effect, therefore, of the 3 per cent negative swing causing a loss of 60 to 70 seats, and the 11 point drop in IOU causing an addition of 80 to 100 seats, that in the end led to Congress gaining 35 seats in the last elections. Although the swing and change in IOU 'by definition' explain changes in the margin of victory, neither of these measures should be interpreted mechanically. The swing is merely a final index which measures the net impact of a multitude of political issues, social and caste trends and underlying economic realities. The IOU too is only a summary measure of the alliances that political parties form and the electorate's perception of these alliances, real or imagined. The simplicity of these indices should not hide the complexities of the relationships that they measure. It would be wrong, for instance, to oversimplify the IOU and say that 'a divided non-Congress vote always helps the Congress'. This may not be true in some circumstances. For example if the opposition to the Congress is the BJP and the Janata Dal, both being strong parties, the IOU may be low. But instead of the non-Congress voter support being divided, the Janata _Dal and Congress may be competing for the same support base. In other words, in this situation the n o n -B JP vote would be split. A low IOU would then help the BJP rather than the Congress. Of course, if the Janata Dal is eating into the Congress vote, this would be reflected in a lower percentage vote for the Congress - i.e. a larger swing away from the Congress. It is, therefore, only true to say that 'a divided non-Congress vote always helps the Con­ gress, for a given percentage Congress vote'. Moreover, the 'swing-IOU' formula is further complicated by voter perceptions creating a relationship between the IOU and the swing. In the current political situation it may be more sensible to use the swing and IOU in a more disaggregated manner, at a state level rather than an all-India level. For example in Rajasthan, where the BJP is the dominant party, an alternative analysis would be to measure swing in terms of changes in the BJP vote and compute IOU in terms of the non-BJP vote. In this way a state­ by-state analysis may provide more accurate forecasts. If the electorate behaved uniformly across the country, it would be easy to predict elections. Voting trends in one constituency could then be projected to the entire nation. In fact, no country

D1g1tizeo by

Google

Origlr.al from UNIVERSITY OF MICHIGAN

172 State and Politics in India

behaves uniformly, but the swing in some countries is more uni­ form than in others. Britain offers a notable example of uniform swing, with a standard deviation of only 2 per cent. In contrast, the swings in elections to the United States House of Repre­ sentatives have shown a standard deviation of around 6 per cent. In India, while there has been appreciable variation in the swing across different states, the swings in votes have tended to be more uniform than is generally recognized. Even at the all-India level, in most elections, the great majority of the country has moved in the same direction, though the magnitude of the swing in different regions varied. Voting patterns in state elections are often closely related to those in national contests. A good or a bad performance by a state government of one party can have a massive impact on that party's Lok Sabha vote in the state. In the Andhra Pradesh state election of 1983, the Telugu Desam breakthrough was followed by a statewide anti-Congress sweep (against the national tide) in the 1984 Lok Sabha elections. But in the 1989 Lok Sabha elec­ tions, the discrediting of the state Telugu Desam government was matched by an overwhelming swing to Congress (also against the national tide). In 1991 when Congress was winning nationally, there was something of a return to Telugu Desam. The pattern, however, is not consistent and there is certainly no exact fit between state and national voting. While much more research needs to be done in this important area, it is clear that swings tend to be increasingly uniform as the focus shifts from India as a whole to the state level or down to homogeneous zones within states. In any case, the swings at the state level tend to be uniform enough to make reasonably accurate forecasts of seats. Consequently, these can be made when the swing in only a few constituencies is known, either from opinion polls or from the first reports once the counting begins. One reason why the all-India swing has become less uniform since the early 1980s is the growth of strong regional parties. In 1962 regional parties accounted for 6.3 per cent of the total opposition vote, but by 1984 this had risen to 20.8 per cent of the vote. In 1989 this dipped again to l 0.4 per cent.16 Of the Elections in Assam were not held in 1989 and partially held in 1980. If elecrio.ns had been held, the vote of the regional parties would have gone up further. 16

D1g1t 1zeo by

Google

Orlgmal frcm

UNIVERSITY OF MICHIGAN

The Institutions 173 opposition MPs elected in 1984, as many as 57 per cent were from regional parties. Regional factors have been increasingly manifest i n Lok Sabha contests and have made the variation in swing between states more and more significant. In the 1989 elections, however, the sharp decline in the popularity of Telugu Desam in Andhra Pradesh and the dominance of the Congress in the southern states resulted in a significant drop in the repre­ sentation of regional parties. In Punjab, however, the Akali Dal (Mann) virtually eclipsed all the other factions of the Akali Dal; it won 6 out of the 8 seats that it contested. Its victory resulted in a militant regional representation in the Lok Sabha. At the same time the violent form of regionalism in Assam once again prevented elections being held in that state. The 1991 elections and the events after it indicate that region­ alism may be increasing once again. Most poll and by-election results indicate that the Telugu Desam's popularity is rising (despite the split into the NTR and the Chandrababu Naidu groups) and so is OM.K's in Tamil Nadu. And while the violence in Punjab has abated, in Kashmir it has risen sharply. There are fashions in electoral interpretations. Disaster has regularly been predicted for Inclian democracy. In the mid 1970s it was said to be threatened by the autocracy of Mrs Gandhi. In the early 1980s it seemed to be the rise of regional and separatist parties as the takeover of Andhra Pradesh by Telugu Desam, coinciding with publicity for violent breakaway movements notably in Punjab, Kashmir and Assam, led to fears about the break-up of India. Anxieties about autocracy and about threats to Indian unity will persist. . There will be both ebb and flow in the intensity of these womes. Today it is the rapid growth of the BJP that is producing conflicting views ranging from fears about the rise of religious fundamentalism to hopes for a change to a clean, efficient ad­ ministration. However, the hope that the BJP would provin and the river's eventual merging into 'the sea of peace and into the great unity' evokes the Hindu cultural notion of life's unity with the great soul. 0 The song 'Bohag is not just a season' (composition by Hazarika 1980) constructs Assamese nationality as a collectivity - with a memory and a will. Bohag is the first month of the Assamese calender. It is the time of the Assamese spring and new year festival Bihu. The song extends the Bihu traditions to the life of the people as a whole and imbues Bohag Bihu with the significance of a national day when the nation takes stock of its past and its future. This notion is similar to the idea of a national birthday, such as the Indian Independence Day and Republic Day or the American Fourth of July. But what is interesting about the notion of Bihu as a national day is that its origins are in 'time immemorial' and that unlike national birthdays Bihu is celebrated in the social space that is independent from and potentially in conflict with, the state. Bohag is not just a season or a month; for the Assamese it is a crucial moment in the nation's life-line - it is when the collective 12 Benedict Anderson, Im11gmed Cummrmitits, p. 19. 13 Cassette tape. This song is SWtg but not co1nposed by Hazarika. However, his songs are usually his own compositions. For a complete collection of Haz.'lrika's songs until 1980 see Dilip Kun1ar Dutta, Bhupm Hazarilu,r Gttt Aru ]trotm &th (lbe Songs and Life of Bhupen Hazarika) (Calcutta: Srib­ humi-Publishing Company, 1984).

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

The Political Procw: Resistance 505

life gathers its strength and courage. Bohag is not just about the celebration of the Bihu festival, nor is Bohag about the flowers that bloom at night. It is Bohag that brings processions that transcend caste and creed and it is Bohag that destroys difference. Drawing on the rituals of Bihu the song makes Bihu a time for national renewal: 'In Bohag the nation takes its ritual bath, and gets rid of its old clothing. And with &hag comes the pre-monsoon storm that inspires us in our battles to get rid of the shackles of sorrow.'14 The idea of a nation reviewing its past and its plans for future is a powerfully constitutive one. If a nation is an act of will, then such texts may be what constitute a nation. Hazarika's songs register the hopes and disappoinnnents of the Assamese. For instance a song (composed by Hazarika in 1954) celebrates the founding of the ftrst university in the state in 1954 - an institution that evoked much hope about the future. The song is a good example of the promises of modernity that accom­ panied the early years of India's Independence from British rule. Breaking the barriers of darkness, there flows a bright ray of light in Pragjyotishpur (the old name of the city of Guwahati) that will brighten up the banks of Luit (the river Brahmaputra). A festival of a hundred lights of knowledge will brighten up the banks of Luit. The old manuscripts, written on Stmehi barks, will ftnd voice, the sound of the traditional flute, the Siphung, will give new hopes and the old royal palace, the Rangghar (the pleasure palace of the Ahom kings) will reopen its doors. Our society will embrace humanity and science will bring tidal waves (of progress). is Unfortunately universities in India and the 'Third World' rare­ ly fulfil such expectations. Except for token gestures, research agendas and teaching priorities shaped by a global and pan-Indian academic culture have little room for such 'provincial' dreams. Titrough much of the 1960s, a weakness of will was an impor­ tant theme in Assamese self-perception of the sources of their problems. If nineteenth century nationalists blamed themselves for their economic underdevelopment, the post-colonial genera­ tion began to explain Assam's 'backwardness' by their perceived powerlessness. Arecurrent theme in Assamese discussions of their conditions is the neglect of their far-away state by policy-makers 14 DilipKwnar Dutta, Bbupm H11Zllrilc11r Gett A"' Jeevan Rath, pp.

IS Ibid., pp. 306-7.

Dig1t1zeo by

Google

Origi�al rrom

310-11.

UNIVERSITY OF MICHIGAN

$06 State and Politics in India in Delhi. From 1979 to 1985 Assamese subnationalism came out to the streets with a vengeance to protest against illegal immigra­ acto policy of enfranchisement of non-citizens. tion and a def A song by Hazarika composed in 1968 anticipates the turmoil of the late 1970s and 1980s. The song establishes a continuity with a poem by a late-nineteenth and early-twentieth century literary figure Lakkhinath Bezbarua: 'We Assamese are not [culturally] poor. In what sense are we poor? W� had everything and we have everything, but we don't know it and we don't take stock of it.' The notion of taking stock of what a nation has or fTlJJ1U - culture as property as it were - perhaps indicates nationalism's connec­ tion with modernity and capitalism. Hazarika's song begins by referring to the words in Bezbarua's poem, known to many As­ samese: 'It won't do to take solace in the words that we Assamese are not poor; today's Assamese must know themselves [become self-aware as a people], or else Assam will be doomed. Today's Assamese must save themselves or else they will become destitutes in their own land.' This song revives the sayings of Assamese historical and cultural heroes. The song stresses Assam's multi­ culturalism and talks about 'those who have come from afar and have called the land of the Luit mother are the neo-Assamese'. Here is the anguish of a cosmopolitan cultural figure who cannot be unconcerned with Assam's fate - even if this may be inter­ preted as provincialism - and yet shares the values of pan-Indian nationalism and internationalism: 'Unless you wipe the tears of your mother eyes, your love for the world will be wasted. If you become a crippled limb in the world's body, the world will not love you for that.' While the 1968 version of the song was a reminder that the calls to action by successive Assamese heroes were unanswered, a 1980 version of the same song is a celebration of what was then happening in the streets of Assam. Instead of the rebuke for non-action of a decade ago, there is now a new-found pride in the new generation of Assamese: 'Toda'6 we have martyrs who can say that if Assam dies, we too will die.' 6 By constructing the sacrifices of the youth of the 1980s as a response to calls by an earlier generation of Assamese cultural heroes, the Assamese collectivity is constructed panachronically as well. The 1979�5 political turmoil in Assam centred on the question 16 lbid., pp. 345-7, 392.

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

Tht Political Procesr: Resistance 507

of illegal immigration from Bangladesh that was allegedly turning the Assamese into a minority in Assam. The year 1983 was particularly violent. An election that was held against the wishes of the leadership of the Assam movement became a test of will between the leaders of the movement and the Indian state. The leaders of the movement called for a boycott of the election and since participation in the election divided the population of the state in· the middle - mainly, but not exclusively along the indigeneous-migrant divide - it led to enormous violence. A song about the violence of the 1983 elections (composition by Hazarika 1984) seeks to build a collective Assamese connection to a ' martyr' of 1983 by evoking the ties of family and of a village community, the martyr becomes every parent's son, every sibling's little brother and every person's friend. The song '1983 - the year of the devastating fue - the year of the election' is a ballad of a little brother who was killed in the violence of the election. 'My little brother disappeared that year; do you have _any news of him?' The song praises his accomplishments: 'He wanted to build his country and to secure a happy future for those who live in Assam. He did not want to become a stranger in his own land' - the latter being a reference to the Assamese fear of minoritization. There is a evocation of a family grieving the death of a young son: 'Mother does not eat her food, the village youth all wait for you each day, your sister lights an earthen lamp in your room every day and poor old dad goes to the railway station every day hoping to find you in one of the trains.' The song concludes with a determination never to let such violence occur again and, reflecting the Assamese interpretation of the causes of that violence - the state's attempt to hold elections against the wishes of Assamese civil society- it warns that those who seek to divide the Assamese will invite the wrath of the Gods and meet their end.17 Benedict Anderson draws attention to the cenotaphs and tombs of unknown soldiers as among the most 'arresting emblems of the modern culture of nationalism'. 'Void as these tombs are of identi­ fiable mortal remains or immortal souls, they are nonetheless saturated with ghostlynationa/imaginings.'18 Martyrdom has been 17 Cassette Tape. 18 Benedict Anderson, Im11gintd Com11m11itiu, p .

Digiti zed by

Google

17.

Ori ginal from

UNIVERSITY OF MICHIGAN

508 St11te and Politia in India

an important theme in the poetics of Assamese nationalism. A student killed by the police in the campaign for Assamese as the official language in 1960 is referred to as 'the first martyr of the mother language'. There are many recent songs by Hazarika that are memorials to Assamese martyrs - victims of the violence o f the recent episodes of political turmoil. By the late 1980s Assamese nationalism took a militant turn with the rise of the United Liberation Front of Assam. ULFA was organized as a liberation army with modern weapons and trained cadres that would liberate Assam. A song by Hazarika of that period (not Hazarilca's composition; the composer's name is not indicated in the cassette tape) has a martial spirit; it applauds bravery, sacrifice and heroism: 'I salute mother Assam and I dress up to go to war. I salute the river Luit and give puja to Goddess Kmnaksbya; with your blessings and an oath I am off to war.' The Kmnaksbya temple in Guwahati is Assam's most important Hindu temple and an important place in Hinduism's sacred geography. Hazarika's song echoes the Assamese sense of how things came to this; persuasion had failed and there are few alternatives but battle to avenge past wrongs: 'It is no time to teach history lessons, it is no time to take it easy: the enemy taunts us at our gates, leave aside your daily tasks, get ready for war and be prepared to lay down your lives.'19 The ideology of ULFA emphasizes the unity of the indigenous peoples of the area - both the Assamese of Assam and those who live in the areas that have been separated out. The process· of fragmentation of the territory of Assam in the 1960s and 1970s is seen as a reflection of Assam's powerlessness. The term 'united' in the name United Liberation Front of Assam reflects this em­ phasis. One of Hazarika's songs from this period dwells on the unity theme; the seven states of north-eastern India become seven sisters born of the same mother. The undivided territory of Assam is the mother and the song (again not Hazarika's composition; the composer is not indicated in the cassette tape) tells the story of the fragmentation in terms of seven sisters being 'married away'. 'Mother, we are seven sisters who once played together in the sunny sands of the river Luit.' Here is how the so�g depicts three of the new states: 'Meghalaya went her own way as soon as she 19 Cassette Tape.

Digiti zed by

Google

Ongmal from

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 509 was old

enough, Arunachal too separated.and Miwram appeared in Assam's gateway as a groom to many another daughter.' The portrait of Tripura is interesting: 'I have built my home in the frontier of Bengal to keep an eye on the enemy's movements.... Mother, please don't leave me out.' Of all the north-eastern states Tripura, which borders on Bangladesh, has changed its demo­ graphic picture the most as a result of in1migration from East Bengal- the indigenous Tripuris are a now a small minority and hence the motif of recognition and identity. The song ends with a determination to keep the unity of the Assamese with other smaller nationalities that are left in present-day Assam - 'the Karbis and the Mising brothers and sisters are our dear ones.' Echoing a theme in the ideology ofULFA, Hazarika's song cel­ ebrates the reunion of the seven sisters in a new 'emotional unity' that is more powerful than state-drawn modem boundaries. The song ends with a warning against those - the state seems to be the obvious referent - who attempt to break this great unity.20 The images in Hazarika's songs - for example the obligations to 'mother Assam', the stock-taking about the Assamese collective past and the determination to act on its historically constituted collective will, the obligations to honour the memory of martyrs - provide important clues to the 'imaginative geography and history'21 that animate Assamese subnationalism.

The State, Civil Society and the Politics of Subnationalism Assamese subnationalist politics, I have said, originates in and is sustained by civil society and not political society-to use Antonio Gramsci's distinction. It is not accidental that organizations that have led subnationalist protests in Assam often perceive themsel­ ves as peing 'non-political'. The point seems to be that they see their concerns to be different from and of a higher order than those of 'politicians'. In this view, the concerns of nationality are obviously of a higher order than the imperatives of electoral politics. As we will see organizations and individuals that play a key role in subnationalist protest typically belong to the cultural 20 Cassette "Tape.

21 This pbl'iise_is from Edward Said, Orienta/ism, p. 55.

Digi tized by

Google

Original frcm

UNIVERSITY OF MICHIGAN

510 St11te arul Politia in lndia realm; they see themselves as reluctant entrants to the political realm. The notion of a higher-order concern for the life o f the nationality has the capacity of incorporating all Assamese irrespec­ tive of their lower-order engagements as it were, into subna­ tionalist projects - membership, even leadership positions, i n a political party or in the civil service does not disengage an As­ samese from the concerns of the collectivity. Jean-Fran�is Bayart in applying the concept of civil society to Africa uses it in two different senses. Following Robert Fossaert he initially defines civil society not as a set of institutions but as social space. He defines it provisionally as 'society in its relation with the state ... i n so far as it is in confrontation with the state' or the process by which society seeks to 'breach' and counteract the 'simultaneous totalization unleashed by the state'.22 But fo r him there are also situations when civil society becomes the col­ lective will of a people - say as in Iran during the revolution or Poland at the height of the solidarity movement - when it is meaningful to speak of entire civil societies being in opposition to states. It is possible to speak of a civil society in the second sense when societies have the capacity to bridge what he calls certain epistemic gulfs across cultural, religious and linguistic rifts and 'to confront the _state with appropriate conceptual weapons'. It is civil society in the second sense that he finds absent in African societies: "I)te concept of civil society seems best to explain - by its absence - the continuing existence of African autocracy.'23 I will use the term social space in the first sense 6f the term and reserve the term civil society for the second sense.However, since what separates social space from civil society is organiza­ tional capacity, civil society cannot be an all or nothing pheno­ menon. It is perhaps best to speak of civil society in India i n the plural. That may be the reason why India's subnationalist dissents - each of them located in particular civil societies - have never posed a unified challenge to the Indian state. At the same time it makes sense to speak of stand-offs between the state and, say blocs of civil society - Assamese, Kashmiri or Sikh; not unlilce those in Iran and Poland that leads Bayart to speak of them as 22

Jean-Fnn�is Bayart, 'African Civil Society', in Pattick Chabal (ed.}, Politu,11 Dumi1uttion m Afriaz: Reflettions on the Limitt ofPuwer (Cambrid ge: Cambridge University Press, 1986), pp. 111-12. 23 Ibid., pp. 117-19.

Dig1t1zeo by

Google

Origi�al rrom

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 511

ilJustrations of civil society in the organized sense. There are, of course, also political mo1nents in India when it may be possible to speak of a pan-Indian civil society - at least of an incipient one -say when a Gandhi launches a civil disobedience movement or a J.P. Narayan launches a pan-Indian movement against cor­ ruption.

Social Space: Some Com parative Considerations How does a social space become available for the reproduction of subnational imaginings and political projects? Such a space is W1captured or incompletely captured by the project of the modem state - the creation of a national political community as the framework that defines the limits of legitimate political discourse. From the Assam case it would seem that in India what would conventionally be called modernization - urbanization, expan­ sion of communications, literacy, newspapers and magazines, edu­ cational institutions or the electronic revolution and the expansion of the audio cassette and more recently the video cassette - have brought about a social space that has proven to be unexpectedly user-friendly to the reproduction of subnationalism. It has linked vilJages with towns and cities; and the cultural and literary elites and the newly educated youth with the Assamese peasantry and the urban middle and working classes. In Assam's fast growing urban space there is evidenced not only what modernization theories would have predicted, but also a mode of urban living that reproduces and intensifies ties of family and kinship - both imagined and real. Among the specificities of this mode of ur­ banization, for instance, is the relative weakness of the bourgeois idea of a home. The Indian middle class home is perhaps closer to the medieval European home, which as Witold Rybczynski says, was 'a public, not a private place'. The houses were full of people and the 'crush and hubbub of life', he says, was partly accounted for by the fact that 'they served as �ublic meeting places for entertaining and transacting business'. 4 The home is part of the social space that sustains the Assamese collective imagination and the projects of Assamese civil society. I had a glimps� of this in 24 Witold Rybczynski, Hume: A Short Hinory ofan ltk11 (New York: Viking, I986), pp. 26-8.

D1g1tizeo by

Google

--�----- ...... - .

Origlr.al from UNIVERSITY OF MICHIGAN �

512 St11te and Politics in India January 1991. My brother, a medical doctor who treated patients that were thought to be ULFA militants, was arrested by the Indian army for his alleged ties with ULFA, and our home in Guwahati was soon full of people - relatives, neighbours, friends and well-wishers - who came to inquire and express sympathy and solidarity. In that social space, the rupture between state and civil society in Assam was rather apparent. There was other evidence of this rupture during that period. The Governor and senior civil and military officers in charge of Assam - all of them non-Assamese - for instance were sensitive to Assamese sensibilities and gave orders on how to respect the rituals of Assamese Magh Bihu festivities in January. Yet Magh Bihu in Assam that year was not a private event - it was full of public significance. The All Assam Students Union (AASU) an­ nounced that that year's Magh Bihu called for a more sombre celebration because the army operations against ULFA can be no occasion for celebration. It did not particularly serve the interest of the state to have a gloomy Magh Bihu echo the Assamese mood. In order to understand this social space it may be useful to contrast it with the organization of space under advanced capit­ alism. For analytical purposes, at the risk of exaggeration, two distinctions can be made. First, the organization of life into the private - the domain of domestic bliss - and the public as the domain of the political seem to be at fundamental odds with the ethos of middle class life in Assam. This bourgeois ordering, of course, is under some threat in advanced capitalist countries too, say by the feminist agenda of making 'the personal political'. Second, compared to conditions in Assam, the space designated as public under advanced capitalism would seem to be rather restricted. If the bourgeois home is about the private - love, affection and family - schools and colleges are about education and a preparation for the bourgeois life - and not about politics - and sanitized shopping malls are about private consumption not about a whole range of public activities that Indian bazaars are known for - the space for the public in contrast with Assam seems woefully limited. That ethnic parades or political demon­ strations in the US often take place in "carefully designated public space that is authorized for such a purpose on a particular day illustrates the restricted nature of public space under advanced capitalism. This contrasts sharply with the use of public space in

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 513

India. The colonial state tried to impose a little more bourgeois ordering of public space in India. The post-colonial state too makes some attempts at order, but it seems too weak to achieve such order in the absence of help from capital. Capitalist modern­ ization of a more destructive kind that eludes the 'Third World' might have put more resources in the hands of the state to achieve such an ordering of public space. Perhaps, if an eight-hour day gets further universalized - as the ideologues of modernization would like - that too might achieve more privatization of the Indian home and further restrictions on the home as public space.

Organizational Capacity and Assamese Civil Society While the organization of social space under peripheral capitalism may be user-friendly to India's subnationalist projects, one still has to explain how Assamese civil society has come to acquire its remarkable organizational capacity. As I said before, civil society in Bayart's second sense is a function of organization; a collective imagination has to come together with organizational capacity. Organization involves consent as well as coercion. Assamese civil society clearly has its dissenters. In the 1979-85 period, the As­ samese ·who were unfriendly to the subnationalist project faced social bo ycotts. Coercion played a role in ensuring support for that political project of Assamese civil society. For instance, As­ samese government officials managed to reconcile obligations to Assamese civil society with the demands of their jobs by temporari­ ly appropriating the bourgeois idea of individual choice - senior state government officials (most of whom are men) had their wives and children join the processions and demonstrations and avoided the costs of reneging on their higher order obligations to civil society. When the state increased the costs of complicity with the project of Assan1ese civil society, it became harder to balance the competing demands. But the balance was usually tipped on the side of civil society. Nonetheless, considering Assam's diverse population there has always been significant dissent from As­ samese subnationalist projects in Assam. But despite dissent, As­ samese civil society has the ideological and organizational capacity of defining and pursuing its political agendas. The year 1983 saw the violent consequences of a test of will between Assamese civil society and the Indian state.

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

514 St11te tlnd Politia in lndifl

Two key organizations that play a central role in the constitution of Assamese civil society are: the Asom Sahitya Sabha (The Assam Literary Society) and the All Assam Students Unibn. That both organizations call themselves 'non-political' is significant in order to understand their location in civil society. The Asom Sahitya Sabha with its motto 'My mother language - my eternal love' had its ftrst session in 1917. The Sabha meets every year and there are culture, music, science and history sessions. The president of the Sabha in 1967 referred to the meetings of the Assam Sahitya Sabha as Assam's Jlltiya Yag,u, ('the great national sacrifice') and thanked members for honour­ ing him with the 'most respected chair of the nation'.25 The Sabha has consistently sought to promote the Assamese language in Assam - the fact that it is an issue at all is a reflection of the continued contested nature of the cultural defmition of the state as a result of demographic change. Writing about the role that the Sabha played in 1959-60 in the campaign to recognize As­ samese as the official language of the state, Maheswar Neog who was a major figur e in that organization - wrote, 'These events have raised the institution in the general esteem and marks the start of another phase, when the Sabha began attracting crowds like the National Congress sessions and other political festivals. '26 The general secretary of the Sabha in 1971 responded to the criticism that the Asom Sahitya Sabha meetin gs instead of being gatherings of writers and critics had become like carnivals - 'national festivals' where thousands participate.17 The Sabha has an agenda of aggressive cultural nationalism. As early as 1950, it demanded that Assainese be made the official language of the state and that barring those in the Khasi andJaintia Hills, Miro Hills and Garo Hills, all schools should switch to Assamese. According to Udayon Misra, 'the Sabha's rigid stand 2S Nakul Chandra Bhuya n, Presidential Speech, Asom Sahitya Sabha, 34th Session, Dibrug:irh, 1967, in Hari Prasad Neog (ed.), Asam Sahity11 Sabh11 BarshiJ:i (Asom Sahitya Sabha Annual), Jorhat (Assam: Asom Sahitya Sabha, n.d.), pp. 22-3. 26 Cited in Udayon Misra, 'Asom Sahitya Sabha: Retreat from Populist Politics', in Misra, North-East India: Q11Ut for /dmtity (Guwahati: Omsons Publications, 1988), pp. 123-4. 27 Jotin Goswa1ni (ed.}, Asam Sabitya Sabha Barrhiki (Asom Sahitya Sabha Annual}, Dhing, 37th Session, Jorhat (Assam: Asom Sahitya Sabha, 1971), p. 103.

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

The Political Procesr: Resistance 515

on the question of Assamese being recognized as the sole official language of the state', contributed significantly to the alienation of Assam's smaller nationalities and their demand for separation. He believes that 'a more imaginative language policy of the Sabha could perhaps have slowed down.the alienation of the hill tribes from the Assamese people'.28 I have examined the proceedings of seven annual meetings of the Sabha from 1964 to 1972. 29 At every session there were resolutions demanding the implementation of Assamese as the official language of Assam and the language of education. As I had said earlier, the Sabha was the major organization that mobilized public opinion for the adoption of the Official Language Act in 1960. During 1964 to 1972, the Sabha's resolutions complained of the tardiness in the implementation of the act. A 1968 resolution dealt with the im­ plementation of Assamese as the language of the High Court. Its concern ranged from the inadequate supply of Assamese language typewriters, the absence of Assamese signs in government offices to the need for Assamese language training for non-Assamese officials. Other resolutions sought the adoption of Assamese as the medium of education at various levels. The Sabha was concerned about the status of Assamese in the two universities, its use as the language for doctoral research in order that the language 'develops'. It was concerned about the availability of Assamese language texts, the training in Assamese of non-Assamese teachers and the in­ clusion of Assamese in the curriculum of non-Assamese educational institutions in the state. One of its resolutions suggested the intro­ duction of Assamese language lessons through state-owned radio stations. One resolution warned the state government of statewide protest unless it showed its seriousness about the use of Assamese. Other resolutions of the meetings include condolences at the pass­ ing away of prominent Assamese personalities, plans for public celebration of birth anniversaries of major figures of Assamese cultural nationalism. In 1971 'the Sabha had 169 branches and six affiliates - some of them scattered in the most remote countryside and towns.30 28 Udayon

Misra, 'Asom,Sahitya Sabha', p. 122. 29 Resolutions published in Asom Snhityn Sabha. Bnrrhiki (Asom Sahitya Sabha Annual), Annual Sessions, 1964, 1967, 1969, 1970, 1971, 1972 and 1973. 30 Jotin GosWl'lmi (ed.), Asom Sabityn Sabha Ban·hiki (Asom Sahitya Sabha Annual), Dhing, 37th Session, pp. 140--6.

Digi tized by

Google

Original frcm

UNIVERSITY OF MICHIGAN

516 Statt and Politics in India The power and influence of the Sabha has been quite apparent in Assam's politics. Its annual meetings are attended by senior min­ isters of Assam and the state government has supported the Sabha with major financial grants and other forms of assistance.31 During the 1979-85 campaign for stopping illegal immigration into Assam, the Sabha gave up its official 'non-political' posture and formally became part of the Gana Sangtam Parishad (Ibe Or­ ganization for People's Struggle) that led the campaign. This seriously strained its relations with the government and the Sabha lost the government's patronage, which it called an 'indelible stain on the national life of the people'.32 The Sabha is not an interest group. Interest groups that try to influence policy usually accept the rules of the political game itself an indication of the success of the state's project of ordering the political process - and make demands that are negotiable. The Sabha on the other hand, sees itself as non-political - it claims the moral ground to make demands that are of a higher order; and it seems to succeed in claiming the right to make the consent of the governed conditional on the fulfillment of their higher order demands. Thus even if the state attempts to cultivate the Sabha - and the Sabha is financially dependent on the state government - the state does not succeed in influencing the shaping of the Sabha's projects, or to get it to act as an interest group that makes negotiable demands within the accepted rules of the democratic political game. The other important body that accounts for the organizational capacity of Assamese civil society is the All Assam Students Union. The post-Independence expansion of schools and colleges has led to the emergence of a space where young people from different parts of Assam can meet. This is probably the most important segment of the new social space that has proven favourable to the growth of subnationalist politics. AASU started as a voluntary federation of the students unions of schools and colleges. Or­ ganizationally it consists of elected secretaries of students unions. That gives it an extraordinary organizational base. Now there are schools in the most remote small towns and villages; colleges too are numerous. Through a remarkable process of self-selection, only predominantly Assamese-speaklng schools and colleges seem 31 Udayon Misr-.1, 'Culture and Politics', in Misra, Nunb-&st [ndu,, p. 32 Udayon Misra, 'Asom Sahitya Sabha', p. 126.

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

114.

The Political Process: &sist1111Ce 517 to have become part of this federation - Assam's numerous Bengali or Hindi schools are not part of the AASU. It is not surprising that the explosion of subnationalist politics in Assam coincides with the founding and consolidation of this organization. In 1979-85 it led the campaign against illegal immigration into Assam and the student leaders of the campaign, who formed the Asom Gana Parishad, were later elected to power in the state. Like the Sabha, the AASU too claims to be non-political a curious claim for a body that 'brought nonµal politics ,in the state to a standstill for five years from 1979 to 1985 and whose leaders then proceeded to win elections and form the government of the state. Here too the notion seems to be that it is the trustee of interests that are of a higher order than the wheeling and dealing of normal politics. One might add that there is also a notion of the obligations to civil society being of a higher order than a careerist notion of education as a means to achieve in­ dividual mobility. As soon as the Asom Gana Parishad - the political party formed by student leaders - came to power in 1985, AASU announced that it was not a student wing o f the new party. AASU subsequently took on an independent stance from the AGP government and even organized strikes against the state government. True, the state government tried to in­ fluence AASU's politics. But AASU has continued to assert its independence. Many of the ULFA militants were AASU activists and AASU protested some early police actions against ULFA. 33 A slogan I noticed on a wall in Guwahati in January 1991 'AASU is a relentless procession' - captures AASU's self-per­ ception: it is the custodian of Assamese civil society and with the procession as its preferred mode of political action, it promises never to subordinate the interests of civil society to the powers that be. The Sahitya Sabha and AASU therefore are institutions that give Assamese civil society its organizational capacity.

Conclusion Given the power of the poetics of subnationalism and the social space ·that sustains subnational projects, what are the prospects for Udayon Misra, 'All Assam Srudents Union: Crisis of Identity', in Misra, Nortb-Emlndu, pp. 144-51. JJ

Digiti zed by

Google

Ori ginal from

. .

UNIVERSITY OF MICHIGAN

518 St11te tmd Politics·in ]111U11

India's project of 'nation-building'? How does the state-society struggle embodied in the politics of subnationalism in India appear jn comparative perspective? The poetics that shape national pro­ jects is, of course, not un.ique to the 'Third World'. The Western national political community is hardly Jurgen Habermas's 'ideal speech community'. The reproduction of the national political community as the hegemonic 'imagined community' is achieved not through the power of reason, but partly through coercion implied in the status of the state as a compulsory association and through political rituals such as, in the US case, elections, Fourth of July parades, the pledge of allegiance or welcoming troops back home. American analysts use terms like civil religion to describe the poetics underlying these political rituals. The history of how this has come about and the difference with the history of post­ colonial formations is worth exploring. I cannot go into it here. But very briefly, in Westem Europe this seems to have come about as the result of a historical 'shift from society organized around local community to one in which individuals identified with "the nation" ' and the accompanying creation of a 'public sphere' as 'an important corollary of the nation state' that ultimately mediated collective participation in the emerging nation state.34 The vibrancy of subnationalisms in India does not mean that they have a telos that must inevitably lead to separation. Analyti­ cally one can contrast two extreme resolutions to India's problem with subnationalist dissent within the framework of the Indian union: one authoritarian,·the other democratic. The authoritarian resolution may be to destroy through relentless modernization and political repression, the social space that sustains subnation­ alist politics. In that impoverished social space the state can then take on the project of establishing a monopoly on the national imagination. However, in the 'Third World', neither capital nor the state has that capability. Hence the state may be left with the option of responding to subnationalist protest through.periodic repression. A more humane and democratic resolution will involve the state coming to terms with the evolving forms of social space and civil society in India. The crisis of the Indian national project today may be, above J4 Sandna

B. Freit2g, Colltaivt Actitm 11nd Cummrmity: Pub/it Arnw mul tht F.mergmtt ofCommUlllllirm in North lndi11 (Berkeley: University of California Press, 1989). She uses Jiirgen Habenruis' notion ofthe public sphere.

Digiti zed by

Google

Original from

UNIVERSITY OF MICHIGAN

The PoJitiCIII Process: Re.ristmKe 519 all, a crisis of imagination. There is no inherent reason why a poetics of p a nI- ndian nationalism cannot subsume subnational­ isms - there is enough of a tradition of sacred geography and shar�d history to do that. There obviously �oes exist a powerful poetics of Indian nationalism. However, the twentieth century has also shown the dangers of such a poetics - it can divide as well as unite. In an age of nationalism, 'one man's imagined community is another man's political prison•.lS Nonetheless let me cite an­ other song by Bhupen Hazarika (composition by Hazarika 1984) to illustrate the imaginative possibilities that exist to make sub­ nationalisms compatible with the larger Indian nationalist project. In a tribute to Assamese martyrs, he sings, 'We salute you, 0' martyr. In order to save Bharati's youngest daughter, you have embraced death.'36 Bharati - a feminized name for India - now becomes the mother; A.romi - a feminized name for Assam that appears in some of Hazarika's other songs - is the daughter. The rise of Hindu nationalism in India seems to be an effort to fill the pan-Indian national project - that seems to have lost much of its passion - with a more charged poetics. The modem imaginai�7 of a homeland seems finally to have subsumed the Hindus. If Muslims can have Pakistan, Jews can have Israel, why cannot India be more of a Hindu homeland? Understaridab)y Indian secularists reject that project because in this Hinduized definition of the Indian nation, Muslims are either symbolically excluded or culrurally subordinated. The crisis, to some enent, is a crisis of modernity: the age of nationalism everywhere has produced national projects that privilege 'formal boundedness over substantive interrelationships. But how does one make the imaginaire of homelands fit into a political formation that is a legatee to a subcontinental empire made up of regional kingdon1S and a cultural formation that despite its diversity does not easily yield to territorial boundedness? The violent partition of India in 1947, the subsequent breakaway of Bangladesh from Pak;stan in 1971 and the often bloody history of subnationalist politics in Arjun Appadurai, 'Disjuncture and Difference in the Global Cultural Economy' Public Cultt,rt, vol. 2, no. 2, Spring 1990, p. 6. 36 Casette Tape. 37 Arjun Applldurai writes about 'the French idea ofthe imaginary (irtU1ginair.t) as a constructed landscape of collective aspirations'. See Appadurai, 'Disjw1c­ ture and Difference', p. 5. JS

Digiti zed by

Google

Ongmal from

UNIVERSITY OF MICHIGAN

520 Stllk 1111d Politia in India India and Pakistan are signs of the subcontinent's difficulties with the modem imaginaire ofhomelands. The idea has been especially problematical in north-eastern India. Even after a process of reorganization that has led to the formation of seven states, there are other movements that seek further fragmentation of Assam in order to accommodate more homelands. Some of competing homeland projects make claims to the same land making the politics of homelands very violence prone. The challenge for India then is to reinvent a poetics that rejects the imaginaire ofhomelands and of peoples with exclusive cultures and histories - one that privileges interrelationships over boun­ dedness. Such a poetics of space would perhaps be closer to the publicness of Indian homes than the privateness of the Western bourgeois home. If nationalist discourse has been a response t o the geographical violence of colonialism, a truly emancipatory discourse will have to be able to develop a different relationship to culture and history than that of cultural property that is owned by nations and nationalities.

D1g1tizeo by

Google

Origlr.al from UNIVERSITY OF MICHIGAN

15 Protecting Women against Violence?: Review of a Decade of Legislation, 1980-1989 Flavia Agnes

I

f oppression could be taclcled by passing laws, then the decade the 1980s would be adjudged a golden period for Indian women, when protective laws were offered on a platter. Almost every single campaign against violence on women resulted in new legislation. The successive enacnnents would seem to provide a positive pic­ ture of achievement. The crime statistics reveal a different story (fable 15.3). Each year the number of reported cases of women killed or raped increased. The rate of convictions under these lofty and laudable laws was dismal (fables 15.1 and 15.2). The deterrent value of the enactments was apparently nil Some of the enact­ ments in effect remained only on paper. Why were the laws ineffective in taclcling the problem? To answer this question re­ quires a complex analysis of the process involved. Firstly, the laws, callously framed, more as a token gesture than from any genuine concern for changing the status quo with regard to women, were full of loopholes. Also, in most cases there was a wide disparity between the initial demands raised by the women's campaigns as well as the recommendations by law commissions and the final enactment. Many positive recommendations of ex­ pen committees did not find a place in the bills presented to the Parliament The activists and experts who had initiated the cam­ paigns could not participate in the process of drafting the bills. The defective laws were welcomed by the movement as a first stepping stone towards women's empowerment The questions,

D1g1tizeo by

Google

Origlr.al from



..-

.

UN[YsRSIT)' 0� t,,IICHIGAN

522 State and Politics in India

who these laws were being passed by and for whose beneftt, were seldom raised. The campaigns with their main thrust toward legis­ lative changes could not keep up the pressure once a law was enacted. There was a lull and a false sense of achievement resulting in complacency which took the pressure off the state machinery. Hence the implementation of these laws could seldom be mon­ itored with the same zeal. While one organ of the state - the legislature - was over eager to portray a progressive pro-women front by passing laws for the asking, the other organs, the executive and the judiciary did not reflect even this token concern at the level of interpretation and implementation. On the whole their function­ ing was totally contradictory to the spirit of the enactments. The campaigns themselves were limited in scope. At times, the issues raised addressed only superficial symptoms and not the basic questions of power balance between men and women, women's economic rights within the family and their status within the society. The solutions were sought within the existing patriarchal framework and did not arise from a new feminist analysis leading to empowerment of women. They seldom questioned conservative notions of women's chastity, virginity, ser:vility and the concept of the 'good' and the 'bad' woman in society. For instanbe the campaign against rape subscribed to the traditional notion of rape being the 'ultimate violation' of a woman, reducing her to a state 'worse than death'. It did not transcend the conservative definition of 'forcible penis penetration of the vagina by a man who is not her husband'. The campaign against dowry tried to artificially link 'dowry', which is property related, and 'death', which is an act of violence. If the campaign had succeeded, it could have beneftted the wo­ man's brother and father. It would have fuiled to elevate the woman's status in her matrimonial home, nor could it have ended domestic violence. So any remedy, no matter how effective and foolproof, to check the superficial malady, could not effectively arrest the basic trend of violence against women which results from women's powerlessness in a male-dominated society. The campaigns and the ensuing legal reforms have certain com­ monalties. The campaigns were highly visible and received wide media publicity. In each case the government response was prompt. In most cases law commissions or expert committees were set up to solicit puolic opinion. But most of those recommendations which

D1g1tizeo by

Google

Origlr.al from UNIVERSITY OF MICHIGAN

The Political Process: Resist1Z11Ce 523 would have had far-reaching impact did not find a place in the final enactments. Each enactment resulted in more stringent punish­ ment rather than plugging procedural loopholes, providing guide­ lines for strict implementation, setting a time limit for deciding the case and extending compensation to the victim. The apprehension of legal experts both within and outside the women's movement that stricter punishment would lead to fewer convictions proved correct The question confronting us today is whether social change and gender justice can be brought about n1erely by passing stricter laws? Each law vests more power in the state enforcement ma­ chinery. Each enactment stipulates more stringent punishment, which is contrary to progressive legal reform theory of leniency to the accused. Can progressive legal changes for women's rights exist in a vacuum in direct contrast to other progressive legal theories of civil rights? So long as basic attitudes of the powers that be remain anti-poor, anti-minority and anti-women, to what extent can these laws bring about social justice? At best they can be an eye-wash and a way of evading more basic issues of economic rights and at worst a weapon of state co-option and manipulation. The campaign against rape is a classic example of the impact of public pressure on the judiciary. More favourable judgements were delivered before the amendment, during the peak period of the campaign, than during the post-amendment period when they have been consistently regressive. Perhaps public pressure is a better safeguard to ensure justice titan ineffective enactments. In ·t1te case of tlte Maharashtra Regulation of Prenatal Diag­ nostic Techniques Act, 1988, tlte substantial participation of ac, tivists at tlte initial stage of formulation ofJhe-hill was not followed by tlteir involvement at tlte implementatibn level. So tlte law exists only on paper. The Sati Prevention Bill can be described as a decorative piece of legislation, � cover-up for state inaction at tlte crucial stage of preventing tlte public murder of a teenaged widow. The worst among tltese is tlte In1moral Traffic (Prevention) Act, 1956, which was amended in 1986. This amendment did not even come in response to any demand for change. The Act harms ratlter titan helps women as it penalizes prostitutes. Under this Act, any woman who is out at night can be picked up by tlte police. The only aim of tlte amendment seems to be to make the punishment more stringent. Ironically, three of the laws discussed

Digiti zed by

Google

.

Ori ginal from

UNIVERSITY OF MICHIGAN

524 State and Politics in India here which purport to protect women from violence actually penalize the woman. Instead of en1powering women, the laws serve to strengthen the state. And a powerful state conversely means weaker citizens, which includes women. The weaker the women, the more vulnerable they will be to male violence. This chapter proposes to review the laws enacted during the 1980s and their impact on women against the backdrop of chang­ ing perspectives within the women's movement.

Campaign for Reforms in Rape Laws 1983 The amendment to rape laws enacted in 1983 was the predecessor of all the later amendments which followed during the 1980s. Sections 375 and 376 of the Indian Penal Code which deal with the issue of rape had remained unchanged in the statute books since 1860. The amendment was the result of a sustained campaign against these antiquated laws following the infamous Supreme Court judgement in the Mathura case. Mathura, a 16-year-old tribal girl, was raped by two policemen within a police compound. The sessions court acquitted the police­ men on the ground that since Mathura had eloped with her boyfriend she was 'habituated to sexual intercourse' and hence she could not be raped. Further, the court held that there is a world of difference between sexual intercourse and rape. The high court convicted the policemen and held that mere passive or helpless surrender induced by threats or fear cannot be equated with desire or will. The Supreme Court set aside the high court judgement and acquitted the policemen and held that since Mathura had not raised any alarm, her allegations of. i;-ape were untrue. Her 'consent' was not a consent which could be brushed aside as 'passive sub­ mission' .1 The judgement triggered off a campaign for changes in rape laws which included public protests and wide media publicity. The principal gain of the campaign was that rape which was hitherto a taboo subject came to be discussed openly. Redefining 'consent' in a rape trial was one of the major thrusts of the campaign. The Mathura judgement had highlighted the fact that in a rape trial it is extremely difficult for a woman to prove that she did not consent 'beyond all reasonable doubt' as was required under the criminal law. The Supreme Court judgement I

Tukaram and Another vs S1:1te ofMaharashtr.1, 1979, AIR 185 SC.

Digiti zed by

Google

Ongmal from

UNIVERSITY OF MICHIGAN

The PolitiClll Procw: Re.rist1111Ce 525 had interpreted that absence of injuries and passive submission implied consent. The major demand was that the onus of proving consent should shift from the prosecution to the accused. This meant that once sexual intercourse was proved, if the woman states that it was without her consent, then the court should presume that she did not consent. The burden of proving that she had consented should be on the accused.2 The second major demand was that in a rape trial a wo1nan's past sexual history and general character should not be used as evidence. The response of the government to the campaign was prompt. A law commission was set up to study the demands. The· law co1runission's recommendations included both the demands raised by the anti-rape campaign, i.e. regarding onus of proof and the irrelevance of the woman's past sexual history. The co1nmission also recommended certain pre-trial procedures - women should not be arrested at night, a policeman should not touch a woman when he is arresting her and statements of women should be recorded in the presence of a relative, friend or a representative of women's organizations. It also recommended that a police officer's refusal to register a con1plaint of rape �hould be treated as an offence. However, the bill which was presented to the Parliament in August 1980 did not include any of these positive recommenda­ tions regulating police power. The demand that a woman's past sexual history and general conduct should not be used as evidence in a rape trial was excluded from the bill. The de1nand that onus of proof regarding consent should be shifted to the accused was accepted partially, only in case of custodial rape, i.e. rape by policemen, public servants, managers of public hospitals and re­ mand homes and wardens of jails. The bill had certain regressive elements which were not recom­ mended by the law commission. It sought to make publishing anything relating to a rape trial a non-bailable offence. This meant a virtual censorship of press reports of rape trials. This was ironical because public pressure during the campaign was built up mainly through media publicity and public protests. This provision met with a lot of criticism, hence it was referred to a joint committee of Parliament for further debate. After soliciting public opinion Flavia Agnes, 'Fighting Rape - Has Amending the Law Helped?', Tbt Ul1I!JtrS, February 1990, p. 4. 2

D1g1tizeo by

Google

Origlr.al from UNIVERSITY OF MICHIGAN

526 State 1111d Politia in Indill from a wide section, the committee submitted its report in November 1982. The regressive provisions were not scrapped but were made slightly milder. For instance publication of rape trials was made a bailable offence.3 The important provisions of the amendment were: (I) A new section was added which made sexual intercourse by persons in a custodial situation (policemen, public servants, managers of public hospitals and remand homes and wardens of jails) an offence even if it was with the consent of the woman. (2) For the fust time a minimum punishment for rape was laid down - ten years in cases of custodial rape, gang rapes, rape of pregnant women and girls under twelve years of age and seven years in all other cases. Even though this was not the major demand, it turned out to be the most important ingredient of the amendment. The delaying tactics of setting up committees by the state bad succeeded in robbing the campaign of its initial fervour. By the---.__ time the amendment was passed, the campaign had virtually died down. The enaconent was an indication of some measure of success to the campaign. So although it was inadequate, it was welcomed as a progressive step - a begiMing. It was asswned that the courts would follow the spirit of the amendment and give women a better deal in rape trials. After the amendment, the campaign lost its alertness. There were hardly any efforts to systematically monitor the im pact of the new law in rape trials. So the recent judgement in the Suman Rani case came as a jolt.4 The Supreme Court had reduced the sentence from the minimum of ten years to five years in case of police rape. The review petition filed by women's groups against the reduction of sentence was also rejected.5 This brought into focus the need to review judicial trends in rape trials since passage of the amendment. A close scrutiny of judgements of the decade revealed that the Suman Rani judgement was not an exception. It was merely adhering to the norm of judgements routinely meting out less than the minimum sentence in rape trials during the post-amendment period. Here is a glimpse of some important judgements during the decade. J Criminal Law (Amendment) Act

1983, Appendix I. 4 Premch:md and Another vs Stite of Haryana, CriminltJ LawJ-,u,I, 1989, p . 1246 SC. S State of Haryana vs Premchand and Another, CriminltJ LawJ�r,u,J, 1990.

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 527 Judgements

It would come as a surprise to many that the settled legal position regarding 'consent' before the Mathura trial was not so adverse as one would assume. In fact, the Mathura judgement had expr!!55ed views which were contradictory to the settled legal position in the Rao Harnarain Singh case of 1958. And what is worse, in spite of the amendment, there is every possibility of some other judgement being as anti-women and negative as the Mathura judgement even today. In Rao Harnarain Singh vs State of Punjab, the courts had held in 1958: A mere act of helpless resignation in the face of inevitable compulsion, quiescence and non-resistance when volitional faculty is either crowded by fear or vitiated by duress cannot be deemed to be 'con­ sent'. Consent on the part of the woman as a defence to an allegation of rape, requires voluntary participation, after having fully exercised the choice between resistance and assent. Submission of her body­ under the influence of terror is not consent. There is a difference' between consent and submission. Every consent involves submis�on but the converse does not always follow.6 This was the settled legal position and was relied upon by many later judgements during the pre-amendment period. Here are some positive interpretations of consent during the anti-rape cam­ paign, i.e. 1980-3. In 1980, the Supreme Court held: 'The Court must bear in mind human psychology and behavioural probability when as­ sessing the credibility of the victim's version.' The judgement also cautioned against stricter laws: 'Reflecting on this case, we feel convinced that a socially sensitized judge is a better statutory armour against gender outrage than long clauses or a complex section with all the protections writ into it.' The judgements of the post-amendment period have proved this statement right.7 In the same year, in another judgement the Supreme Court made a positive comment about the campaign: 'When rapists are revell­ ing in their promiscuous pursuits and half of humankind womankind - is protesting against its hopeless lot, when no .. 6 Rao Hamarain Singh vs State ofPunjab, Cri,,1m11/urwJoum11/, 1958, p. 563. 7 KrishnaW vs State ofHary:ina, AIR 1980 SC, p. 926.

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

528 State and Politics in India woman of honour will accuse another of rape, the Court cannot stick to its fossil formula and insist on corroborative evidence.'11 In another case of 1981, in which a 16-year-old girl was raped, the Court held: 'The fact that there is no injury and the girl is used to sexual intercourse is immaterial in a rape trial.'9 In 1982, in a case of gang rape, relying upon the Rao Hamarain Singh judgement, the Orissa High Court held that the consent must be voluntary. A mere inevitable compulsion, quiescence, non-resis­ tance or passive giving in when volitional faculty is either crowded by fear or vitiated by duress cannot be deemed to be 'consent'.10 In a landmark judgement of 1983 the Supreme Court held that corroboration (supportive evidence) of a victim's evidence is not necessary. The Court held: In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration is adding insult to injury. Why should the evidence of the girl or a woman who complains of rape or sexual molestation be viewed with the aid of spectacles tinged with doubt or disbelief? To do so is to justify the charge of male chauvinism in a male dominated society.1 The words used in this judgement indicate that the anti-rape campaign had an impact on it. These judgements, pronounced before the amendment, seem to be more progressive than the ones in the later years. What is most relevant is the fact that even before the amendinent, the law could have been interpreted progressively if the judiciary so wished. There was no uniformity and the pendulum could swing from one extre1ne to the other as ·in the case of Mathura. This is precisely what the amendments were supposed to obviate by providing certain guidelines. To the contrary, the judgements in the post-amendment period convey a dismal picture. The fust year after the amendment, I 984, started off with an extremely negative view of women's sexuality. A school teacher had seduced a young girl, but when she conceived he refused to 8 Rafiq vs State of Uttar Pradesh, Criminal Ltrw Joun,al, 1980, p. 1344. 9 Harpal Singh and Another vs Himachal Pr.idesh, Criminal Ltrw Joumt1J, 1981,p.lSC. 10 Bijoy Kumar Mohapatra and Others vs State of Orissa, Crimini,J Ltrw J=I, 1982, p. 2161. 11 Bharwada, Bhogibhai Hirjibhai vs State of Gujarat, Criminal urwJour1111/, 1983, p. 1096 SC.

Digi tized by

Google

Original frcm

UNIVERSITY OF MICHIGAN

Tbt Political Process: Rtsistarue 529 marry her. The girl filed a complaint that the consent was given under a false promise of marriage and hence it was not a valid consent and the act amounted to rape. The Calcutta High Court held: 'Failure to keep the promise at a future uncertain date does not amount to misconception. of fact. If a fully grown girl consents to sexual intercourse on the promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity.' This judgement was relied upon in several later cases where girls were duped into sex under a false promise of marriage, in order to acquit the accused.12 In a case, reported in 1989, a minor girl of7-JO years, was raped by a 21-year-old youth in a pit near a bus stop. There were two eyewitnesses. The girl had bite marks and her hymen was ruptured. The sessions court convicted the accused to life imprisonment and a fine of Rs 500. The Delhi High Court set aside the conviction on the grounds that there was injury·to the accused only on the body and not on the penis and that in rape of a minor by a fully developed male, injury to the penis is essential. While earlier the girl had to put up sufficient resistance to suffer injuries on her own body, the situation seems to have become worse. Now she is expected to put up even more resistance, so that the accused also sustains injuries - not just on his body but precisely on his penis! It needs to be emphasized that the girl in question was only a child, while the rapist was a robust man of2l years. u In another disturbing judgement reported in 1989, the Bombay High Court set aside a conviction by the sessions court in Kol­ hapur. The girl who was in love had voluntarily accompanied the accused to his friend's house. During the night they slept in a small room along with the hosts. The accused suggested intercourse but the girl was unwilling. The accused overcame her resistance and raped her twice during the night. The girl was found in the company of the accused by the police on a complaint filed by her father. The medical examination revealed that the girl's hymen ·was torn. There was blood on her underwear. But no blood or semen on any other garment. The sessions court held that the girl was a consenting party, but was less than 16 years of age and hence her consent was not a defence for the accused. So the judge 12 J:ryanti

Rani Panda vs Srote of West Bengal, Crimma/

p. 1535. 13 Moham1ned Habib vs State, Criminal

Dlgltlzeo by

Google

urw Jo11rnal, 1984,

urwJ01m111/, 1989, p. 137.

Original from

UNIVERSITY OF MICHIGAN

530 St11tt and Po/itia in India 'reluct2ntly' imposed one month's simple imprisonment and a fine of Rs 1000. In appeal, the High Court doubted the age of the girl and held that since there was a discrepancy between the school certificate and birth certificate, the benefit of doubt should go to the accused. So the Court held that the girl was not a minor. Regarding penetra­ tion, it was held: 'In a s1nall room in the presence of other people, the girl would have felt ashamed and it is difficult to believe that the accused could have had intercourse with her twice. It is possible that the accused may have tried to gratify his aroused passion by necking the girl. To overcome this, he may have forcibly touched her private parts with his hands. 'This was misunderstood/mis­ construed by her. Evidence lacks the degree of credibilii required for recording a conviction under Section 3 76 of the IPC.' 4 Forcible penetration of finger does not amount to rape, under the patriarchal scheme of things. In this case, even while the judge admitted that the hymen was ruptured because of 'forcible' finger penetration, _ according to him this did not even amount to assault. Further, the judge seems to assume that in a rape case, the girl can determine when and in whose presence she wants to get raped and that she has a choice of 'feeling shy' during the rape. In another case, a tribal woman was raped by a police constable who entered her house at night on the pretext of conducting a search. Her husband, who was a night watchman, was away at work. The Bombay High Court upheld the Dhulia sessions court acquittal on the following ground: 'Probability of the prosecutrix who was alone in her hut, her husband being out, having consented to sexual intercourse cannot be ruled out. Benefit of doubt must go to the accused and acquittal could not be interfered with.' One of the most important ingredients of the 1983 amendment is the clause regarding mini1num punishment of ten years in cases of custodial rapes and child rapes. But it appears that this clause was never meant to be taken seriously as it contrasts totally with the attitude of the judiciary regarding youth offenders.. Usually, in a rape case of a young girl, the rape is committed by teenaged boys or youths. In such cases, the tendency of the courts has been to treat the accused with leniency. Here is a_ glimpse of jud gements in cases of child rapes 14 Ravindra Dinkar vs St.1te of Maharashtra, Criminlll LJr1J/ Jaunull, I989, p. 394.

D1g1tizeo by

Google

Origlr.al from UNIVERSITY OF MICHIGAN

Tht Political ProctSS: Resistanct 531

TABLE 15. I Disposal of Rape Cases in Bombay 1985-1989 1985 10l

Numhtro{CllSts 1 Registered

2 Accused charge sheeted 3 Accused convicted 4 Accused acqui_tted S Accused pending trial SUllrrt:

1986 102

1987

3

91

81

1989 108

108 85 76 104 2 1 1 � 102 72

96 l

93 8 8

1988

100 l

2

95

Tbt Ltrwym, Bombay, 1990.

TABLE 15.2 Acquittals and Convictions in Appeal Courts 1980-1989

1 Sessiuns Court a) Acquittal b) Conviction

5

2 High Court

6

4

5

a) Acquittal upheld b) Acquittal reversed

c) Acquitted by appeal court d) Conviction upheld e) Sentence reduced/ modified

2

3

3 8

1 6

3 14

l

l

2

1

I

1 I

2

I 7

2 4

S 8

1

l

3

1

6

2

2

5

2 4

1 3

2 3

1

2

1

1

1 2

1 2

2

Suurrt: The Ltrwym, B01nbay, Fcbruary 1990.

A 7-year-old Harijan girl was raped by a boy of 18. She was severely injured and left unconscious. The sessions court sen­ tenced the accused to five years' rigorous imprisonment. In an appeal by the state to enhance the sentence, the Rajastha.n High Court dismissed the appeal and held: 'Although the rape warrants a more severe sentence, considering that the accused was only 18 years of age, it would not be in the interest of justice to enhance the sentence of tive years imposed by the trial court.'15 IS Bhai Singh vs State of lhry:irui, Criminll/ Llw]1111T71111, 1984, p. 786.

Digiti zed by

Google

Ori ginal from

_ l.!._NffiRS.l.lY Of. MICHIGAN

532 St11te llnd Politics in India . Where an 11-year-old girl was raped by a youth while another kept her pinned down to the floor and gagged her with her own sari, the sessions court convicted the accused with five years' imprisonment. The Madhya Pradesh High Court went to the extent of stating: 'Increasing cases of personal violence and crime rate cannot justify a severe sentence on youth offenders.'16 The positive judgements which are reported involve rape of minor girls resulting in multiple injury where the question of consent does not arise. But even these judgements have a conser­ vative reasoning for the conviction. Here is an example of how the judiciary looks at the issue: 'Virginity is the most prized possession of an unmarried girl. She would never willingly part away with this proud and precious possession.'17

Towards a New Definition The judgements quoted above reveal that the campaign has not succeeded in evolving a new definition of rape beyond the para­ meters of a patriarchal value system. In fact, the same old notions of chastity, virginity, premium on marriage and fear of female sexuality are reflected in the judgements of the post-amendment period. Penis penetration continues to be the governing ingredient ·in the offence of rape. The concept of 'penis penetration' is based on the control men exercise over 'their' women. Rape violates these property rights and may lead to pregnancies by other men and threaten the patriarchal power structure. We have not gone beyond this definition. Recently a 5 -year-old girl was raped by a youth around 18 years old. The girl was n1ade to lie on her stomach and was raped from the back. The girl suffered severe injuries. At the police station the girl stated that a finger was inserted. The police expected a 5-year-old to know the difference between a penis and a finger, even when· she was attacked from the back. The offence was registered as indecent assault under Section 354 of IPC. The maximum punishment for this offence is two years while rape is punishable with life imprisonment.

Vinod Kumar and Another vs State of Madhya Pradesh, Crimint,/ urw Jounwl, 1987, p. 1541. 17 Babu vs S12te of Rajasthan, Crimm11/ urw Joun111/, 1984, p. 74. 16

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 533

In all exi'.tninal offences, injury and hurt caused by using weapons is more grievous than the one caused by the use of limbs but in the case of rape, the injury caused by the use of iron rods, bottles and sticks does not even amount to rape. Many Westem countries have totally abolished the term 'rape' and termed it as· 'sexual offences'; the punishment is determined by various factors includ­ ing the amount of injury caused. By this definition, the distincfion between rape, attempt to rape and violation of woman's modesty is abolished and they are treated as offences of a similar category and punishment is based on the severity of the offence. When the amendment came about, legal expertS both within the movement and outSide, had expressed their fears that more stringent punishment would result in fewer convictions. The judgementS of the post-amendment period justify their fears. In­ stead, perhaps there is a need to reformulate the clause on punish­ ment which should include compulsory monetary compensation to the victim instead of stricter punishment. The issue needs further debate. 18 Since there are a large number of acquittals in the appeal courts, a demand needs to be made that unless very strong circumstances can be shown to reject the verdict of the trial courts, confirmation of conviction by courts below should be a matter of course. Another most important question is whether a judgement delivered after three-five years, with an option of going on appeal, can ever give justice to women. The situation is even worse in major cities. We need to set a strict time limit for deciding all sexual offences. And marital rape, the most common and ac­ cepted form of rape in our society, needs to be recognized legally.

Dowry (1984-1986) The Dowry Prohibition Act of 1961 is a very small Act which consistS of only eight sections {two more sections were added later during amendmentS), full of contradictions and loopholes. The Act laid down a very narrow definition of dowry as 'property given in considera.tion of marriage and as a condition' of the marriage taking place'. The definition excluded presents in the form of cash, omamentS, clothes and other articles from its . 18 Flavia Agnes, 'Journey to Justice - Procedures to be Followed in a Rape

Trial', Maj1is, 1990, p. 6.7. '

D1g1t 1zeo by

Google

Orlgmal frcm

- .

UNIVERSITY OF MICHIGAN

534 State and Politics in India purview. The definition also did not cover money asked for and given after marriage. Both giving and ta.king dowry was an offence under the Act. The offence was non-cognizable and bailable. In legal parlance, this means that it is a trivial offence. The m.aximum punishment was six months and/or a fine of Rs 5000. To make matters more complicated, prior sanction of the government was necessary for prosecuting a husband who demanded dowry. C o m ­ plaints had to be filed within a year of the offence and only by the aggrieved person. The ineffectiveness of the Act was 1nanifested at different levels. On one level, there were hardly any cases filed under this Act and there were less than half a dozen convictions in the period between the enactment and the amendment. So the purpose of the enact­ ment as a deterrent factor was totally lost. The Bombay High Court in Shankar Rao vs L.V. Jadhav held that a demand for Rs 50,000 from the � irl's parents to send the couple abroad did not constitute dowry. 9 The judgement held that since the girl's par­ ents had not agreed to give the amount demanded at the time of ,narriage and as such it would be deemed as 'consideration for marriage'. Anything given after the marriage would be dowry only if it was agreed or promised to be given as consideration for the marriage. This absurd interpretation was in total contrast to the spirit of the Act and defeated the very purpose for which it was enacted. Second, in total defiance of the Act, the custom of dowry had percolated down the social scale and communities which had hitherto practised the custom of bride price were now resorting to dowry. At the other level, all the violence faced by women in their husbands' homes was being attributed to dowry and the term 'dowry death' became synonymous with suicides and wife murders. Against Dowry: A Misplaced Campai gn Most cities in India wimessed public protests against dowry deaths which received wide media coverage. It came to be accepted both nationally as well as internationally that dowry death, or bride burning as it was termed, was a unique form of violence e x ­ perienced by Indian women, more specifically by Hindu women. A logical extension of this argument was that a more stringent law 19 L.V. Jadhav vs Shankar R:io Aha

Dig1t1zeo by

Google

Saheb Pawar, 1983, 4 SCC 231.

Origi�al rrom

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 53 5 against dowry would effectively curb domestic violence and stop wife murders. An oversimplified analysis of domestic violence, which is a far more complex and universal phenomenon, was put forward by activists and responded to by law-makers. To plug some of the glaring loopholes of the Act, a private member's biJI was introduced in Parliament by Pramila Dan­ davate, MP, in June 1980.20 The bill was referred to the joint committee of both the houses. The findings of the committee were that the definition of'dowry' was too narrow and vague; the Act was not being rigorously enforced. The stipulation that com­ plaints could be filed only by the aggrieved party within a year from the date of the offence narrowed down its application. Also punishment of imprison1nent for six 1nonths and/or fine up to Rs 5000 was not fonnidable enough to serve as a deterrent. The committee suggested that the words 'in consideration marriage' ought to be totalJy deleted from the definition of dowry. The committee also felt that the explanation which excluded presents from the definition of dowry nullified the objective of the Act. It recommended that the gifts given to the bride should be listed and registered in her name. In case she dies during the first five years the gifts should revert to her parents. The gifts should also revert in case she is divorced. The presents could not be transferred or disposed of for a minimum period of five years from the date of marriage without the prior permission of the family court on an application n1acle by the wife. These provisions were aimed at ensuring the bride's control over the gifts. The committee also recommended the appointment of dowry prohibi­ tion officers for the enforcement of the Act. Retrospectively, it appears that the recommendations were based on an erroneous premise that girls can exercise a choice either at the time of marriage or later in their husbands' homes. It also did not take into consideration the desperation of parents ·oo. get their daughters married and keep them in their husbands' homes at all costs. It also ignores the fact that most of the women in this country have no consciousness of their legal rights. Unfortunately, the bill which was introduced in 1984 failed to take into consideration son1e of the positive recommendations of the committee. The main feature of the Act was that it substituted 20 Gayatti Singh, 'Dowry Prohibition

D1g1t,zeo by

Law', 77,, Lnwycrr, 1986, Grey page I

G008l e _ ,__,____,,..UNIVERSITY OF MICHIGAN Orlgmal frcm

536 Stau "nd Politia in /ndill

the words 'in connection with marriage' for the words 'in con­ sideration of marriage'. It was felt that the simple omission of the words 'as consideration of marriage' would make the def­ mition too wide. The suggestion of imposing a ceiling on gifts and marriage expenses did not fmd a place in the Act. The important feature was the increase in punishment to five years and a fine up to Rs 10,000 or the value of dowry whichever is more. But again the section did not apply to presents given to the bride or to the bridegroom. The one-year limitation period was removed and it was now possible for the girl's parents, relatives or a social work institute to ftle a complaint on her behalf. The requirement of prior sanction of the government for prosecuting a husband who demands dowry was dropped and dowry was made into a cognizable offence. Before the impact of the amendment could be gauged, the Act was again amended in 1986. Rarely are acts amended within such a short span. It had taken over 100 years for the rape laws to change. The discriminatory laws concerning Christian divorces enacted in 1869 have not yet changed. But suddenly the govern­ ment expresses great concern for the well-being of women and amends a law within two years. The amendment of 1986 was aimed at making the Act even more stringent. The fme was increased to Rs 15,000. The burden of proving the offence was shifted to the accused and dowry was made into a non-bailable offence. A ban was imposed on adver­ tisements. If the woman died an unnatural death, her property would devolve on her children and in the event of her dying childless would revert to her parents. In fact, all the loopholes pointed out by the committee were now plugged. So the stage was all set to abolish 'dowry death'. (fhe Act also amended the IPC and created a new category of offence called 'Dowry Deaths'; (S 304B). This provision will be discussed in detail in the next section, i.e., domestic violence.) In spite of these amendments nothing changed. Women con­ tinued to get burnt in their homes. Reported cases of suicides and murders steadily increased in every major city (see Table 15.3). The demands for dowry in the form of gifts to the bride and groom and continued demands for money became a predictable way in which young brides would be humiliated. The parents of the girls (some of whom would not spend money on educating the girls or

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 537

TABLE 15.3 Reported Cases of Domestic Violence in Greater Bombay Year

Murders under

S 3021PC 1986 1987 1988 1989 1990

4 12 2 13 9

Suicides under Harassment under S S 306 IPC, 498A ofIPC and under 304B IPC Sections 3, 4, 5 of 38 45 56 103 72

Dqu,ry Prroention Aa 41 143 152 177 143

Stnmt: Social Service Bnnch, CID, Bombay. Cited in The urwym, Bom­ bay, April 1991. Nott: IPC • Indian Penal Code.

in making them independent) spent huge amounts of money on lavish weddings to impress the in-laws and tried to meet all de­ mands for gifts and valuables with the hope that the girl would never return to her native home, creating a 'stigma'. Young women discovering that there was no place for them in their parents' homes resorted to committing suicide in a desperate bid to escape hwniliation and violence. At times when they had a premonition of impending disaster, and sought their parents' help just before the murder, the parents sent them back to be murdered. The problem of dowry arose not at the time of marriage but only after the girls had died, in order to avenge their deaths and retrieve the gifts. The death of a daughter did not in any way change the reactionary and conservative approach to marriage and parents were all set to marry their next daughter with an equal amount of dowry to a boy of their choice. Tremendous pressure would be exerted on girls who wanted to acquire professional skills, live independently or marry a boy from a different class, caste or religious background. In such cases, parents who cry hoarse against dowry would go all out and disinherit their daughters.21 Protests against dowry were often initiated at the instance of people who conformed to this value system. They would usually have a total contempt for the ideology, values or lifestyles of the 21 Madhu Kishwar, 'Dowry to Ensure Her Happiness or to Disinherit Her', Mimusbi, no. 31, November-December 1985, p. 31.

Dlgltlzedby

Google

·-�

Original from

I UNIVERS .. Of MICHIGAN . - �TY .

·-

>38 State and Politics in India members of women's organizations. These factors made activists reassess their stand on the issue of dowry. An article in Manushi by Madhu Kishwar 'Rethinking Dowry Boycott' created a lot of controversy and a public debate.22 Women's organizations began questioning the role of a girl's parents in driving her to death. Organizing dowry protests could no longer be treated as a simple, obvious demand. Individuals and groups began to feel that the ca1npaign against dowry was wrongly formulated because it did not link the issue of dowry with that of a woman's property rights in her parent's home. If violence is a manifestation of a woman's powerlessness in her husband's house, not receiving any dowry or gifts from her parents would make her even more vulnerable to violence and hwniliation.

Domestic Violence 1983 and 1986 The discussions on the two amendments to the criminal laws (with a specific reference to Sections 498A and 304B of IPC) are usually carried on as an appendix to the discussion on dowry. Here a conscious effort is made to evaluate the1n within the framework of do1nestic violence because they in fact deal with (or at least ought to deal with) the issue of do1nestic violence - cruelty and harassment of wives and wife murders. Three major acts govern criminal trials and punishment: the Indian Penal Code (IPC) lays down categories of offences and stipulates punishment. The Criminal Procedural Code (CrPC) lays down procedural rules for investigation and trial and the Indian Evidence Act prescribes the rules of evidence to be followed during a trial. Till 1983 there were no specific provisions pertaining to viol­ ence within the home. Husbands could be convicted under the general provisions of 1nurder, abetment to suicide, causing hurt and wrongful confinen1ent. But these general provisions of crim­ inal law do not take into account the specific situation of a woman facing violence within the home as against assault by a stranger. The offence which is committed within the privacy of the home by a person on who1n the woman is economically and emotionally dependent needs to be dealt with on a different plane. 22 Madhu Kishwnr, 'Rethinlcing Dowry Boycott', M11muhi, no. 48, Septem­

ber-October 1988, p. 10.

D1g1t 1zeo by

Google

Orlgmal frcm

UNIVERSITY OF MICHIGAN

The Political Process: Resisumce 539

In criminal offences, it is the state which is the prosecuting body. Hence·it is extremely important to safeguard the right of an individual accused against the state machinery during a criminal trial. So strict procedures of investigations have to be followed and the rules of evidence have to be strictly adhered to. It was extremely difficult for women to prove violence by husbands and in-Jaws 'beyond reasonable doubt' as was required by criminal jurisp�dence. There would be no witnesses to cor­ roborate her evidence as the offence is committed behind closed doors. Second, even if the beating did not result in grievous hurt, as stipulated by the IPC, routine and persistent beatings would cause grave injury and mental trauma to the woman and her children. Different criteria had to be evolved to measure injury and hurt in a domestic situation. Generally, complaints can be registered only after an offence has been committed. But in a domestic situation, a woman needs protection even before a crime is committed when she apprehends danger to her life as she is living with her assaulter and is also dependent on him. Even though provisions of the IPC could be used against a husband for assaulting his wife, it was very seldom done. The police being committed to the value system which condones wife beating would not register a complaint against a husband for assaulting his wife even when it resulted in serious injury which was punishable under Sections 324 or 326, i.e. causing grievous hurt with or without weapons. It is generally assumed that a husband has a right to beat his wife/ward. On the contrary, a wife who actually mustered enough courage to approach a police station would be viewed as brazen and deviant. Instead of registering her complaint the police would counsel the woman about her role in the house, and explain that she must please her husband and obey him. She would be sent back without even registering a complaint. So a special law was needed to protect a woman in her own home.23 A Wrong Strategy

Following the public protests in cases of rape and dowry deaths in all major cities and towns in India during the early 1980s, a Madhu Kishwar and Ruth Vanita, 'Can Police Reform Husbands?', M11nUSbi, no. 31, November-December 1985, p . 38. 23

D1g1tizeo by

Google

Origlr.al from

UN;.i,LER-5ln' OF 1'1!Cl:i1GAN

540 St11te and Politia in India large number of women came out of their cloistered silence and started seeking help to prevent domestic violence. Since the police refused to register their complaints under the existing provisions of the IPC, a de1nand was raised for a special enactmenL Many Western countries passed laws against domestic violence in the 1970s. Unfortunately, in India the women's movement did not raise the demand for a similar law at that stage. Initially only dowry-related violence was highlighted by women activists. All violence faced by women within homes was attributed to dowry by activists as well as by the state. Their initial demand was for a law to prevent dowry-related violence. This turned out to b e a narrow, shortsighted and wrongly formulated programme. Plac­ ing dowry violence on a special pedestal denied recognition and legitimacy to the need for protection against violence by all women under all circumstances. While the government was over eager to pass laws even when there were adequate provisions within the IPC for crimes such as sati, obscenity and procuring 1ninors for prostirution, in case of domestic violence instead of a new legislation, the government was content to amend the provisions of the Criminal Acts. The Criminal Acts were amended twice during the decade - fust in 1983 and again in 1986, to create special categories of offences to deal with cruelty to wives, dowry harassment and dowry deaths. Prior to the amendments, although the IPC did not specifically deal with violence in a domestic situation, it had a chapter which dealt with offences against marriage. Another chapter dealt with offences affecting the human body - murder, suicide, causing hurt, etc. It is interesting to note where the first enactment concerning cruelty to wives (or dowry harassment as it is popular­ ly known) is placed. Chapter xx is entitled 'Offences Related to Marriage' and includes the following sections: S 493 - Cohabitation caused by a man deceitfully including a belief of lawful marriage. S 494 - Marrying again during the lifetime of husband or wife. S 495 - Concealment of former marriage from a person with whom subsequent marriage is contracted. S 496 - Going through a fraudulent marriage ceremony without lawful marriage.

D1g1tizeo by

Google

Origlr.al from UNIVERSITY OF MICHIGAN

The Political Process: Resistance 541 S 497 - Adultery (only a man is punishable under this section for committing adultery with a married woman). S 498 - Enticing of taking away or detaining with criminal intent a married woman. Chapter XVI of the IPC deals with offences affecting the human body. This is further divided into offences affecting life - murder, suicides, abetment to murder and suicide, abortion, etc. -(Ss 299 to 318); those involving bun which include simple and grievous hurt, with or without weapons (Ss 323-38); wrongful restraint and wrongful confmement (Ss 341-8); assault, indecent assault (moles­ tation), kidnapping, abduction of minors, buying or selling a minor for the purpose of prostitution, unlawful labour, rape and un­ natural sex, etc. (Ss 352-77). The fust amendment, cruelty to wives, is not situated within Chapter XVI - offences affecting the human body either under the section 'causing hurt' or under the sections dealing with as­ sault, etc. where it would have been more appropriate. Instead it is ironically placed as an appendix to S 498. 'fhis is an obnoxious and extremely derogatory provision which treats women as the property of men. The section gives every husband a right to prosecute any man who takes away his wife even though this has been done with the wife's consent. Ss 497 (adultery) and 498 are a constant reminder to women about their subordinate status within the IPC. Terming this new and important section as S 498A, ought to have been a cause for protest. But surprisingly, it did not raise any criticism from legal experts either within the movement or outside. Fortunately, although conceived as a protection against dowry harassment, the wording of the section was wide enough to apply to other situations of domestic violence. The section is worded thus: Whoever, being husband or the relative of the husband of a woman, subjects such women to cruelty shall be pwtished with imprisonment for a term which may extend to three years and shall also be liable to fme. Explanation - for the purposes of this section 'Cruelty' means (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or death whether mental or physical of the woman; or (b) harassment of the woman where such harassment is with a view

- .

Dlgltlzeo by

Google

--- UNIVERSITY OF MICHIGAN Original from

542 St11te 11nJ Politics m India to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of &ilure by her or any person related to her to meet such a demand. Although the aim was to deal with dowry harassment and suicide, eiplanation (a) does not use the word dowry to define cruelty. It also includes mental cruelty. Hence i t is wide enough to be used in situations of domestic violence and mental cruelty. Where it falls short is by the use of 'grave' in aplanation (a). This precludes the everyday violence suffered by a large number of women. Even with this limitation, the section can be an effective deterrent to violent husbands only if the judiciary and the police interpret and enforce it in the right spirt Initially, the police refused to register cases under this section unless specific allegations of dowry harassment were made. But as a result of constant agitations and interventions, it is now accepted that the section ought to be used in all situations o f cruelty and domestic violence. This was a small victory to those who have been campaigning for law on domestic violence. Be­ cause the police would not register a complaint under this section unless dowry harassment is specifically mentioned, vague allega­ tions of dowry demands are added on to genuine complaints of wife beating. This tends to cast aspersions on the credibility of the whole complaint; the case cannot then stand through legal scrutiny in a criminal court and results in acquittal of the husband. At another level, statistics compiled by the police department erroneously convey the impression that all violence is dowry related, leading to a false assumption that if dowry is curbed, violence on women will disappear. There is a misconception among the police and criminal lawyers that the section is misused by women. While it is true that a significant number of cases filed under this section are subsequently withdrawn, the complexities of women's lives, particularly within a violent marriage, have to be taken into account. The conviction of the husband may not be the best solution to her problems. The various alternatives that she has to choose from, each one in itself a compromise, may make it impossible for her to follow up the criminal case. Let u s examine some of them. Since the section does not protect a woman's right to the matrimonial home, or offer her shelter during the proceedings, she may have no other choice but to work out a reconciliation. At this point she would

Dig1t1zeo by

Google

Origi�al rrom

UNIVERSITY OF MICHIGAN

The Political Process: Resistanct 543

be forced to withdraw the cotnplaint as the husband would make it a precondition for any negotiations. ff she has decided to opt for a divorce and the husband is willing for a settlement and a mutual consent divorce, again withdrawing the complaint would be a precondition for such settlement. Third, if she wants to separate or divorce on the grounds of cruelty, she would have to follow two cases, one in a civil court and the other in a criminal court. Anyone who has followed up cases in court would well understand the tremendous pressure this would involve for a woman at a stage of rebuilding her life, finding shelter, job and childcare facility. Under the civil law, she would at least be entitled to maintenance, which would be her greater priority. If she has to choose between the two proceedings, in most cases women would opt for the civil case where they would be entitled to maintenance, child custody, injunction against harass­ ment and finally a divorce which would set them free from their violent husbands. But this is not to imply that S 498A has no use for women. Most women find it extremely useful as a deterrent. Women may not be in a position to see it through to its logical end. But this is not to deny its usefulness in bringing husbands to the negotiating table. Since the offence is non-bailable, the initial imprisonment for a day or two helps to convey to husbands the message that the wives are not going to take the violence lying down any longer. Ultimately, n1ost of the criminal cases which are followed up arc the ones where the woman has died and the case is followed up by her relatives. · In this context, a recent judgement of the Bombay High Court comes as a welcome respite. In a case where the husband had initiated criminal proceedings against the wife and made baseless allegations against her character, the wife filed a complaint under section 498A stating that th.is amounted to cruelty. The husband was convicted by the judicial magistrate, Pune, and was awarded six months' imprisonment and a fine of Rs 3000. On appeal, the sessions court set aside the imprisonment and enhanced the fine to Rs 6000. The wife filed an appeal ·in the Bombay High Court against the reduction of sentence on the ground that it has resulted in miscarriage. Madhuri Chimis, herself an advocate, appeared in person and urged that the degree of leniency shown to the husband cannot pass the test of judicial scrutiny and it would be a mockery of justice to permit the accused husband to escape the extre1ne

Digiti zed by

Google

Ori ginal from

-UNIVERSITY --- .. OF MICHIGAN ,

544 St11tt 11nd Politics in Jndi11

penalty of law when faced with evidence of such cruelty. To reduce the sentence would render the judicial system suspect and the common man would lose faith in courts, she submitted. The High Court upheld the conviction but considering the age of the hus­ band (which was around 50 years) did not impose imprisonment but enhanced the fine to Rs 30,000. The amount would be awarded to the wife as compensation. Subsequently, the Supreme Court has upheld the Bombay High Court judgement and commended the Bombay High Court for its progressive stand on women's issues.24 But this judgement comes after a series of negative judgements under S 498A by various High Courts including the Bombay High Court. Before analysing the judgements, however, it is necessary to mention the second amendment to the IPC which was enacted in 1986. Both the amend1nents have also amended the CrPC and Evidence Act. The amendment of 1986 introduced a new offence of dowry. 304B IPC - Dowry death: Where the death of a woman is caused by any bums or bodily injury or occurs otherwise than under nonnal circumstances within seven years of her marriage and if it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any other relatives of her husband for or in connection with any demand for dowry, such death shall be called 'dowry death' and such husband or relative shall be deemed to have caused her death. The offence is punishable with a minimum of seven years and a maximum of life imprisonment. The presumption of guilt is on the accused and he would have to prove that he is innocent. This section unlike S 498A gives no scope to be used in situations where the violence is not linked to dowry. Since no record is maintained and no complaints made at the time.of meeting the dowry de­ mands, while the girl is alive, it is extremely difficult to prove a dowry death under this section. The section also presumes that women are harassed for dowry only within the first seven years of marriage. Overall, this section is not likely to benefit women to deal with domestic violence.25 The other sections of the IPC which 24 Flavia Agnes, 'There's More to Violence than Dowry and Death', lnditm

l!xpress, 24 May �987.

25 Madhuri Mulrund Chitn.is vs Mulcund Marlcand Chitn.is - Bombay High

Court (unreported) reported in lndum I!xprm, 20 March 1991.

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 545

have been .used in cases of wife murder are S 302 - punishment for murder - and S 306 - abetment to suicide. Here are some judgements where these sections as well as S 498A have been negatively interpreted by the courts in cases of wife murder. In a case of abetment to suicide under Section 306 IPC, the Punjab and Haryana High Court set aside the conviction and acquitted the husband on the ground that presumption as to abetment to suicide is available only if the husband is proved guilty of cruelty towards the wife.26 In another case, the Madhya Pradesh High Court set aside the sentence of three years and acquitted the mother-in-law. The court held that since the deceased ended her life by self-immolation when none of the in-laws were present in the house: 'Suicide in all probability was committed out of frustra­ tion and pessimism due to her own sensitiveness. The court held that case of harassment and humiliation was not proved.'27 In a case under Section 498A IPC, the Bombay High Court held that it is not every harassment or every type of cruelty that could attract S 498A It must be established that beating and harassment was with a view to force the wife to commit suicide or to fulfil illegal demands of husband or in-laws. The court held that beating and harassment with a view to force the wife to commit suicide or to fulfil the illegal demands of the husband was not established.28 In the famous Manjushree Sarda case, the sessions court, Pune, con­ victed the husband of murdering his wife by poisoning. The Bombay High Court confirmed the order. But the husband was acquitted by the Supreme Court The court held that the guilt of the husband was not proved beyond reasonable doubt and the wife might have committed suicide out of depression.29 In the case of Vibha Shukla, Vibha was found burnt while the husband was present in the house. A huge amount of dowry was paid at the time of the wedding and there were several subsequent demands for dowry. Vibha's father-in-law was an Assistant Com­ missioner of Police in Bombay. When Vibha had delivered a daughter, the family did not accept the child and she was left behind in Vibha's parents' house. In spite of all this, the Bombay l 26 Ashok Kumar vs State of Punjab, Criminal LirwJuu1'7111I, 1987, p. 412. 27 Padnuvati vs State of MP, Criminal LawJuu1'7111I, 1987, p. 1573. 28 Smt Sarla Prabhakar Wagmare vs State of Maharashtra, Criminal Law JfJUrnal, 1990, p. 407. 29 Sharad Sarda vs State of Maharashtra, Criminal Law]OU1'7111I, 1986.

Digi tized by

Google

Original frcm

UNIVERSITY OF MICHIGAN

546 St11te and Politics in India High Court set aside the order of conviction of the sessions court acquitting the husband of the charge of murder and harassment under Section 498A. The Court held that the offence of murder could not be proved beyond reasonable doubt and further that occasional cruelty and harassment cannot be construed as cruelty under Section 498A IPC.30 Again in the recent judgement delivered on 6 March 1991. in yet another well-publicized case of the n,..rder of Geeta Gandhi, the Bombay High Court set aside the conviction by the sessions court, Nagpur and acquitted the husband and father-in-Jaw of the charge of murder under section 3202 IPC. The body of Geeta Gandhi was burned beyond recognition, the flesh roasted and charred right up to the bones. Her body was recovered from the bathroom at around 5.30 am. The father-in-law and the husband who were presumably sleeping in the very next room had made no attempt to put out the fire. Instead, the brother-in-law had called the fire brigade. Geeta, a post graduate in microbiology, who stood 1st in the MSc exam, was in the process of setting up her own pathology clinic. She was married in January 1984 and died in April 1985. At the time of her death she was four months pregnant. She had a previous miscarriage when she had jaundice and also occasionally suffered from minor ailments. The court, while acquitting the husband and father-in-law, presumed that Geeta might have committed suicide because of depression caused by her ill-health.31 While Jaws have proved inadequate to deal even with this blatant form of violence, newer forms of violence against women are coming to light. The debate can no longer be restricted to violence by husbands and mothers-in-law. The decade has wit­ nessed not only newer forms of killing female children through sophisticated means like sex determination tests but also the well­ planned suicide pact by the Sahu sisters32 in Kanpur, followed by similar instances-in other parts of the country. The well-publicized 30 Smte of M2harashtra vs Ashok Chhotelal Shulda (unreported) Bombay High Court jud gement, 14 January 1986, in confirmation case no. 4 of 1986,·• 31 Dilipkumar Tarachand GJndhi and Another vs Smte of Maharashtra, Bombay High Court Judgement, 6 March 1991, in Criminal Appeal no. S 1 of 1991. 32 Navneet Sethi and K Anand, 'A Life of Humiliation', Mlmusbi, no. 45, March-April 1988, p. 19.

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

The Politicfll Process: Resistflnce 547 case of the Thakkar sisters, two unmarried women killing their married sister-in-law, indicates yet another facet of the issue of domestic violence. 33 Incidences point out that a whole new com­ plex approach is needed to >>

to be viewed within context within context particularly when the definition of'indecent representation' is left vague. It gives power to the enforcement machinery to enter any home and seize any material on the ground that it constitutes 'indecent representation of women'. Since its enactment there are hardly any cases which have been decided by the courts where the definition regarding 'indecent representation' has gained clarity. But the Pati Parmeshwar case decided by the Bombay High Court is an indication of how the issue of'indecent representation' is likely to be interpreted by our courts.43 The ft1m Pati Parmeshwar was denied certification under the Cinematograph Act of I 962 on the ground that it was violative of guideline 2 (iv-a) which was issued under Section 5-B of the Cinematograph Act of 1952.44The producer challenged the refusal of the censor board to grant the film certification on the grounds that the guideline was ultra vires of Article 19(1Xa) of the Constitu­ tion (freedom of speech and expressions) and the Cinematograph Act. The film depicted the leading woman, Rekha, in a position of servility. It glorified the inhwnan treatn1ent meted out to her by her husband and in-laws and her quiet acceptance of this humilia­ tion as an ideal for all Indian women. The four judges of the Bombay High Court who heard the case expressed four different views and offered four different inter­ pretations of the legal issues involved. Justice Pratap, the single judge who heard the case opined that the character of Rekha was not depicted as being servile within the meaning of guideline 2(iv-a). According to him, Rekha exhibited praiseworthy commit­ ment to saving her marriage and exemplified the inner strength and character of Indian womanhood. He saw the abuses which Indira Jaising, 'The Ignoble Servility of Pati Parmeshwar', Tht Lawyerr, December 1988, p: 6. 44Section 5 B(l} of theCinematographAct 1952: 'A film shall not be certified under this Act if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the sovereignty and integrity o f India, the security of the State, friendly relations with foreign states, public order, decency or morality or involves defamation or contempt of Court or is likely to indicate the commission of any offence'. Guideline 2(iv--.i) provides that: 'visuals or words depicting women in ignoble servility to 1nan or glorifying such servility as a praiseworthy quality in women are not represented'. 43

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

--... ,:.. , ·--> .. .._.· . ..

556 State and Politics in India Rekha was forced to withstand as ennobling. He concluded that the film was not violative of guideline 2(iv-a). He left the issue of constitutionality of the guideline open. The government appealed against this judgement. The case was heard by a two-judge bench consisting of Justices Lentin and Agarwal who disagreed with each other on every issue and gave totally contradictory judgements.Justice Agarwal found the guide­ line to be tdtra vires of both - Section 5-B of the Cinematograph Act as well as Article l 9{i)(a) of the Constitution. Further, he held that .even if the guideline was constitutional, the depiction of Rekha would not be violative to it. He held that servility is not ignoble but worthy of praise. On the other hand, Justice Lentin found that guideline 2(iv-a) falls within the notion of decency and morality mentioned in Article 19(2) of the Constitution and 5 B - (i) of the Cinematograph Act. He reasoned that the notion of decency and morality precludes depiction of women which is denigrating to them. Furthermore, he decided that the guideline was most certainly violated by the depiction of Rekha, as the frlm epitomizes ignoble servility being presented as a praiseworthy quality. He commented that Rekha was depicted as servile 'to the point of repugnancy'. On account of the difference between the judges, the matter was referred to Justice Shah who agreed with Justice Lentin that the guideline is not unconstitutional nor is it beyond the scope of Section 5-B(l) of the Cinematograph Act. He reasoned that ig­ noble servility itself is indecent because it is not acceptable under our contemporary standard of propriety within society. But stran­ gely, Justice Shah did not find that Rekha's depiction was ignoble servility. He agreed with Justice Agarwal that the film is not violative of the guideline. He reasoned that because the film was seen by a primarily Hindu audience, there was nothing wrong with Rekha's servility. He ordered that the film be certified. So out of the four judges who heard the case, three judges held that glorifying servility of a wife does not amount to 'ignoble servility' under guideline 2(iv-b). What is even more disturbing is that the judges also interpreted the secular Constitution of our country which forbids discrimination on the ground of religion, along religious lines and held that different role models apply and norms of decency and morality apply for Hindu women and a Hindu audience. The final outcome of this case is an indication

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 557 of how the act will be interpreted by our courts. With wide powers vested with the state, it leaves no doubt as to whose interest it will serve. The wrongly formulated demands have served to strengthen state power.

Sari 1987 There were widespread protests following the public murder of an 18-year-old girl, Roop Kanwar, in Deorala, Rajasthan in September 1987. One of the demands was for legislation to deal with the issue. The government which had become expert in passing laws on women's issues responded promptly. This time there was no pret­ ence of 'expert committees' to look into the issues. No delaying tactics. Before the embers of the funeral pyre of Roop Kanwar cooled down, the law came into effect. The state law, the Rajasthan Sari (Prevention) Ordinance, was passed in October 1987. This was soon followed by a central legislation in January 1988 - the Commission of Sati (Prevention) Act-which was passed through both houses with a minimwn of debate or amendment. 'Is the Indian Penal Code dead when it comes to crimes against women?' IndiraJaising, the legal expert on women's issues, asked in her editorial of The urwyers.45 'It was not lack of a law but the lack of a will that resulted in its failure to intervene', remarked Madhu Kishwar, editor of Manushi.46 By then at least a certain section within the women's movement had become wary of the government's eagerness to pass ineffective laws, and were highly critical of the new law. The passing of the law has taken the clock back a century. The first legislation against sati was promulgated in 1827 in Bengal; this was followed by similar legislations in Madras and Bombay. The act was challenged in the Privy Council by pro-sari religious factions on the ground of freedom of religion. This W3S countered by the argument that there could be no freedom of religion that could go beyond what was compatible with the paramount claims of hnmanity and justice. The aigmuent of a woman's choice, which 45 IndiraJaising, 'The Murder ofRoo p K:.inwar', The urwyers, October 1987, p. 3. 46 Madhu Kishwar and Ruth Vanita, 'The Burning of Roop Kanwar', MtmUShi, no. 42-3, September-December 1987, p. 15.

Digitized by

G008I e _______.,,._..,.!!J!l!V�RS IGAN ... -··· ITY OF MICH Original frcm

11

558 State and Politics in India was the main premise in the defence of the Roop Kanwar murder, was not put forward then. The preamble of the Madras Sati Regulations stated: 'Without intending to depart from one of the 1nost important principles o f the Government in India, that all classes of the people be secure in the observance of their religious usages, so long as the system can be adhered to without violation of paramount dictates of justice and humanity, government has deemed it right to establish the following rules.... ' When the Indian Penal Code was enacted, a special provision to prevent the commission of sari was not incorporated. But it was considered that the sections on murder, suicide and abetment to suicide could adequately deal with the problem. By passing a law, the governn1ent has bestowed a special status on the public murders of widows and a religious and cultural context to-the issue.The act concedes that sari constitutes a special offence, distinct from murder and suicide. Shifting the onus of proving the offence on the accused vests further arbitrary powers with the state which will be used not to prevent the commission of sari but to curb civil rights of people in general. Most of the people who were arrested after the incident were mere bystanders. Under the new act, the onus of proving in­ nocence will be on them. This violates one of the basic premises of criminal jurisprudence that the accused is innocent till proved guilty. While conceding that it might be necessary in the interest of justice to depart from this principle in crimes of a private nature like rape and wife murder, it was totally unwarranted in the case of sati where the crime is committed publicly.At a time when most countries are considering abolition of the death sen­ tence as it has proved futile as a way of reducing the cri1ne rate, it is ironical that under the pretext of protecting women's rights, we are introducing it for newer categories of offences.The final irony of the act is that in its zeal to protect wo1nen's rights, the act stipulates punishment to the victim. A woman who attempts sati is to be imfrisoned for one to five years and fined of Rs 5000 to Rs 20,000.4 47 Maja Daruwahi, 'Central Sati Act - An Analysis', The

1988,p. 17.

Digiti zed by

Google

urwy=, January

Ongmal from

UNIVERSITY OF MICHIGAN

The Political Process: Resist1111Ce 559

Sex Determination Tests 1988 On 10 May 1988, the government of Maharashtra brought into force the Maharashtra Regulation of Use of Pre-Natal Diagn ostic Techniques Act, 1988. This moment which ought to have been one of jubilation turned out to be a mon1ent of doubt and misgiv­ ings. Amniocentesis, a technique through which the sex of an unborn child can be determined, was originally discovered for the detection of genetic abnormalities. But in India, where being born female itself is treated as a deformity, the tests were widely used for sex determination with the specific intention of aborting the female foetus. The abortions which had to be carried out in the second trimester of pregnancy were extre1nely dangerous to a woman's health. The issue had hit the headlines when a male foetus whose father happened to be an influential government official was erroneously aborted.48 The ban on misuse of the technology in government institu­ tions had led to its privatization and commercialization. Sex deter­ mination clinics mushroomed all over the country. Unscrupulous doctors were using the technology to cash in on the societal abhorrence towards females to make a quick buck. The wide popularity of these tests was a stark reflection of the hatred towards femaies among members of their own family. In the last century, this phenomenon caused the colonial rulers to overstep their policy of n o n i-nterference in matters concerning religious practices and enact two laws. One preventing the grue­ some public murders of widows and the second, banning of an even more gruesome practice - the private killing of female babies by their own parents. The instant popularity of sex determination (henceforth SD) tests indicated that this hatred persists. Progress and development have apparently not contributed towards changing the basic a t ­ titude. But with the aid of science and technology, it has acquired sophisticated forms and precipitated the killings from the born to the unborn stage. The tests also raised the issue of neutrality of science and technology and the indifference of the medical com­ munity to issues of social justice. The campaign was initiated by concerned individuals from RP. Ravindra, 'Campaign against Sex Determination Test: Study of Action', Women's Studies Unit, TISS, 1990. 48

Digitized by

G008le

-·---···

Ori ginal from

UNIVERSITY OF MICHIGAN

560 Stlltt and Politics in India women's groups, civil liberty, health and people's science move­ ments. In October 1984, a broad coalition, the Forum Against Sex Determination and Sex Preselection (FASDSP) was set up to carry on a sustained campaign against sex determination. The F ASDSP worked at many levels - conducting research studies and surveys, disseminating information through seminars, workshops and ar­ ticles in the popular press and working towards a new legislation. Innovative ways of creating public opinion were used. Morchas in which prominent personalities marched with their daughters; children's day programmes which focused on the girl child and a month long 'Nari Jeevan Sangharsh Yatra' all over the city to create public awareness, etc. The campaign gained momentum and the issue received wide media publicity and sympathy and support from a wide section of people. This campaign stands out against others mentioned earlier, not only for its systematic follow-up of the issue but also for constant introspection. It is only through this process that the layers of complexity could be disentangled and a clear perspective could emerge within which the demand for regulating the tests could be fumly placed. The issues which had to be confronted were not so simple and straightforward as they had initially seemed. In the first phase of the movement, the focus was on the woman's health and the dangers of abortion in the second trimester of pregnancy; chances of wrong diagnosis and abortion of male foetus and of unscru­ pulous doctors routinely informing the gullible parents that the foetus is female, etc. But while the campaign was gaining momen­ tum, the technology was also gaining ground and it became possible to detect the sex of the foetus in the first trimester. So the argument of unsafe abortion became baseless. There was also the possibility of even more sophisticated technology through which sex could be pre-selected at the time of conception. So the argument of repeated pregnancies affecting the health of the woman or even diagnostic errors would not hold. The basic issue, that of protecting the female species, had to be addressed directly without any frills and cover-ups. This too was not easy. The arguments supporting an individual female foetus's right to life were too close to the conservative pro-life argument against abortion which was one of the crucial issues facing the women's movement in the West. If extended further, it would jeopardize

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

The Political Process: Resist1111Ce 561

women's right to safe abortion. Once again, extreme caution had to be exercised to formulate the framework. In India, abortion was an offence under the IPC until 1971. But the Medical Termination of Pregnancy (MfP)Act, 1971 laid down liberal grounds through which women obtained the right to safe, scientific and legal abortions. The purpose of the Act was not so much for women's rights as population control. The MTP Act laid down certain selective grounds under which the pregnancy could be medically terminated. Grounds like 'failure of contraceptives' were wide enough for any woman to avail of this facility. While protecting the female foetus, it was important to ensure that the provisions of the MTP Act are not narrowed down, which would curb the crucial right of every woman to have a safe abortion. 49 It was extremely difficult to establish a nexus between sex deter­ mination and selective abortions. At times, they were not even conducted at the same clinic. Women could go to a private clinic for the test and then approach. a government hospital for a free abortion. So the issue had to be dealt with at the level of the sex determination test and not at the level of constraining a woman's right to abortion. A petition was filed by a women's group in Bombay, the Mahila Dakshata Samiti, in the High Court after the death of a woman who had undergone the test in September 1986.so The news received mixed response from the campaign group as it was based on a dangerous ground that sex determination tests are violative of Article 21 of the Constitution - the right to life, the same argument used by pro-life groups. A. private bill introduced by Sharad Dighe, MP from Bombay to amend the MTP Act to prevent SD tests was also opposed. The only logic on which all the arguments could be based was that sex determination leading to selective abortions amounts to sex discrimination and is violative of Articles 14 and 15 of the Constitution - equality before law and prohibition of discrimination on the grounds of sex. The question of a woman's choice also had to be debated in depth. ff a woman_ has a right to limit the number of children, extending the same logic further, does she not have a right to have a child of a particular sex? This was the argument widely used by those with vested interests in support of the tests. The doctors . 49 Amar

Jesani, 'Hands off the MTP Act', Tbe urlJlJm, October 1988, p. 22.

Deepti Gopinath, 'Amniocentesis Petition Admitted', Tbe urlJlJm, O c tober 1986, p. 14.

SO

Digitized by

G008le

�-

·---".................. .....:. ..

Ori ginal from

UNIVERSITY OF MICHIGAN

562 St11te 1111d Politics in India · claimed that they were doing a service to women by aborting their female children because in our society to be a woman is bad enough but to be a mother of girls is the worst humiliation. Other arguments in favour of the tests which received publicity in the media were (1) as per the theory of supply and demand if females become scarce in society their value and statuS would be enhanced; and (2) since a female child would be subjected to great hardships after birth, getting rid of the child before her birth would save her from greater humiliation. The arguments were based on the premise that subordination of women in our society is an immutable and irreversible state which had to be accepted and not countered. While the group was trying to change social attitudes through various means o f propaganda, the demand for legislation was raised mainly to prevent the medical community from misus­ ing the technology for its own vested interests. In 1986, the group succeeded in getting a private members' bill introduced in the state legislative assembly by Mrinal Gore of the Janata party, and Shyam Wankhede and Sharayu Thalcar of Con­ gress-I. The government. was now forced to respond. A survey of sex determination clinics was commissioned. This helped the ac­ tivists obtain official statistics to support their contention about the widespread misuse of the tests in the city. The government also set up an expert committee before the bill could come up for discussion. Representatives ofFASDSP were invited to be on the committee. But a doctor who vociferously defended the tests and who was running a SD clinic was also invited. So the motive of the government became suspect. Anyway, it was decided that it would be advisable to monitor its functioning from within rather than boycotting it totally. In any case, the option to resign could be exercised at any point of time. The report of the committee submitted in May 1987 gave the campaign a boost as it included all its demands in its recommenda­ tions. The main recommendations were as follows: (i) The misuse of pre natal diagnostic techniques for SD should be totally banned, (ii) this use should be restricted only to government institutions, (iii) these techniques should be used for the detection of congenital abnormalities only, (iv) the state government should enact a special law for this purpose, (v) the state government should pressurize the central gove'rnment to enact a similar legislation at the national level, (vi) the MTP Act, if required, may be amended so as to

Dlgltlzeo by

Google

Original from

UNIVERSITY OF MICHIGAN

The Po/itialJ Process: Resistance >63

include in it a clause explicitly stating sex-selective abortion as a legal offence (except where therapeutically justified), and (vii) the law can succeed only if it is supported by a well-planned long-term movement for health education and consciousness raising. The government should take suitable steps to that effect. The report of the expert committee was never released or dis­ cussed. It was apparent that the government was buying time, waiting for the tempo of the campaign to slacken. On 31 December 1987, out of the blue, almost as a New Year gift, the Chief Minister announced that the cabinet had accepted all the recommendations of the committee. The campaign group was pleasantly surprised. The FASDSP team was very happy but cautiously responded that the real test would lie in its implementation. In April 1988 the government suddenly announced that the bill would be discussed in the assembly on the following day. With difficulty, a copy of the bill was procured. The team was shocked to fmd that all the objectionable clauses had been incorporated: (1) The bill provided for granting licences to private centres/ laboratories while the expert committee report and even the Chief Minister's announcement had categorically stated that licences would be given only to government centres/ laboratories. (2) It provided for punishment to the woman undergoing the test. Although the clause said that such a woman would normally be assumed to be innocent, it provided for punish­ ment if it was proved that she went for the test 'on her own'. Under the present social context, there was every possibility of the in-laws getting away scot-free and the woman being punished for undergoing the test. (3) The right to move the court rested only with the official organs of the implementing machinery i.e. the state ap­ propriate authority and the state and local vigilance commit­ tees (SAA, SVC and LVC). But no time limit was set for their constitution, without which there could be no im­ plementation. (4) In the conditions listed for undergoing the test, the crucial words 'potentially teratogenic' were dropped which meant that the woman could undergo the test even for a minor infection or after consumption of any routine drug.

D,g,tizeo by

G008Ie - ·---a...w-,UNIVERSITY ..... .. ... . � OF MICHIGAN Origlr.al from

564 St11tt and Po/itia in India

The FASDSP was in a dilemma. If the bill was passed in the present fonn, it would represent a purely symbolic vict0ry for the campaign. Opposing the bill would seal the fate of the cam­ paign once and for all. Referring it to another expert committee would mean indefinite postponement. So finally, it was decided to suggest some amendments. Only two amendments were ac­ cepted - the words 'potentially teratogenic' were added to nar­ row the scope of misuse of SD and the clause giving blanlcet powers to government to exempt institutions from the application of the regulation was dropped. For the success of the Act, it was necessary that a few cases be lodged against the violators of the law within the fust few months and that the legal action be highlighted in the media. But it was not possible to move the court as the SAA, SVC and LVC were not set up till 1989 and action could be initiated only through these bodies. In 1989 when they were finally set up, there was no public announcement. A list of the members could be obtained only with difficulty. None of the FASDSP members were in­ cluded. Persons with high standing in the field of medicine, whose names had been suggested because of their commitment to the issue, were also not includ�. Among the members was a doctor who had been conducting the test. Finally, through public pres­ sure, she had to resign. Although limited in scope, the passing of the Act created op­ timism for similar campaigns in other states. The number of SD clinics declined significantly after the Act. The credit for this cannot be attributed to the new Act but to the sustained campaign preceding it. After the Act was passed, the campaign slackened and it needs to be seen whether the campaign can sustain itself to monitor the effective implementation of the Act. In April 1987, the government of India announced the forma­ tion of an expen committee to draft a central legislation. After prolonged discussions by active members, a draft legislation was finalized and circulated to all state governments. In spite of alen interventions, all the objectionable clauses of the Maharashtra Act were also included in the central bill. Before this bill could be presented to the Parliament, the government collapsed and so it remains on the shelf collecting dust until a ·new government thinks it important enough to introduce in P_arliament or, alternatively; if sufficient public p�essure is generated and the government is

Digiti zed by

Google

Ori ginal from

UNIVERSITY OF MICHIGAN

The Political Process: Resistance 565 forced to introduce it. But this kind of tempo is difficult to sustain indefinitely.

Conclusion While discussing the enactments against violence on women during the decade the 1980s, it is also important to mention briefly certain developments i n the other laws concerning women, particularly within marriage. The Muslim Women (Protection of Rights on Divorce) Act passed in 1986, denied Muslim women the right to maintenance after divorce. Christian women's demand for a reform in their antiquated, discriminatory and sexist personal laws was not conceded. The issue of a secular non-sexist civil code has been consistently pushed under the carpet and even when it does come up, in the present political context, it may well be more anti­ minority than pro-women. A Bombay High Court judgement held that a woman has no right to enter her matrimonial home. The demand fur a 25 per cent job reservation for women was not conceded. No viable alternatives for women to opt out of marri�ge in terms of jobs and housing have evolved. Wherever the economic or political power base would have been upset, the government has not passed any laws. The laws which have been given for the asking and which confer excessive powers to the state need serious requestioning. Perhaps the move­ ment has been short-sighted in raising such demands in the first place and falling right into the manipulative schemes of the govern­ ment. The women's movement is too insignificant at this moment to monitor the implementation of these laws and prevent their misuse. The power acquired by the government in the name of protecting women becomes all the more frightening in the present political context of rising communalism and criminalization of the political process.

Digiti zed by

Google ·-·-- ___ UNIVERSITY . ....., 4• .,. OF. MICHIGAN Ori ginal from

-

'

A Bibliographic Guide I. The System Early examples of the optimistic depiction of Indian politics as a modernizing system are Norman Fahner, The Indian Political Sys ­ tem (Boston: Houghton Mifflin, 1962) and W.H. Morris-Jones, The Gwernmmt 1111d Politics ofIndia (London: Hutchinson Univer­ sity Library, 1964). More complex descriptions were given in Lloyd I. and Susanne H. Rudolph, The Motkrnity of Tradition: Political Deveiop,,,mt in India (Chicago: University of Chicago, 1967; B01nbay: Orient Longman, 1969) and Rajni Kothari, Politics . in India (Boston: Little, Brown, 1970; New Delhi: Orient Long­ man, 1970). Of Marxist writings, the collections Kathleen Gough and Hari K Shanna (eds), Imperialism 1111d Revolution in South Asia (New York: Monthly Review Press, 1973) and K. Mathew Kurian (ed.), InJia - State 1111d Society: A Marxian Approach (Madras: Orient Longman, 1975) are good examples of the state of the literature i n the early 1970s. An essay that led to some debate at the time i s KN. Raj, 'The Politics and Economics of Intermediate Regimes', &onomic 1111d Political Weekly, vol. 8, no. 27, 1973, pp. 1189-98. Of post-emergency writings, two interesting examples are Andre Gunder Frank, 'Emergence of Permanent Emergency in India', &onomic and Political Weekly, vol. 12, no. 11, 12 March 1977; and David Selboume, An Eye to India: The Unmasking of II Tyranny (Harmondsworth: Penguin, 197 7). Apart from the essay by Sudip­ ta Kaviraj reprinted in the present volume, another of his essays deserves mention: 'On the Crisis of Political Institutions in India', Contributions to Indian 5ociomgy, vol. 18, no. 2, I 984, pp. 223-43. A more recent collection ofMarxist approaches to Indian politics is Zoya Hasan, S.N.Jha and Rashceduddin Khan (eds), The State, Political Process and Identity: Rejkctions on Motkrn India (New Delhi: Sage, 1989). The most comprehensive recent attempt to describe

Digiti zed by

Google

Ongmal from

UNIVERSITY OF MICHIGAN

A Bibliographic Guuk 567 Indian politics in Marxist terms is Achin Vanaik, The PainfaJ Transition: Bourgeois DmtOCTIICJ in India (London: Verso, 1990). The more recent work by Rudolph and Rudolph is In Punuit of Lakshmi: The Political &onumy of the Indit1n State (Chicago: University of Chicago Press, 1987; New Delhi: Orient Longman, 1987). The two-volume collection edited by Francine Frankel and M.S.A. Rao is Dominance 1171d State Power in lndill: Decline ofII Socilll Order (Delhi: Orlord University Press, 1990). Atul Kohli's recent work is Dem«rllCJ and Discontent: India's Growing Crisis of Gwer­ nability (Cambridge: Cambridge University Press, 1991; New Delhi: Foundation Books, 1992). Another large attempt to present a comprehensive analysis of Indian politics is the four-volume series Social Change t1nd Politiclll Discourse in India: Structures of Power, Mwnnmts of Resistance edited by T.V. Sathyamurthy of which the first three volumes, State and Nation in the Context of Social Change (Delhi: Oxford University Press, 1994), Industry and Agriculture in India since Independmce (Delhi: Oxford University Press, 1995) and Region, Religion, Caste, Gender and Culture in Contemporary India (Delhi: Oxford University Press, 1996) have been published. A comparative study of state and politics in India, Pakistan and Bangladesh is Ayesha Jalal, DmtOCTIICJ and Auth­ mtarit1nism in South Asia: A Comparative and Historical Pmp«tive (Cambridge: Cambridge University Press, 1995). The more recent writings of Rajni Kothari are to be found in Politics t1nd the People: In Search ofII Humane India, 2 vols (Delhi: Ajanta, 1989) and State against Dmwt.TIICJ: In St11Trh of Hrmume Gwmumce (Delhi: Ajanta, 1988). Ashis Nandy's writings on the Indian state and politics can be found in his At the &Jge ofPsychol­ ogy: Essays in Politics and Culttire (Delhi: Oxford University Press, 1980), Traditions, Tyranny and UtopillS (Delhi: Oxford University Press, 1987) and in the essay 'The Political Culture of the Indian State', Daedalus, vol. 118, no. 4, Fall 1989, pp. 1-26.

II. The Institutions



The literature on Indian politics after Independence began with a heavy emphasis on constitutional studies. Until the late 1960s, there were very few studies on the political process as such. As far as the Indian Constitution is concerned, the most concise and lucid account of the debates surrounding its making is Granville Austin,

Digiti zed by

..�---

Google . .-

Ori ginal from

UNIVERSITY OF MICHIGAN

568 St11tt and Politics in India •

Tht Indian Constitution: Corntntont ofa Nation (Oxford: Clarendon

Press, 1966). Good examples of traditional constitutional studies are M. V. Pylee, Constitutional Gove,nmtnt in India (Bombay: Asia Publishing House, 1965) and Durga Das Basu, Introduction to tbt Constitution ofIndia (17th ed. New Delhi: Prentice-Hall, 1995). More recent discussions on the place of the Constitution in the political system can be found in Henry C. Hart, 'The Indian Constitution: Political Development and Decay', Asian Survty, vol. 20, no. 4, April 1980, pp. 428-51 and R. Sudarshan, 'The Political Consequences of Constitutional Discourse', in T.V. Sathyamurthy (ed.), State and Nation in the Conttrt ofSocial Change (Delhi: Oxford University Press, 1994), pp. 55-86. For specific discussions on the judiciary in relation to political issues, see Upendra Baxi, The Indian Supreme Court and Politics (Lucknow: Eastern Book Company, 1980) and Baxi, Inhuman Wrongy and Human Rights: Unconventumal Essays (New Delhi: Har-Anand, 1994); Bhagwan D. Dua, 'A Study in Executive­ Judicial Conflict: The Indian Case', Asian Survey, vol. 23, no. 4, April 1983, pp. 463-83; R. Sudarshan, 'In Quest of State: Politics and Judiciary in India',Jor,mal ofCommonwtalth and Comparative Politics, vol. 28, no. 1, March 1990, pp. /'\Ill \ l'\l'I Rll \( h.S

STATE AND POLITICS IN INDIA Lllled by PARTBA CHATl'ERJJ:I: This timely book, the fint in the themel in politic, aeries. brinp together landmark euays whicb collectively preseac III overall view ofIndian politics u it ataDds -compft, vibnnt, dynamic -ftfty yean after Independence. It ICnlQ:Dml India'• majorpoticical mstitutions, and analyses proceues ofdomination and reaisrance that play I central rok: in lndiui politics. Some reedi:D&I preKDt a view of the development ofthe party system,lhe elecioral IJ)'ltan. the Judkiuy, the bureaucracy, the federal 1yarem and the plannina proccu throu&h the Nehru and lDdin Gandhi period,. Oehm aive a sense oftbeinstitutional 'crisis' 1iocelhe late l98()s.andeumine current pouibilitics ofinstitutional chance. Some otMr essays aimed at undentandin& India's political dynamx:1 cxamme the state u a site for contestation ofpower and look at the recent 10Cial movements which coalend with the aenenl ltrUc1ure of politicalimtitutiom. This sekctioa ofsipificant writings which aid in explorina the uncertainties racing Indian politic:t today, will be invaluable for colle1c and university students and also for joumaliltl and the mterestec11eneraJreac1er. Partlla Cluitterjee is Professor ofPolitical Science and Director at the Centre for Studies in Social Sciences., Calcutta. &cu,,ufrom Revirw:s 'This collection ofeuays, comprehensive in its acopc and open ended in its presentation, is invaluable to any 1tudent oflndian politics.' -7>,Td,,,.,,. '(The book uses] some intcrestiq intellectual styles which try to map politics through music, films and law ... the voll,IJIIC is euential reading for anyone studying the dynamics ofpolitics in contemporary India.'

=�-



"What strikes me in this boot is the cff011 to overcome u well u to usefully utilise the chronic and usually debilitating tension between

·11U�f: 1