There are many ways to think about the ‘state’, and its relationship with individuals and groups who have been historically pushed to the margins. My purpose here is to think about the relationship between violence in universities (in terms of gender, sexuality, caste, ethnicity, religion, class and a combination of any) and the judiciary, specifically the functioning of courts. In this essay, one does not enter the theoretical issues involved as to whether the judiciary is part of the state or not. [i]What it does instead is focus on some recent events in the Indian context that raises difficult and contentious issues entailing the courts and gender violence in educational institutions.

The IIT Guwahati Rape case in 2021, in which the legally guilty is now expelled, witnessed a high court order in which it granted bail to the student, in a non-bailable offence simply because he was an IIT student, significant for the betterment of the future of this country. It was believed that he must not be devoid of the resources needed for his education, and necessary action was withheld. PhD scholar Deepa Mohanan fought a 10-year long battle, and only in 2021, after an indefinite hunger strike, the matter reached mainstream media. This event portrayed the caste-based discrimination and atrocities which are deeply embedded in Indian academia.

Now at the beginning of 2022, we witness resistance expressed by several Muslim women students who are being denied entry into their educational institutes for wearing the hijab. While the High Court’s decision is still awaited in this matter, it did express its responsibility to adhere to the constitutional fundamental right to practice the religion of choice in public. Meanwhile, India has witnessed horrific incidents of forcible removal of hijab of young girls. [ii]

Courts have often supported and interpreted constitutional morality in their bench and committee decisions, but more often than not, they have also upheld dogmatic judgements in cases in which justice was to be delivered amidst social, political and historical complexities.

 When it comes to the relationship between gender and state, Rajeshwari Sunder Rajan (2003) has argued that even with dismal failures and problematic constructions of gender by state and its tools, various contingent factors define the relation between gender and state. To get a concrete picture of this relation, the state, instead of being conceived as an abstract concept, must be conceived in its institutional and historical contexts. The relation between women and various state institutions such as courtrooms, bureaucracy etc. is negotiable and not fixed, depending upon various factors. She states that the outcome of these negotiations often also depend upon the ideologies of political leaders and regimes, personal attitudes and beliefs of individual bureaucrats, officials and judges, and the general political climate of an area or district. These contingent factors often form confusion and contradictions (Rajan 2003, p. 3). The era of the 1980s witnessed immense resistance which modified laws on sexual and domestic violence. Moreover, a powerfully drafted Act such as the SC and ST Prevention of Atrocities Act 1989, came to life in that era too. However, for Rajan, the ‘state’ is – laws of governance, constitutionality and sovereignty (Rajan 2003, p. 5), and this is why the state has so many contradictions. If the state shows its existence in different ways based on contingent factors, where do we exactly locate ‘violence’ by the university?

While thinking about marginalized sections and their engagement with the state, it is methodologically necessary to keep ‘constitutionality’ separate from ‘state’. It is because while legal codes and bureaucratic structures in post-independence India have been direct legacies of the colonial state, the constitution is not. According to Kalpana Kannabiran (2012), one must note that in the post-independence era, our legal codes got tied with the ‘new spirit of the constitution’. This spirit was a result of an amalgamation of social movements – women’s, peasants, anti-caste, national freedom struggle etc., which reiterated the many voices which thrive in the land of the sub-continent.

The constitution with its set of rights, directive principles and amendments lay a ground for this spirit of resistance which builds the moral framework for the same. Kannabiran centrally emphasizes on combining Article 15 of the Indian Constitution with Article 21 of the same (Kannabiran, 2012). The former prohibits the state and the citizen from discriminating only based on religion, race, caste, sex, place of birth or any of them, and the latter recognizes the right to life and liberty to all. It is only when an act of discrimination is viewed not as an individual, an isolated act which is ‘morally’ (and therefore legally) threatening or bad, but as a force which disrupts an entire life and existence, will ‘non-discrimination’ and laws that address the same, gain full force and strength.

Kannabiran compliments this concept of ‘non-discrimination’ with Dr Ambedkar’s understanding of the ‘habit of discrimination’ (Kannabiran, 2012). A term like ‘habit’ connotes dispositions and everyday matters of body and behaviour. In a deeply stratified society, the very body with its dispositions finds itself habitually adhering to discrimination. Kannabiran’s concept of ‘non-discrimination’ therefore, draws a continuum from general historical-political forces to concrete bodies habitually involved in acts of violence. When ‘rights’ are viewed in isolation, claims such as – every individual is equal in the eyes of law – calls out for a liberal understanding of the individual. In a deeply stratified society, it does not work, and that is why the ‘individual’ must be viewed in his/her/their own right, through the lens of ‘non-discrimination’ in which his/her/their very life thrives.

The constitution though does have its limitations. Kandalla Balagopal (2001) argues that the constitution has provisions that recognize our rights to protest, carry out our processions, freedom to publish and circulate cheap magazines, right to organize public hearing and access to relevant information, right to privacy and so on, but ultimately, social transformation towards a better world always rests in the hands of the bureaucratic bodies. It is never rested in the hands of the people themselves (Balagopal, 2001). Balagopal (2006) asserts that one cannot expect courts and legal codes in isolation, to deliver justice. This is not only because they are structural, a direct legacy of the colonial rule, but also because their essence lies in maintaining ‘public order’. In a deeply stratified society like ours, their essential role then becomes to protect the propertied from the property-less (Balagopal, 2006).

When we think about ‘ultimate’ results in justice, vis-à-vis events that take place in institutes of higher education, it is always rested more with Internal Complaints Committees, Courts, and government orders themselves. With so many structures involved, Rajan’s state with its contradictory effects portrays itself fully. For instance, government bodies such as state educational development committees do have the authority to mandate uniforms, in the name of which clothes that are worn by women and men by their choice, can be prohibited. Whether it has dogmatic and discriminatory connotations or not can be socially articulated, but under the ingenious garb of selective secularism, the state bodies will assert their authority which has been seemingly accorded to them. Similarly, Internal Complaints Committees in the name of evidence collection will pose questions that subject the complainant to various forms of victim-blaming. And college authorities will attempt to protect faculty members for their tenure and their rankings. All of this must not come as a surprise. I am not suggesting that the constitution is always limiting in its morally mandating powers. I am suggesting that when faced with a violent event in which state bodies and constitutional morality seem to be taking disparage stands contradicting each other – the violence and its possible resolution should be understood in its socio-political context.

Violence does not exist because of the state alone, because of the individual alone, or because of the bureaucratic bodies alone. It exists as a continuum that exists in the ‘habit of discrimination’ extending from interpreting the constitutional morality by courts and administrative bodies selectively, and because individuals have been party towards extending the same through their social, historical and dispositional existence. Resistance in these matters must be taken as a foundation to be able to understand the continuum. If the vocalization of resistance works in tandem with constitutional morality and stands against habituated bodies that enable discrimination towards another human being – often the marginalized, then it carries the scope for enlivening the constitutional morality. It either pushes the law to act or get restructured, to finally intervene into the social order in the form of justice.

References:

Balagopal, K. (2001). Of Capital and Other Punishments. The Economic and Political Weekly, 33(38), 97-132. https://www.epw.in/journal/1998/38/prespectives-perspectives/capital-and-other-punishments.html

Balagopal, K. (2001). The Constitution and Social Movements. Indian Journal of Human Rights, 05(1), 187-194. https://balagopal.org/the-constitution-and-social-movements-indian-journal-of-human-rights-january-december-2001/

Kannabiran, K. (2013). Introduction: Liberty and Non-Discrimination – The Scope of Intersectional Jurisprudence. In Tools of justice: Non-discrimination and the Indian constitution (pp. 1- 49). Routledge.

Rajan, R. S. (2003). Introduction: Women, Citizenship, Law, and the Indian State. In The scandal of the state: Women, law, and citizenship in postcolonial India (pp. 1-40). Duke University Press.

[i] See https://main.sci.gov.in/constitution; https://www.jstor.org/stable/44306656

[ii] https://www.firstpost.com/politics/karnataka-hijab-controversy-indian-democracy-enters-uncharted-territory-of-grave-danger-10375051.html

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Anamika Das is currently pursuing a PhD in Sociology from the University of Hyderabad. Her research interest lies in understanding sexual violence in Indian public universities.