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High Court’s Ruling In The Jindal Uni. Case Is A Sickening Show Of Patriarchal Policing

A recent order by the Punjab and Haryana High Court suspending the jail sentences of the three O.P Jindal Global University students accused of repeatedly raping a fellow student has caused an uproar in the University’s campus. Being a part of the student community, I thought it was imperative to examine this order and understand the nexus between the Indian idea of morality and justice, which the judiciary repeatedly appeals to and sometimes bases its decisions on.

Being a part of the student communit, I thought it was imperative to examine this order and understand the nexus between the Indian idea of morality and justice, to which the judiciary repeatedly appeals to and sometimes bases its decisions.

In the order, reference has been made to the prosecutrix smoking cigarettes and agreeing to drink beer. The order also refers to a ‘perverse streak’ displayed by the victim since she agreed to purchasing a sex toy as suggested by the accused. To the young students of the University, it seems incredibly ludicrous that the possession of a sex toy changes the fact of inhumane mental and physical assaults were carried out. It’s beyond me why the Indian judiciary would even include such facts in its judgment which is publically accessible.

The order does not only assassinates the victim’s character but assumes a parens patriae character and almost changes the nature of the accused persons to that of being a victim. It says that if these young minds are confined to the jail for an inordinately long period, it will deprive them of their education and an opportunity to redeem themselves.

The court even grants the accused person leave to go abroad in case they want to pursue higher studies. Why has the Court undertaken such lenient attitude when it is dealing with such heinous crimes. It is almost as if after examining the case, the character of the victim has served as a mitigating factor in the punishment which must be given to the perpetrators of the crime. The court cites the lack of gut-wrenching violence which usually accompanies or precedes such an act of rape.

The victim has been subjected to non-consensual sexual acts and was forced to be a slave to the whims and fancies of the accused persons. Reference made to her buying condoms is not a sign of assent by the victim, but blatant coercion and only adds to the atrocity suffered by the victim.

Understanding The Court’s Definition Of  ‘Modern Constitutional Morality’

In the recent Triple Talaq judgment, the Supreme court of India famously held that religious practice cannot trump modern constitutional morality. Hence it is incumbent upon us to examine what constitutes this ‘modern constitutional morality’.

Dr B.R Ambedkar said that “The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality.”

Part III of the Indian Constitution grants the citizens various important rights such as freedom of speech and expression and prohibits discrimination on the basis of sex or religion. The right to life under the Constitution of India also encompasses the right to live with human dignity.

The term dignity as interpreted in an Andhra Pradesh High Court judgment examining the constitutionality of beauty contests stated that such contests offend the dress norms or expose the female body in a manner, which offends female modesty and ends up subjugating social and moral values. Thus they are legally prohibited. The idea of social and moral values is too broad in its ambit. India is a vast country with diverse cultures and people belonging to different socio-economic backgrounds. This appeal in the Constitution to vague terms such as public morality and modesty creates more problems than it solves.

Even while the Supreme Court upholds the equality of women, it finds it necessary to find a basis in Indian culture. In the case of Shabnam and Ors. Vs State of U.P the court said

“Indian culture has been witness to for centuries, that daughters dutifully bear the burden of being the caregivers for her parents, even more than a son. Our experience has reflected that an adult daughter places greater emphasis on their relationships with their parents, and when those relationships go awry, it takes a worse toll on the adult daughters than the adult sons.”

Many Judgements Are Trying To Pin The Blame On Women

Statements appeal to a transient idea of Indian culture. Instead of only basing its judgments on the statutory provisions, Indian courts are increasingly bringing a moral perspective in their rulings.

Even in the cases of rape whenever the prosecutrix’s honesty has been questioned, the Supreme Court repeats the statement that in Indian culture, a woman–victim of sexual aggression would rather suffer silently than implicate somebody falsely. Any statement of rape is a highly humiliating experience for a woman, and until she is a victim of sex crime, and she would not blame anyone but the real culprit.

Instead of appealing to the nature of the offence committed, weight is given to a ‘ghost culture’ which cannot be pinned down. A woman must not be made a goddess, because she is only a mere human possessing faults just like the other. Such ideas of women created by the judiciary may benefit women in some cases but hurt them in other.

In the case of Amit Beri and Anr. Vs Smt. Sheetal Beri, the Allahabad High Court, while deciding the custody of a child paid undue attention to the fact that the mother was a frequent visitor to nightclubs. It is a known fact that nightclubs exist, and people are in the habit of visiting them. Even though the court acknowledged that the mother earned and was financially secure to take care of the child, the case was decided against her. The defence adopted by the mother stated that she only attended ‘family parties’. It is absurd to imagine that a grown woman has to give reasons for her independent decisions and is only an example of internalising misogyny.

In another case, the court emphasised on the value of joint family and brotherly harmony which has been the Indian culture. In a case against a Tamil film, asking for the removal of U/A certificate granted to it, the counsel for petitioner argued that a scene wherein two women in towel, with one smoking a cigarette and giving friendly advice to her friend on how to win over a man, is a degradation of culture and reeks of moral depravity. He deemed this to be especially dangerous for the female audience to watch. Such arguments continuously being made by advocates who must be beacons of social change and justice in society is abhorrent.

In an interesting judgment by the Supreme Court, a connection between the Constitution and Gita is also made. It reads as follows-

“For Arjuna, the freedom given to act as he wished to, was an illusion; acting in conformity with the instructions of Krishna a bounden duty. This message has perceptibly percolated down as part of Indian Culture, philosophy and behavioural setting the tenor in the Constitution for interaction between the high constitutional authorities and institutions. One needs only to be aware of this thought with which the Constitution is soaked.”

In the Punjab and Haryana High Court order the Court refers to the immature and nefarious world of youngsters and reprimands both the victim and the accused of dragging themselves and their families into an abysmal situation. This statement dilutes the seriousness of the crime; it is almost as if a boy has failed his exams and also did not let his fellow student do well because he threw water on her. The court must realise that it is not a principal in charge of ensuring discipline in a school, but a place for melting out justice according to the Constitution and statutes of the nation.

This is no tragedy as said in the order, but an intentional criminal act which must be punished according to the law of the land without reference to irrelevant facts.

The same youth who have been accused of being voyeuristic and promiscuous are the ones fighting for justice for the victim.

This post was previously published here.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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