Delhi High Court lawyer Aaliya Waziri’s essays delve deep into the legal, societal, and cultural aspects of gender discrimination and violence against women in India

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On paper, India is a legally affirmative country, especially when compared to other older, stronger democracies of the world. This affirmation comes from legal segues available to girls and women with reference to safer abortion, rape convictions and instances of physical and mental aggression/ discrimination. While these affirmations may seem ideal, they have several functional handicaps. Legal frameworks need to be proactively adapted, with proper groundwork to vouch for their validity. The matter, however, does not begin with law but often ends there.

Laws (barring a few which are preventative in nature) exist in response to crime or injustice. It is in the collective mindset, inherent bias, embedded stigmas and a community’s potential for violence that injustice originates. To end (or at least regulate) violence at the source we need to look deeper, at social norms and a society’s practice of the said norms. Aaliya Waziri — Delhi High Court lawyer and former International Consultant at UN Women Office for Timor-Leste, a Southeast Asian country — observes this conundrum and its implications in her book, In the Body of a Woman: Essays on Law, Gender and Society (Simon & Schuster India).

Ways of othering women

Waziri observes the space that gender occupies in law and order by confronting the laws available (or those missing or misplaced) to women in the country and their general accessibility when it comes to utilizing them. She asks what it means to be a 21st century Indian woman, especially one at the receiving end of justice. And, to some extent, she answers what a truly gender-inclusive legal space looks like — in a physical, systematic as well as symbolic sense.

Keeping the 2012 Nirbhaya case as a reference point, Waziri begins her case with the most elementary human right — of body autonomy and dignity, which in the case of sexual violence, is measured by “consent” or rather its violation. She identifies the changing definitions of rape — where penetration is not the only form of abuse — and consent, where silence and submission do not qualify. The change that is yet to come is in the ambiguity of reading a woman’s sexual history in context of the crime and in delivering justice to victims of marital rape.

Indian laws, Waziri implies, contradicts itself in its interpretation of marital status; where on one end, it limits a married woman’s right to call forced sexual contact as rape and on the other hand, equips, quite progressively, unmarried women as well as rape survivors to access safe, legal and hassle-free abortions up to 24 weeks (by the virtue of the 2021 amendment in Medical Termination of Pregnancy, 1971).

Apart from marital status, Waziri points out other social indicators that restrict a woman’s social and legal position, rousing varying degrees of discrimination: from witch-hunts in rural settings (which are sadly still prevalent in states such as Odisha, Bihar, Rajasthan, etc.) to post-pregnancy return to employment. The writer-advocate also dedicates a section to “sexualized communism” — which is another way of “othering” women in a country with as much communal tension as ours.

Political, social and economic space for women

She writes on the (mis)use of technology and cyber spaces to objectify and commodify women — especially as a political tool to establish two-fold superiority of gender and caste. These include the unfortunate incidents of ‘Bulli-bai’, ‘Sully Deals’ and ‘Bois Locker Room’, which use the internet as a means to attack women belonging to certain groups (in this case, Muslims).

Repeatedly in her book, she asks what it means to be a woman in the digital age and what it translates to, in legal terms, to be harassed, violated, “demoralized and degraded” like this. The answer, sadly, is in meek cyberbullying laws. Currently, India ranks third in cases of online bullying, according to a survey conducted by Microsoft a decade ago. The numbers must have multiplied in the present, as one can only assume.

Globally, too, gender deserves attention, discussion and action. “Gender equality and the empowerment of women is certainly the greatest rhetoric of our times,” writes Nishtha Satyam, the Head of Mission UN Women in Timor-Leste, in her introduction to the book. Despite national and international frameworks at place, gender equality “remains one of the highest aspirations of humanity”.

Waziri elaborates on our obligations to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (as adapted by the UN General Assembly in 1979) and the directives of Human Rights, in general and more specifically, the Sustainable Development Goal (SDG) of Gender Equality. To fulfill these, Waziri says, India needs to create political, social and economic space for women in the country.

One such area where there is dearth of representation is formal work-space and stations of reform and policy. Women form less than 10% of the Indian police force and account for less than 40% of the total economic participation. Speaking of the judicial space — “a seat at the decision-making table” — Waziri points out that “of the 256 Supreme Court judges appointed in the last 71 years, only 11 (4.2%) have been women.”

An appeal for ‘gender-responsive lawmaking’

Although Waziri’s essays selectively focus on contemporary issues, these instances are deeply rooted in tradition and history. Waziri’s arguments hold true outside of the book, from long before and after its publication. Today, we live in a world where women are stripped of their agency; where progressive democracies like the United States of America advocate restrictive laws like anti-abortion laws; where religion still holds power over a woman’s conduct, as is imposed in Iran; where women are (and have always been) the first in line to be attacked in a conflict like in Israel and Palestine. We live in a country where what happened in Manipur and what happened to Bilkis Bano can only be seen with abhorrence. This makes the book relevant in all ways possible: historical, contemporary and futuristic.

In the Body of a Woman reviews the principles of intersectionality — where gender, religion, marital status, caste, laws and social/gender norms collide to create a humanitarian crisis. The procedural lacks in managing this crisis, the general lack in reporting, responding and reforming related crimes, and the “persistent gap in enforcing our welfare mechanisms”: all find space in Waziri’s essays. Women make up 48% of the country, which makes their issues a part of the larger scheme of social justice. However, the book does not include LGBTQ+ concerns when it comes to understanding gender from the legal point of view.

Waziri quotes provisions exercised by Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC). Although currently existing in the form of proposed laws, three bills introduced in Lok Sabha in August, 2023, proposed that Bharatiya Nyaya Sanhita and Bharatiya Nagarik Suraksha Sanhita shall replace these colonial handbooks. The intention is to make laws simpler but stricter, and justice easier to access. One can hope that the concerns raised by Waziri and feminists-activists all over the country will be given their due space in these new legal frameworks.

The Supreme Court of India’s Handbook on Combating Gender Stereotypes, released in the same month, on the other hand, is a much more tangible change in the direction. The handbook echoes what Waziri speaks for and what she expects from the country’s legal system: “Language is critical to the life of the law. Words are the vehicle through which the values of the law are communicated. Words transmit the ultimate intention of the lawmaker or the judge to the nation. However, the language a judge uses reflects not only their interpretation of the law, but their perception of society as well,” as the document states. It opens a way for the kind of “gender-responsive lawmaking” that Waziri appeals for in her book. All we need now is to walk the talk.
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