September 10, 2007

The Long Journey: Moving from Morality to Justice

From ancient Hindu myths to the Bollywood masala movies, justice has always meant the triumph of ‘good’ over ‘evil’. The multi-talented ‘hero’ wins over the ever-scheming and notorious ‘villain’. Perhaps, the concept of poetic justice has been transferred from ancient epics like the Ramayana and the Mahabharata to give the masses their money’s worth of entertainment. But what exactly does justice mean in our real lives? Is it what the dictionary generally defines as that which is morally right or fair? And how does one define morals or morality in the first place?

The dilemma begins here and sees no end. An individual’s morality controls their understanding and, hence, their life and the way they perceive family, marriage and community. As a lawyer, I’ve had women clients, who after facing violence and abuse, had no idea of what justice meant to them. Their notion of justice ranged from ‘punishing the perpetrator’ to ‘saving a violent marriage’ to managing ‘a dignified and safe exit from a violent domestic relationship’. In these women’s lives, morality was largely based on their particular perceptions of marriage, family relationships and their roles within the family. Their concept of justice also varied accordingly.

More disturbingly, justice through legal means was a scary and alien idea to them. Is it because access to law within our system is difficult and problematic, marred with corruption and prolonged delay? Or is it because law, in its content and procedure, fails to understand women’s issues and experiences?

The law’s approach to women’s issues is probably most obvious when we look at laws relating to sexual offences. For example, in the Indian law on sexual assault, the issue of morality is related to chastity, and the importance accorded it often assumes illogical proportions. Chastity is usually understood as ‘purity’ or virginity. The judiciary has had a history of advocating and upholding this sexually conservative morality. The notion of being chaste and sexually conservative is the yardstick while dealing with sexual violence. Judgments are based on notions of the ‘good non-resistant woman’. Notions of ‘good’ woman, ‘good’ wife and ‘good’ daughter affect popular understanding of crimes against women. Subsequently, there is also a parallel image of the ‘bad woman’. Naturally, a woman who faces violence does not want to talk about it. She would rather not risk the latter label.

Law is not the only way in which we can understand the role of morality in our lives — religion, education, customs are also important areas — but it has been an important influence on the issue of morality. Another issue is that in India, laws are mainly protectionist. They seek to protect a woman from abuse and violence — and usually only a ‘good’ woman is deserving of such protection. Offences like sexual assault, adultery and marital rape are coloured with assumptions on behavior and conduct. For example, behaving in a culturally ‘provocative’ manner or dressing in ‘non-Indian’ or ‘western’ attire is considered an invitation to sexual assault. Similarly, sexual intercourse in marriage cannot be rape since it is a legitimate and ‘sacred’ conjugal right of a spouse and outside the scope of criminal law. A wife is presumed to have given consent to her husband for sexual intercourse and, therefore, there cannot be a situation where that consent can be revoked.

Against the backdrop of such legal realities, where is the space to uphold what is ‘fair and right’ against what is ‘unfair and wrong’? How do we decide what justice we want for women and whether what we get is a correct understanding of justice?

There has been a constant tussle on this issue between feminists and law-makers. One the one hand, the legislature is keen to frame laws which help women only when they are ‘good victims’ and on the other hand, feminists demand legal reforms which negate notions of sexual morality, discard concepts of modesty and chastity, and in so doing, redefine justice.

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1 comment to The Long Journey: Moving from Morality to Justice

  • Interesting post! The way “morality” defines and influences the law is something that never ceases to fascinate (and disgust?) me. With regard to numerous bans, judgments and decisions, this is the one concept that comes up again and again. And yet, what is the solution? It’s so frustrating.

    I had written a post on this during the Vadodara incident on my blog. Though not a feminist issue, I think the core battle is the same.

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