AFORO ASCENSO – DESCENSO

In domestic violence debates the subject seeking legal redressal is imagined as an ideal female victim who has been severely wronged (Morrison and Davis, 2005). In effect the victim subject has found favour in the VAW discourses (Krishnadas, 2006). WUR however find themselves occupying an uneasy position in victim centered debates. Their

moral choices seem to take away from their victimhood. Particularly in the context of human rights and law, the victim subject is the one who seeks rights as she is the one who has had to deal with the worst that has happened (Merry, 2003; Krishnadas, 2004). This has enabled women all over to speak out about the abuses that have otherwise been hidden or ignored in the human rights discourse (Kapur, 2002). Women’s conferences like ‘Global Tribunal on Violations of Women’s Rights’ held in the UN World Conference held in Vienna in 1993, have provided a means to give voice to the victims in the international community. Video links were used to share horrifying and graphic personal testimonials that had been made public and are told by the location of the victim subject (Bunch and Reilly, 1994). These testimonials provide a concurrent location for women from all over the world to speak about similar experiences thereby sharing legal subjectivities. However, it still builds around a victim subject who has been subjected to untold violence and the location was still that of a victim subject. The fear is often that the different subjectivities and their fragmentation will deprive women of the power to claim for rights and for a broader global recognition of claims for truth (Kapur, 2002).

WUR form a category that defies the essential notion of an ideal legal subject claiming redressal. They have a multi-layered legal subjectivity which the law is forced to take notice of. In this sense they defy the essentialism that sometimes plagues feminist legal debates. This essentialism assumes that ‘women have a coherent group identity within different cultures…prior to their entry into social relations’ (Mohanty, 1991: 7; Kapur, 2006). The articulation of the ideal victim subject is based on gender essentialism as the

victim subject relies on a universal subject that sometimes cannot accommodate a multi- layered subjectivity. WUR find themselves outside this ideal because of their transgressive identities and their multi-layered subjectivities. The case against constitutionalism and against universal norms is that they marginalise especially as regards the impossibility of appealing to women as a category without other identities (Menon, 2004). The feminist movement is not under the illusion that the law is a transformative tool (Gandhi and Shah, 1998). Legal movements are more successful when they depend on a broader strategy aimed at the achievement of public awareness and legitimacy along with short term goals (Merry, 2006).

Opposing this pessimism is the view that law especially family law can ensure gender justice for women in India despite problems in accessibility (Parashar, 1997). It has been debated that focusing on how family law can help to end the oppression that the compulsion to marry places on Indian women and by doing away with the colonial construct of the religious nature of personal laws/the development of a uniform civil code can enable gender justice (Parashar, 1997). Many are sceptical that it is possible or desirable to reconceptualise marriage as a partnership within Indian family law. The questions then are whether such secular individualistic law is suitable for a community oriented society, whether legal reform works as a feminist strategy or whether legal reform is the merely the part of a larger strategy for gender reform (Parashar, 2007).

The location of feminist legal theory ‘within a dominant and phallocentric legal centralist paradigm’ has been subject to challenge urging feminists to move out of the patriarchal, legal framework ‘towards a feminist theory of legal pluralism’ (Manji, 1999: 435). Drawing upon theorists of the African state, Manji observes how women changed their relative position within state and non-state law through their physical mobility. As women migrated from the rural areas to the township ‘women encountered state law as a tool of social control’ which ‘necessitated the scope of state intrusion in their lives’ (1999: 444).

The logic of liberalism can be critiqued using post-colonial feminist theory which refuses to subscribe to the notion that more rights result in more freedom and equality (Kapur, 2002). In the context of law and political activism, it can be argued that the discursive struggle of the colonial past cannot be ignored in trying to understand the post-colonial society (Kapur, 2002). Liberalism perpetuates the subordination of subaltern groups by insisting on the universal notion of rights. In her analysis of the conditions of Indian women and marginally situated sexual subalterns, Kapur (2002) also interrogates the broader frame work of liberalism and western feminism. In the process of defining victims of the third world, it tends to offer legal protection on essentialist presumption of gender, culture and agency. Thus victimisation is perpetuated rather than remedied. Sexual subaltern is used to identify the law as a sight of domination and resistance where the dominant hegemonic culture other’s the sexual subaltern (Kapur, 2002). She argues that the law is not just an instrument of transformation and empowerment but also a

means of excluding others. She identifies the multi-layered post-colonial subject who defies the dictates of liberalism. She identifies that the public private divide in India which was partly the result of the colonial legal regime and how it informs the debates on sexuality and the identity of the nation state.

The victimisation rhetoric can be to expose the focus of the global feminist movements on VAW and the image of women as victims (Kapur, 2002). The problem with the focus on the victim subject used by VAW campaigns is that it perpetuates gender cultural essentialism. The post-colonial feminist argument is that the centre periphery cultural model continues to stereotype essentialist notions of the victim subject (Spivak, 1990; Mohanty, 1997). Post- colonial writers have thus challenged monolithic cateogaries of the native victim subject as an imperialistic agenda (Said, 1978; Bhabha, 1983; 1990; Spivak, 1990).