Through an anthology of legal cases, DR SAMEENA DALWAI and AMALA DASARATHI assert that modern society and our legal machinery continue to perpetuate the anuloma and pratiloma systems in sexual desire, violence and assault.
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WHY is it that some cases of rape elicit horror in Indian society and some other cases do not? Looking carefully at the positionality of the victims and perpetrators would tell us that societal reactions of sexual assault are reliant on the caste and class status of the parties involved. Where the female victims are from higher caste-class strata than their male attackers, a high level of sensationalised attention is paid by the media, and quick justice is delivered by courts. However, cases in which the female victims belong to a lower caste-class strata than their attackers do not catch public imagination with as much vigour. We understand this through the concepts of Anuloma and Pratiloma marriages that the Smritis and Shastras, the ancient Hindu law books, define.
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The word 'Nirbhaya' automatically triggers the memory of the gang rape in December 2012 of a paramedical student by six men in a moving bus in New Delhi. The rape was extremely brutal and the victim eventually died, after receiving medical treatment both in Delhi and Singapore. All six accused were arrested within six days of the incident, with four arrested within two days. Inside the Lok Sabha, Parliamentarian Sushma Swaraj asked for those accused of the rape to be sentenced to death immediately, also within two days of the rape. The outrage at this rape, the horror of how susceptible women in urban areas are to assault and the brutality of the violence the victim was subjected to, shook the nation, with raging protests across the country asking for stronger rape laws.
“Where the female victims are from higher caste-class strata than their male attackers, a high level of sensationalised attention is paid by media, and quick justice is delivered by courts. However, cases in which the female victims belong to a lower caste-class strata than their attackers do not catch public imagination with as much vigour.
The incident eventually led to the setting up of the Justice J.S. Verma Committee to reform criminal law and the subsequent amendment of the Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act, establishing fast-track courts for sexual harassment cases and increasing the punishment for sexual violence. All four convicted of rape in the case were sentenced to death by the trial court in September 2013; this was confirmed by the Delhi High Court and the Supreme Court. The convicts were eventually hung to death in March 2020. This case received immense media coverage, with the Delhi High Court allowing international and national news outfits to report on the proceedings of the case in the trial court.
In August 2013, a 22 year-old photojournalist was brutally raped by four men at Shakti Mills, Mumbai, where she had gone on an assignment with a male colleague. Her colleague was tied up nearby by the men while she was raped. The journalist was forced to clean the area where she had been raped by the men and they took photos of her while they raped her, threatening to circulate the pictures on social media if she complained to the police. The four men accused of her rape were found and arrested by the police within six days. According to a documentary film made on the investigation by the Mumbai police, 20 police teams were formed, involving 12 crime branches in the city, to search for the accused. A member of the National Commission for Women also met the journalist at the hospital where she was recuperating, soon after her rape. The accused were convicted of rape within six months of the incident by a Mumbai sessions court, with three of them sentenced to death as they were found to be repeat offenders, and two to imprisonment for life. All four men were from lower-case or Muslim families; one was arrested by the police from his home in a slum – he was a vegetable seller; another was found sleeping at a video club in another slum (typically, places like video clubs in small chawls and slums turn into places where one can rent space to sleep in the night for a nominal rate, as depicted in the documentary film Cities of Sleep); the third lived on a footpath and did odd jobs for a living; the fourth lived in a single-parent home.
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In September 2006, the Dalit Bhotmange family was brutally murdered by a mob from their village of Kherlanji in Maharashtra. The violence was brutal and sexualized. The family was stripped and beaten. The women were raped, while the young men's genitals were mutilated. The incident was followed up only by Dalit groups and activists. A nexus of shoddy government prosecution and narrow-minded judiciary declared the unspeakable crime as not a caste atrocity, and there was no sense of outrage in the media or in feminist circles.
In December 2015, a 14 year-old Dalit girl, the daughter of safai karamcharis, was raped by her neighbour in Delhi. After her family managed to file a first information report, they were attacked by the relatives of the accused and asked to withdraw the complaint. They persisted with the case, and it finally went to court in May the next year. Before the court hearing, the victim was kidnapped, raped and made to drink acid by the accused, eventually leading to her death. In blatant violation of procedure, the accused had not been arrested till that point. A case was also not filed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, in spite of this being a clear case of caste violence.
“An anuloma union, where the man belongs to a superior caste to the woman, is acceptable as the woman is supposed to take on the caste of her husband, and improve the caste ranking of herself and her progeny. On the contrary, pratiloma, where a lower caste man has sexual intercourse with an upper caste woman, was an abhorrent criminal act.
There are innumerable cases in which the victim's journey to justice has proven fatal. In July 2016, a Dalit college student was gang-raped by the same five men for the second time in three years in Rohtak, Haryana. Three of them were upper caste, while the other two were Dalit. Two of the five were let off on bail in 2013, after they had been arrested for her rape the first time, in Bhiwani, Haryana. The families of the accused men also tried to pressurize the girl's family to withdraw the case, offering money in exchange. In order to pursue the case, the family had to move to Rohtak, where it was safer for them to live, away from their daughter's upper caste rapists who were constantly threatening them. Her family said that she was raped the second time around because she refused to withdraw her case. They caught her alone when she was going to enroll in her second year of college.
In March, 2016, 17 year-old Delta Meghwal, a Dalit student from the village of Tromohi in Rajasthan, was found dead in the water tank of the educational institution she was studying at. Earlier that month, Meghwal had called her father and told him that she had been raped by the Physical Training coach of the institute in his room. She had been sent there by her hostel warden to clean it – something which she was clearly being made to do by virtue of her caste. Within a few hours following her rape, Meghwal and the PT coach were made to tender a written apology, stating that they had been 'caught' having consensual sex.
In a rare victory, this case was won by the victim's family and their lawyers after a long struggle in October 2021, as the accused teacher and the wardens were sentenced to rigorous imprisonment.
While the cruelty with which women are treated in this country is startling, societal responses vary in differing rape cases. While the rape of Nirbhaya and the Bombay journalist elicit horror and outrage in middle class urban enclaves and media, the rapes of Dalit women and children hardly creates a stir. Why this difference?
We argue that certain rapes catch the horror of the nation at a high scale of sensationalism because of the caste and class status of the parties involved; the female victims are from higher caste-class strata than their male attackers. Cases in which the female victims belong to a lower caste-class strata than their attackers have not caught public imagination with as much vigour. The origins of this can be found in the ordering of sexual desire upon caste lines.
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The sexual order within caste patriarchy can be understood through the concept of Anuloma and Pratiloma. Caste order expects strict endogamy, that is, marriage within the same caste and sub-caste, blessed by kinsmen and God, leading to legitimate children and heirs. However, there are exceptions, which can be explained through the concept of anuloma and pratiloma.
“The sexual economy of caste is complex; one the one hand, it prohibits all men from viewing all women as potential sexual partners. Yet on the other hand, it also gives upper caste men the right to enjoy lower caste women. Knowledge of this is a 'public secret,' normalized as privilege by the upper castes and experienced as a shameful secret by victims.
Anuloma/pratiloma is a system of exceptions: a system of sexual access between men and women across caste boundaries. Within this system, endogamy signifies honourable marriage; anuloma denotes permissible sexuality, whereas pratiloma is a crime.
An anuloma union, where the man belongs to a superior caste to the woman, is acceptable as the woman is supposed to take on the caste of her husband, and improve the caste ranking of herself and her progeny. Hence, where an upper caste man had sexual relations with a lower caste woman, it could lead to marriage if the man so wished. Marriages and conjugal relationships of this kind are noted in the epics. Here, children were considered legitimate, though treated as a lower strata population. For instance, Vidur, the wise man in the Mahabharata, was called Dasi putra (son of a female slave), as he was a son of a nobleman born to a slave. While the nomenclature dasi putra was used to humiliate him, he was indeed accepted as a half-brother to King Dhritarashtra and occupied a seat in the royal court.
On the contrary, pratiloma, where a lower caste man has sexual intercourse with an upper caste woman, was an abhorrent criminal act. Punishment was death or ex-communication, leading to virtual social death. Pratiloma marriage was the most feared and abhorred in India as it violated caste normativity. Children of this union, even if it was consensual, had no place in society. They would be called the pejorative term 'chandals' and live at the funeral ground.
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We will apply this principle to sexual violence in contemporary India. Historian Anupama Rao argues in her 2009 book 'The Case Question: Dalits and the Politics of Modern India' that caste is a result of sexual regulation. Sexuality flows through channels of marriage, extra-marital desire, violence and abuse. Marriages are managed through the formal circuit of endogamous arranged marriage, ensuring caste respectability. Desire and violence both run via informal sexual circuits and are permitted to transcend the endogamy rule as long as they are between upper caste men and lower caste women. In this schema, lower caste women are sexually exploited through situations ranging from quasi-consensual relationships to direct abuse by upper caste men – routinely and as a matter of right. When lower caste women refuse to subscribe to their sole identity as sexual labour for upper caste men, they are punished more, in an attempt to assert the hierarchy of caste patriarchy. For instance, in the Khairlanji massacre, the daughter of the Dalit family was pursuing higher studies and was seen as a threat.
Caste patriarchy reserves opposite roles for upper caste and lower caste women. Upper caste purity is maintained by keeping women inside homes, away from the public gaze and restricting their movement. Upper caste women form the pivot of caste purity, and are thus the subject of moral panic. They are unavailable and cannot be touched for pleasure or desire, as noted by feminist historian Uma Chakravarty in her 2003 book 'Gendering Caste: through a feminist lens'. Their sexuality is stringently controlled, and lower caste men are institutionally prevented from having access to them. (Brahmin widows, however, have historically been subject to rape within their families as they were considered open to sexual access of all men within their household. Mahatma Phule even opened an orphanage in Pune for their offsprings.)
Any transgression of this rule is severely punished; for instance, in 2014, Nitin Age, a 17 year old Dalit boy in Kharda village in Ahemednagar district of Maharashtra was tortured the whole day and then burnt alive at a brick kiln after he was seen 'talking' to a Maratha girl by her brother. In 2017, the criminal court released all 10 accused in this case, as most witnesses turned hostile. There was no fast track court or in camera trial despite promises by the state government to Dalit leaders.
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In many similar cases from other parts of the country, Dalit and Other Backward Class communities have heavily paid for 'acts of transgression' of their young men. This includes consensual desire or affection between lower caste men and upper caste women. For instance, as Rao argues in her book, the naked parading of Dalit women in Shirasgaon in Maharashtra in 1960 was 'provoked' by a Dalit man orally suggesting his desire towards a Maratha (upper caste) woman.
“Out of the 500 women interviewed for this book, only 13 per cent managed to get their cases registered, and only a miserable 0.1 per cent (that is, one in a thousand) received justice. Police actively blocked 17.5 per cent of women who reached the police station.
Lower caste women, on the other hand, are assigned 'free' sexuality for the purpose of fulfilling the sexual desires of dominant caste men. Challenging this assumption and expectation is met with abuse. Thus, the sexual economy of caste is complex; one the one hand, it prohibits all men from viewing all women as potential sexual partners. Yet on the other hand, it also gives upper caste men the right to enjoy lower caste women. Knowledge of this is a 'public secret,' normalized as privilege by the upper castes and experienced as a shameful secret by victims. In this manner, sexual violence is caste violence because it operates as the prerogative of upper caste men, notes Rao in her book.
The anthology 'Dalit Women Speak Out: Caste, class and Gender Violence in India' combines anecdotes from 500 Dalit women from across Bihar, Uttar Pradesh, Andhra Pradesh and Tamil Nadu focusing on the unique patterns of violence that Dalit women face. Threats of rape and sexual assault are hurled at Dalit women in order to instil fear and gain control over their bodies and labour. Different categories of violence – verbal, physical, sexual – are not watertight and often accompany each other; for example, verbal abuse followed by, or along with, sexual or physical assault.
The culture of impunity and silence wherein men believe it their right and women their fate, has been fostered further by the law enforcement agencies that protect the offenders and silence the victims. Out of the 500 women interviewed for this book, only 13 per cent managed to get their cases registered, and only a miserable 0.1 per cent (that is, one in a thousand) received justice. Police actively blocked 17.5 per cent of women who reached the police station.
Caste and gender politics operate as class politics as well. Lower caste women do not have an option of being tucked away at home. Poverty drives them to be out in the open, and their labouring bodies in the fields and markets are always in the public gaze, where they become objects of male desire. These women are otherwise treated as untouchables, except when it comes to sexual desire. Women's studies professor Anagha Tambe writes of the practice of Zulwa, by which Dalit devadasis are exploited by upper caste men. Devadasis are forced into informal sexual liaisons, and are not allowed to seek stability by marrying 'mortal' men. This means that upper caste men can sexually exploit them but not take responsibility of their upkeep and not recognise children born out of their liaison.
Ultimately, upper caste men control the sexuality of both lower caste and upper caste women, as lower caste men are deemed incapable of controlling the sexuality of their women. In this manner, while women do not actually form a part of the sexual economies of caste, their sexualities are placed in its hierarchy nonetheless.
Urban living changes the nature in which caste is performed. Caste divisions become less prominent and enforceable. In cities, there is a sharing of resources and infrastructure such as public transport, movie theatres, and restaurants, among other things, among people, irrespective of caste. It would then seem that within urban settings, class takes over as the only differentiator. Yet, while this is true of sharing public spaces, the situation changes in private settings. Inter-caste marriages are still few in number, lower caste people dominate 'lowly' occupations, and we see very few Dalit women occupying positions of power in government services or in corporate markets.
In this background, the way that pratiloma rape is presented in popular discourse and the media perpetuates the 'othering' of lower caste communities. The lower caste 'rapist' becomes an indicator of the 'immorality' of his entire community, setting precedence for prejudice against people of a lower caste-class status as sexual predators. This manufactures the greater fear of lower class-caste men that upper class caste women have. In this manner, lower caste men are villainised as perpetual perpetrators of rape, which gets reflected in their treatment from the legal system.
Women's rights lawyers Flavia Agnes, Audrey D'Mello and Persis Sidhva compare the Shakti Mills (photo journalist) case with another case at the same time wherein four rich men had raped the teenage daughter of a domestic servant. The little girl received no help from the police or lawyers to prove her case and all her rapists were left scot-free, whereas the Shakti Mills offenders became the popular face of the rapist – living in slums, uneducated, unemployed and uncouth.
That said, we are ourselves horrified by cases such as the Nirbhaya and Bombay Mills gang rapes. Not just for their brutality, but also because the probability of pratiloma rape has increased over time. This means that the protection of caste-class positionality that some women were able to receive so far is becoming rarer.
What are the reasons for this shift? We propose that in the past two decades, 'westernised young women' have become the 'folk devils' in Indian society. They are being blamed for transgressing the boundaries of good Indian womanhood and carry the brunt of tarnishing Indian culture. They are lashed out at in societal discourse and have even been physically attacked by the right wing guardians of 'Indian culture.'
“In the past two decades, 'westernised young women' have become the 'folk devils' in Indian society. They are being blamed for transgressing the boundaries of good Indian womanhood and carry the brunt of tarnishing Indian culture.
There is more than culture at play here. It is also economics. A majority of Indians are experiencing marginalisation and deprivation, just as the country seems to have gone global. The upper middle class that has gained from the 'India Shining' model is flaunting its new affluent lifestyles. Expectedly, there is unrest and jealousy in response to this in an increasingly divided society. This unrest is often expressed as antagonism towards women expressing aspects of an upwardly mobile lifestyle, through their dressing, lifestyle and employment. Increasingly, women are also beginning to earn and accumulate their own wealth, instead of being mere carriers of their husbands or fathers' wealth. Women are also spending their own money, and without permission or apology, on the consumption of luxury items, ranging from alcohol to cars, all of which were earlier domains reserved for men. All this makes them their own masters rather than subordinate players.
Many other social groups have also experienced a violent backlash as a response to their heightened economic and political status. For instance, the sexual mutilation and murders of the Dalit Bhotmange family in 2006 in Khairlanjee was triggered by the malevolence that a Dalit family was doing 'too well.' In Gujarat, before the 2002 carnage, communal propaganda presented the Muslims as economically and politically more prosperous than the corresponding Hindu population. Women pay a high cost in these conflicts – as their bodies become targets of attack and humiliation.
All women live with the fear of sexual attack, a fear that restricts their movement, choices and autonomy. Women growing beyond their station, gaining 'too much' money or freedom are, many times, cured by violence within the patriarchal societies. Dalit women face the reality of sexual attacks much more, as part of an older system of caste privilege but also due to the new wrath towards their changing status in politics and economics. Here, we understand and explain contemporary sexual assault through the system of anuloma/pratiloma that orders sexual access within caste patriarchy.
(Dr. Sameena Dalwai is a Professor of law at Jindal Global Law School, O.P. Jindal Global (Institution of Eminence Deemed to be University). Amala Dasarathi is a lawyer and legal researcher. The views expressed are personal.)