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A Challenge to Indian Feminism: Book Review

-- Farzana Haniffa

Nivedita Menon 2004, Recovering Subversion: Feminist Politics Beyond the Law, Chicago: Permanent Black, pp. 270.

Nivedita Menon's erudite and expansive exposition on Indian Feminist activism within the realm of the Law is an important contribution that historically and theoretically situates and critically evaluates the Indian Feminist Movement's engagement with the Law. It is also a polemic that argues against the need to utilize the law and legal reform to bring about changes in social practice that would reflect a fundamental feminist ethic. Menon brings in the current thinking on globalization, post coloniality and the different modernities experienced in third world locales, and places the supremacy of human rights and the rights discourse in contention with the historical specificities of the global south. She thereby mounts a resounding critique of the law and its grounding within liberal politics and interrogates feminist activism's attempts to find redress within such a system. She thereby also offers some fairly radical alternatives to prevalent feminist truths.

Menon's polemic is grounded in explorations into three separate realms of Feminist activism in India - the reproductive rights debate, the debate on sexual violence and sexual harassment in the workplace, and reservations for women. Menon situates the debates within the post colonial condition, and grounds them within the particular historical antecedents of Indian modernity and the consequent specificity of contemporary Indian politics. She persuasively points out that these conditions differently decide the contours of debates around categories such as the individual, human rights and democracy itself that have long been considered self evident universally taken for granted truths. By challenging such truths and through concrete illustrations of the consequences of feminists engagement with the law in India she argues that the emancipatory potential of engagement with the law and constitutionalism has been exhausted and that it would infact be inimical to a feminist ethics to continue to engage with the law.

I find Menon's work useful on two grounds. One is the challenge of her argument which I think is based mainly on a critique of the rights discourse, of globalisation and the erasure of difference; and secondly the manner in which her discussions are profoundly informed by, and in turn inform, the exigencies of feminist political practice in India. Her weaving in of varied theoretical positions to the discussion on the successes and failures of feminist political practice is an important and necessary intervention, and a must read for anyone engaged with feminist politics.

Menon defines the law as an arena of competing rights claims, and grounds her discussion on a critique of the rights discourse from a variety of fairly standard perspectives. For instance using Wendy Brown Menon points out that rights emerged hin modernity as a vehicle of emancipation from political disenfranchisement or institutionalised servitude at the moment of transition away from feudalism in Europe. It was also a vehicle that privileged an emerging bourgeois class through formal egalitarianism and universal citizenship. Conceptually the rights baring "individual" became a possibility only fairly recently in the history of Europe. An atomised disaggregating self easily differentiated from similarly disaggregated others was not as obviously available to thought before this time. It was also at this historical point that it was possible to locate the individual self within the limits of the body in opposition to an outside world. The outside world was then available to be conquered, colonized and commodified and as one that the individual could have rights to and about.

Reading McKinnon, Menon describes the manner in which feminists have come to understand the norm of the abstracted "autonomous" individual that is promoted by law as essentially male and thereby blind to the specificity of women's experience. By extension the law too is blind to the needs of women. Then Menon points to the need to incorporate the notions of community and responsibility into the argument about individuals and rights and keep in mind also the importance and perhaps still pertinent salience of "entitlement" that the rights discourse brought about in the first place. She also brings in the point that the historical processes that lead to the emergence of the individual in western societies, and western legal theory were not experienced in the same way by post colonial polities; that the desegregation of the individual did not take place in the same way or to the same extent within modernity as experienced by post colonial subjects. Therefore the rights discourse itself would be understood and would work differently in such different contexts. Additionally the language of rights according to Menon privileges states and their institutions. Implicitly rights claims call on the state and the law to uphold such rights. But in a world where the state and the law remains complicitous with specific class caste and gender interests the success of such a move can only be partial and contingent. An important component of Menon's argument against the law is also that in addition to its highly problematic discursive antecedents the law attempts to fix meaning in a way that does not allow for a reflection of the complexity of, say sexual violence, or the many ambiguities that underlie exchanges that are degrading to women but that cannot be unambiguously articulated within legal categories. Using Derrida Menon states that justice is marked by its singularity "a uniqueness that must always concern "individuals, irreplaceable groups and lives, the other or myself as the other in a unique situation. However, legal discourse attempts to value meaning only as generalities as norm or as rule that does not support the singularity of justice. I find little to argue with in Menon's historicisation of rights and find her allusion to the singularity of justice compelling.

As I stated at the outset I also feel that the value in Menon's work lies in the rich detailing and the empirical and theoretical grounding of her work within the struggles of the women's movement. In the chapter entitled Abortion : When Pro-Choice is Anti Woman, Menon deals with the conundrum that Indian feminists face when addressing the issue of the selective abortion of female foetuses and is an illustration of the richness of Menon's work. As opposed to the debates in the United States and the west more generally, access to abortions in India has had a different history to do with the state's population control policies. In keeping with the ideology that in the global south the reason for poverty is population growth the Indian state set in place a population control regime that included legalising abortion. Within this process population control policies of the Indian state have often been coercive, punitive and anti democratic. The Issue for Indian feminists has infact been population control policies that coerce women to control their fertility. It is within such a context that the legalising of abortions must be viewed, Menon points out, and clearly, not as a celebration of feminists success, or a triumph of progressive politics.

A more recent phenomenon mushrooming in the aftermath of developments in technologies like amniocenteses is the selective abortions of foetuses identified as female. In recent years Indian feminists found themselves in the position of arguing against the free availability of sex determination tests in a bid to halt the selective abortion of female foetuses. Menon points out that many of the arguments used for such a position are those that can be used against abortion itself. Infact Menon points out that in many ways arguments against selective abortion of female foetuses occupy the same terrain as those against abortion. For instance Menon points out (p77) that a women's group in Bombay filed a petition in the high court in 1986 arguing against SD tests on the grounds that such tests violated article 21 of the constitution - the right to life. Then, a Private Members Bill was introduced in parliament to amend the Medical Termination of Pregnancy Act that legalised abortion in the country. The amendment sought to empower the medical practitioner to refuse termination of pregnancy "if he or they have reason to believe that such termination is sougt with the intention to commit female foeticide. Both initiatives were opposed by the Forum Against Sex Determination and Sex preselection on the grounds that they restrict the right to abortion.

Menon argues that the right to abortion in India has little to say about women's reproductive autonomy and that it is almost always about population policies in the pursuit of economic growth. While women cannot be punished for having abortions Menon cites a variety of instances where judgements on cases referring to the life of the foetus, the health of the mother, the right to bare a child as a right to privacy etc. have been decided in ways that are highly problematic from a feminist point of view. One example is a Delhi High court judgement in 1983 that held that abortion without the consent of the husband constitutes cruelty and grounds for divorce. The judgement further stated that "the wife had refused to satisfy a husband's natural and legitimate craving to have a child." It stated also that "in this sort of case-given that they were Hindus- the court has to attach due weight to the general principle underlying Hindu Law of marriage and son-ship and the spiritual benefit of having a son.( p. 88 )

Menon points to the danger in fighting selective abortion of female foetuses using arguments that could just as easily be used against access to abortion. For instance Menon points out the possibility that within a highly communalized universe the state's population policies in the pursuit of economic "growth" could be undermined by the need for the Hindu polity to expand its members in the perceived threat of Muslim population explosion. She cites the example where when Hindu religious leaders were urged by the government to speak against the selective abortion of female foetuses they spoke against abortion in general with femicide of foetuses as only part of the problem and in accordance with the Shastras endorsed the practice of sati, and denounced vasectomy and widow remarriage.(p87)

In the final section of the chapter Menon citing Rayna Rapp's work on genetic counselling in New York city points out that the oft touted argument in favour of choice- the abortion of "abnormal" foetuses too is full of contradictions that require unpacking. For instance Menon states "quality of life is not determined by absolute biological incapacities but by prejudice and stigma, by the cultural meanings attached to these incapacities.". Also physically and mentally "handicapped" individuals do not by definition have a lower quality of life. It is the great value placed on individual autonomy and on competition that makes this seem like a self evident fact. Menon thereby makes the point that it is worth considering if a pro abortion position is in fact in keeping with a larger feminist ethic. She concludes this section, quite persuasively I think with the call that as feminists we " must affirm life, - not in some abstract sense, but as it appears within our specific moral and ethical universe- while at the same time, in a hugely imperfect and unjust world, accepting the need for abortion and struggling for safe and universal access to it." (p 100) This chapter I want to suggest is more useful as a rigorous and well documented analysis of the issue of femicide of foetuses in India than a polemic against feminists use of the law.

As an anthropologist I find many of Menon's concerns - grounded in unpacking the fixedness of taken for granted categories, historicizing and contextualizing them, and interrogating values attributed without reference context and so on familiar and am largely sympathetic with her positions. However I am not yet ready I feel to give up on either the rights discourse or the possibility of progressive law reform. I feel the enormity of the challenge that she poses in calling for ending feminist engagement with the law, but given the current debates in this country regarding constitutional reform with the introduction hopefully of a state of the art bill of rights I am not yet ready to consider that such a move may in fact be in vain. Further, while a critique of constitutionalism is all very well I am not sure that we have a sufficiently worked out option to fall back on.

Menon also suggests throughout the volume that the legal process works mainly and I sometimes read only to reinforce prevailing sexist ideologies. And the examples that she offers - especially in relation to the issue of reproductive autonomy and sexual violence - seem to bare her out. And her critique of the rights paradigm adequately bolsters the question as to what about the law is so detrimental to any project motivated by feminist ethics. However I am not sure if this analysis makes sufficient room for the possibility that the prevailing ideologies themselves are constantly changing. Clearly the changes are not always or necessarily for the better. Menon herself points out that the manner in which the sexiness of "gender" in NGO discourse is profoundly compromised by its allegiance with global finance capital and the neo liberal agenda. However feminist activism has a variety of fora other than the legal discourse and could it not be argued on Menon's own terms that while too much emphasis on the legal sphere should certainly be critiqued, the legal sphere is just one amongst a variety of disciplines and discourses within which feminists work to make "our" ethics those of, in Menon's own terms - common sense? Will they not then in turn impact the manner in which the law it self might work?

I will conclude by reiterating that the strength of Menon's work lies not just in her insistence on the fact that feminists have exhausted the liberatory potential of the rights discourse and legal reform but in the amazing wealth of detail that she brings to her analysis of Indian feminists engagement with the law. It lies also in her insistence on the constant need to question the emergence of fixed truths within any political movement while keeping in view the ethical principles that motivate any such movement.

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