Reimagining Everyday Justice through the Triad of Niti (policy), Nyaya (Justice), and Niyat (Will and Agency)

25 February 2023

http://mainstreamweekly.net/article13169.html

by Shalu Nigam

Scholars all over the world have defined `justice’ as a broad concept of righteousness, fairness and equity. However, justice has many dimensions and includes comprehending situations of injustices in everyday lives that need to be redressed. More so, from the perspective of the Global South, situations of injustices exist despite having well-written constitutions, laws, and policies, besides the existence of an expansive legal system and the administrative apparatus. Perhaps the governance system lacks the political will to enforce the constitutional values, laws, and policies in the true spirit in which they were framed. At times, numerous laws grant limited rights, also, the laws are being weaponized by the powerful. Therefore, what is required is a combination of elements to foster effective, efficient, transparent, and accountable governance, along with the active participation of citizens and civil society organizations. In this essay, I argue that addressing situations of injustice necessitates a triad of Niti (a combination of laws, policies, procedures, the legal, and administrative systems, and bureaucracy), Nyaya (substantive, distributive justice), and Niyat (which includes two components: one, the social, economic, and political will, commitment, or intention of those in power combined with the second, agency of pro-active citizens, and the role of civil society).

Examining the concept of Niti and Nyaya 

Justice is a multi-dimensional and layered concept. Scholars such as Aristotle and Plato advocated for the divine theory of justice, whereas John Locke argued that justice is derived from natural law. Rawls expressed that the concept of justice lies in the social contract [1]. More specifically, distributive justice includes fairness, equity, and setting up just institutions. Amartya Sen [2], in his Idea of Justice, emphasized the importance of Niti, which he described as organizational propriety, and behavioral correctness, and Nyaya, or a comprehensive and inclusive concept of realized justice. While critiquing Rawls’ theory of justice based on his idea of `transcendental institutionalism’, Sen argued that there is a need to move beyond the concept of perfect justice because there are plural views of what is just. Sen concluded that, along with niti, the nyaya-oriented approach is significant in determining the value of the government and the kind of society it produces.

More recently, the present Chief Justice of India, DY Chandrachud, in his lecture to the students on hate speech in August 2022, while distinguishing between legality and morality, argued that `niti’ (law) does not always result in `nyaya’ (justice)’ and therefore, a lawyer is required to follow the `path of conscience and equitable reason’ to reimagine law [3]. Perhaps, the lecture is intended for law students as potential lawyers, and therefore, it missed the crucial part relating to the role of the judiciary in interpreting the laws. For instance, feminists have criticized how androcentric law overlooks the female point of view to promote patriarchal interests while using male reasoning [4]. Frequently, in situations of violence against women, the courts have ended up delivering sermons to the survivors rather than upholding the principles of justice [5]. Technicalities are prioritized over the rights of the oppressed [6]. Scholars have demonstrated that the law is a subversive site [7].

Law, frequently, maintains order but fails to protect the citizen’s rights [8]. Rather, the laws and policies that are intended to support the oppressed are interpreted to favour the dominant groups. More recently, the grant of remission in the case of Bilkis Bano, the manner in which the petition filed by Zakia Jafri is handled by the Supreme Court, and the arrest of activist Teesta Setalvad, raised several questions [9]. In many other cases, such as the refusal of bail to Umar Khalid, and the imprisonment of young women who protested against the citizenship amendment law, all demonstrated how justice is being denied in selective cases. The laws are weaponized by those in power [10].

Despite the existence of a well-written constitution that guarantees equality, liberty, and justice, and the laws and policies that protect the rights of the disadvantaged, it is poor governance that is causing suffering, lost opportunities, and injustices of all kinds that are compelling a majority of people to live in intolerable misery. For those on the margins, the terrible forms of everyday injustices include dealing with unreasonable situations of starvation, denial of livelihood, denial of health, and denial of education, as well as discrimination and violence of all forms to deprive them of the right to life with dignity. Biased policies can sometimes result in uneven development by empowering the powerful while disempowering those on the periphery [11]. Also, the law is being used by authoritarian governments to stifle dissent [12]. Numerous laws grant limited rights.

Additionally, to obtain justice in their everyday lives, the common people need to deal with the mighty state and Kafkaesque bureaucracy. Lack of good governance is deemed a critical factor in widening injustices. An increase in the nation’s wealth has not eliminated poverty or reduced economic inequalities. Material success is not leading to social success [13]. Economic inequalities are widening due to anti-people policies and not due to a lack of resources. Persistent inequality, poverty, and exclusion of the marginalized, are most often the result of policy choices, and they persist due to a lack of political will [14]. Obstacles persist due to uneven priorities in resource allocation and data collection, inadequate resource mobilizations that favour dominant groups, exclusionary policies, and so on [15]. Moreover, the regulatory framework lacks adequate provisions to hold the enforcers accountable for non-compliance with the safeguards relating to transparency and integrity.

Therefore, focus is to be laid on the transformative potentials of nyaya and how niti and nyaya are implemented on the ground to impact the rights of the marginalized. Analysing the above situations demonstrate that Niti (laws and policies) alone is not leading to justice, or nyaya, because this dyad is not accompanied by the niyat, or political will, of those in power, including state functionaries. The niti-nyaya approach has limitations because it does not consider Niyat or the will and the intent of the state actors in putting the laws and policies into practice or bringing structural reform addressing and challenging the core of patriarchy, casteism, racism, class-interest, biases, corruption, and various other social obstacles to building the just societies. The will of the government or the niyat-oriented approach is critical to practically enable the environment, in which injustices could be redressed, inequities could be reasonably remedied, and justice could be advanced. According to research, the political will or Niyat to implement actions through policy measures can aid in the reduction of social inequities. Furthermore, citizens and civil society must play an important role in the governance process by monitoring, evaluating, and raising concerns about disadvantaged groups.

To redress situations of injustices, what is required is accountable, transparent, and efficient governance based on the triad of niti, nyaya, and niyat. The Niyat- oriented approach broadly includes two components: 1) political commitment and intent of state actors to bring reforms; and 2) participatory governance, where the state provides a space and mechanism where citizens and civil society actors proactively participate in the process of meaningful decision-making and could make governments accountable. This two-layered strategy is essential for eliminating poverty, reducing inequalities, and achieving development goals.

The element of political commitment is crucial

In general parlance, the term `political will’ includes intent and commitment on the part of leadership to achieve goals of development and the common good or to initiate sustained reforms until the desired results are achieved. Hammergren [16] opined that political will is “the slipperiest concept in the policy lexicon. It is the `sine qua non’ of policy success, which is never defined except by its absence. It thus becomes the explanation for every policy failure despite the fact that so many programs are undertaken where it certainly does not seem present.”. Brinkerhoff [17] defined political will as “the commitment of political leaders and bureaucrats to undertake actions to achieve a set of objectives and to sustain the costs of those actions over time”. It contributes to effective and efficient mobilization and allocation of resources, as well as to enhance the enforcement capacity of the actors [18].

Malena [19] identified three mutually reinforcing elements of political will to include a sum total of political want, can, and must. For power holders to commit and act in favour of a certain cause, they need “to want to undertake a given action, feel confident that they can undertake that action, and feel that they must undertake the action” [19]. Lack of political will is recognized as a critical reason for the failure of anti-corruption measures when the power-holders are required to act for the common good and against their self-interest [20]. Though political will is an ambiguous and imprecise concept, it remains a cornerstone for determining policy processes and outcomes [21]. A political will enables leaders to adopt a facilitative style of leadership [22]. Political intent or commitment is critical in implementing reform measures [23]. Those in power allocate resources, make and enforce laws and policies, and create an enabling environment for reforms to be effectively enforced. They are the principal actors who may change the prevailing culture to enhance justice [20].

Political will, therefore, is a complex, multilayered concept that has many dimensions and is hard to measure or assess because its existence is linked to the action it supports. Creating political will to eliminate inequalities requires a three-pronged approach: 1) An institutional change to recognize and acknowledge the rights of marginalized groups; 2) Recognizing disadvantaged groups as partners in change; and 3) A moral shift in the norms and approach to adopt a pro-equity position.

People’s agency and participatory governance are also critical elements of Niyat

Participatory governance is essential to redressing the situations of injustices and reimagining justice in a broad manner. To reshape the concept of efficient participatory governance, democracy must be redefined broadly beyond the procedure of regular periodic elections to include an idea where people proactively participate in the process of governance and decision-making to hold governments accountable. The social choice theory based only on the niti-oriented approach that pushed for the idea of aggregating the preferences of voters as a viable democratic procedure is limited, narrow, and problematic. Involving people in decision-making becomes critical to widening the parameters of justice rather than limiting it to courtrooms or the corridor of powers. Understanding political processes to reinforce people-oriented actions helps reduce social inequities [24].

Participatory governance also necessitates the active participation of non-state actors, such as active civil society. Participation empowers those oppressed and helps to improve the process of governance. Citizens, as change agents, and actors in civil society may play a proactive, vigilant role, to create pressure from below besides playing their role in service delivery, though individual agency is determined by a variety of factors. The participatory governance process serves as a catalyst for a progressive transformation in which ordinary people assert their freedom and choice by raising concerns and demanding accountability and transparency from state actors.

Reimagining Justice through the Triad of Niti, Nyaya, and Niyat

The preceding discussion demonstrates that all three elements, niti, nyaya, and niyat, become critical in shaping and reimagining justice in societies where disillusionment with governance grows, leading to mistrust between citizens and states, and where people on the margins are excluded from the governance process. Political will is essential to substantively implement the niti-nyaya paradigm to create equal societies. The existence of a normative framework is insufficient unless it is accompanied by the commitment of the part of state actors to put the principles of social justice for the marginalized into practice, as well as meaningful engagement with the citizens and the civil society actors to strengthen democratic ideals. Holding the state accountable to deliver on its commitment and enforce a concrete action plan to achieve the goal of social justice through participatory governance is essential. Reforming the patriarchal, casteist, and unequal hierarchical institutions is insufficient without the active participation and commitment of those who are at the receiving end as well as those on the delivery end. The persistent gap between rhetoric and reality needs to be bridged through tangible, serious actions. Addressing the root causes of oppression necessitates targeted actions. The trend of increasing inequalities could be reversed and justice could be promoted by incorporating feminist consciousness into the process changing the norms and processes, rethinking them through the trifecta of niti, nyaya and niyat in conjunction with the trifecta of hope, imagination, and possibilities to create a just world [25].

(Author: Shalu Nigam is an advocate and an independent researcher working at the intersection of gender, human rights and governance. She has published several books and papers. Her recent publications include Domestic Violence Law in India: Myths and Misogyny (2021), Women and Domestic Violence Law in India: A Quest for justice (2019) and the Founding Mothers: 15 Women Architect of Indian Constitution (co-author, 2016)

Notes:

[1] Rawls John (2001) Justice as Fairness: A Restatement, Edited by Erin Kelly, Harvard University Press, US
[2] Sen Amartya (2009) The Idea of Justice, Penguin Books, England.
[3] Singh Ratna (2022) Niti does not always result in Nyay; speak truth to power, stand up against hate speech: Justice DY Chandrachud, Bar and Bench, August 8, https://www.barandbench.com/news/niti-does-not-always-result-in-nyay-speak-truth-to-power-stand-up-against-hate-speech-justice-dy-chandrachud
[4] MacKinnon Catharine A (2005) Women’s Lives: Men’s Laws, The Belknap Press of Harvard University Press, Cambridge
[5] Nigam Shalu (2021) Domestic Violence Law in India: Myths and Misogyny, Routledge, Delhi
[6] Nigam Shalu (2019) Women and Domestic Violence Law in India: A Quest for justice, Routledge, Delhi
[7] Cossman Brenda and Ratna Kapur (1996) Subversive Sites: Feminist Engagement with the Law in India, Sage Publication, India
[8] Tripathi Salil (2022) The judiciary should protect our rights and not just ensure order, Livemint.com June 29, https://www.livemint.com/opinion/columns/the-judiciary-should-protect-our-rights-and-not-just-ensure-order-11656519713083.html
[9] Venkatesan V (2022) The outrage over denial of bail to Teesta Setalvad and grant of remission to Bilkis Bano’s convicts shows it is not easy to erase recent history, The Wire, August 21, https://theleaflet.in/the-outrage-over-denial-of-bail-to-teesta-setalvad-and-grant-of-remission-to-bilkis-bano-convicts-shows-it-is-not-easy-to-erase-recent-history/
[10] Nigam Shalu (2022) Demystifying the power of law, Tedx talk delivered on 12th March at Tedx@SIBM Bengaluru, https://www.youtube.com/watch?v=xybT6pAr-8E&ab_channel=TEDxTalks
[11] The Wire (2016) Eight out of ten claims made by tribals for land rejected by state, July 28, https://thewire.in/rights/tribal-land-claims-rejected
[12] The Wire (2023) NIA raids human rights lawyer who represented PFI leaders in HC, seizes books, February 18, https://thewire.in/government/ansar-indori-nia-raids-pfi-human-rights
[13] Wilkinson Richard and K Pickett (2009) The Spirit Level: Why Greater equalities make societies stronger, Allen Lane UK
[14] United Nations (2018) Main barrier to tackling inequalities is lack of political will, https://www.un.org/uk/desa/main-barrier-tackling-inequalities-lack-political-will
[15] DFID (2010) The Politics of Poverty, Elite citizens and the state, https://www.oecd.org/derec/unitedkingdom/48688822.pdf
[16] Hammergren Linn (1998) Political will, constituency, building and public support in rule of law programs, available at https://issat.dcaf.ch/content/download/2200/19056/file/Hammergren%20Political%20Will.pdf
[17] Brinkerhoff, DW. (2000) Assessing political will for anti-corruption efforts: an analytic framework. Public Administration and Development, 20(3) 239-253
[18] Raile ANW, ED Raile and LR Post (2018) Analysis and Action: The Political will and public will approach, Available at https://scholarworks.montana.edu/xmlui/bitstream/handle/1/15196/Raile_AR_2018_FINAL.pdf?sequence=1&isAllowed=y
[19] Malena Carmen (2009) From political won’t to political will: Building support for participatory governance, Kumarian Press and CIVICUS
[20] Martinez Roberto and B Kukutschka (2015) Building Political will to fight corruption, Transparency International, https://knowledgehub.transparency.org/guide/topic-guide-on-building-political-will-to-fight-corruption/5136/
[21] Lori Ann Post, N Amber, W Raile and ED Raile (2010) Defining political will, Politics and Policy, 38(4) 653-676
[22] Teles Filipe (2014) Facilitative mayors in complex environment: Why Political will matter? Local Government Studies, 40(5) 809-829 doi.org/10.1080/03003930.2013.801835
[23] Chancel L. (2018) Main Barrier to Tackling Inequalities is Lack of Political Will. https://www.un.org/development/desa/en/news/social/main-barrier-totackling-inequalities-is-lack-of-political-will.html
[24] Baum F, B Townsend, M Fisher et.al. (2022) Creating political will for action on health equity: Practical lessons for public health actors, IJHPM 11(7) 947-960 doi 10.34172/ijhpm.2020.233
[25] Nigam Shalu (2022) Feminist Foreign Policy in India: A Trifecta approach to hope, imagination and possibilities, IMPRI, October 25, https://www.impriindia.com/insights/feminist-foreign-policy-trifecta/

 

We, the Women Warriors, are Unstoppable!

November 27, 2019

https://16daysblogathon.blog/2019/11/27/we-the-women-warriors-are-unstoppable/

After a long wait, the National Crime Record Bureau of India has recently published its report pertaining to crimes in India  in 2017. According to this report, 104,551 cases have been filed under section 498A IPC, a criminal law dealing with `cruelty’ against married women by their husbands and in-laws. A further 7,466 cases have been registered under section 304B, which pertains to dowry deaths, while 10,189 cases have been registered under the Dowry Prohibition Act, a law that bans the giving and taking of dowry. In addition, 5,282 cases have been registered for abetment of suicide among women and 616 cases have been registered under the Protection of Women Against Domestic Violence Act, for breaching the civil orders granted under this law in favor of the victims of domestic violence.

The NCRB report further indicates that the conviction rate was as low as 9.5% under section 498A cases in 2016, but which rose to 15.9% in 2017. In cases pertaining to dowry deaths, the conviction rate is 41.1% in 2017. These figures indicate that the majority of women who knock on the doors of the court are not receiving justice. Compounding this, violent men are being acquitted by the courts. 

This data shows that a large number of women are not safe in their own homes. They are being physically and psychologically assaulted, verbally and emotionally tortured, discriminated, sexually harassed, murdered, forced to commit suicide and attacked in numerous ways. Serious complaints of violence are normalised and trivialised, framed as ‘disputes’ or `ego tussles’. Myths and misogyny operate in society and the courtrooms alike to deny justice to women survivors of violence.

 

The role of the Supreme Court 

 Despite the fact that a large number of women are approaching the police and the courts with their complaints of violence within homes, police are rarely arresting violent men and the courts are failing to hold them accountable. In some instances, the courts are actually making the problem worse. For example, in 2014, the Supreme Court decided the matter of Arnesh Kumar v State of Bihar. It delivered a sweeping statement that section 498A, a criminal law provision relating to domestic violence, is being ‘misused and abused by disgruntled women’ and directed for the dilution of the provisions relating to the arrest and bail of accused persons. 

Then, in 2017, in Rajesh Sharma v State of UP the Supreme Court passed a directive to police and magistrates that no arrests were to be made or coercive actions taken without ascertaining the veracity of the complaints lodged under section 498A. It suggested the formulation of Family Welfare Committees to scrutinise every complaint of domestic violence to ensure that no ‘false cases’ were registered. Without examining the on-the-ground realities, the court concluded that the law is misused by ‘vengeful’ women, and saw men as victims of this ‘cruel’ law. While himpathising (a term coined by Kate Manne) with the accused persons, the bench remarked that there was “violation of human rights of innocents”. In contrast, no compassion is shown towards the women who are abused, abandoned, burned, murdered, killed, raped and brutalised.

However, after protest by several women’s organizations and petitions filed in the Supreme Court, the Court heard the matter of Social Action Forum for Manav Adhikar v Union of India in 2018. It ordered the Family Welfare Committees be done away with, while retaining the provision relating to arrest and bail for the accused persons. Even earlier, the Law Commission and several other state institutions too, have recommended the dilution of the domestic violence laws.

The legal system provides a platform for women to raise their concerns; however, there is a lack of commitment in implementation. Over the years, concerted actions have been taken by state actors to dilute the provisions of law. The system is being manipulated to serve the logic of the patriarchy, protecting the interest of the dominant group while reinforcing the prevailing biased stereotypical norms. The state more broadly is treating domestic violence as a social crime and using manipulative tools –including mandatory mediation – designed to compel women to arrive at a ‘compromise’ or ‘settlement’ with the accused persons without any assurance for their safety (and that of their children), and without punishing the abusive men. In many other cases pertaining to domestic violence, dowry deaths and suicide by married women, the courts have granted immunity to violent men by placing weight on the principle of ‘family harmony’, and in the process, disregarding the constitutional rights of women as citizens.

 

We, the Women, are Warriors and We Will Persist!

Yet the survivors, who may be seen as powerless and vulnerable, through their sheer grit, are demanding justice, breaking the codes of prolonged imposed silence, shaking the system and forcing it to respond. They are not feminists or experts but they are everyday women who, with their own sense of justice, and with scant resources or little support, are seeking a violence-free life for themselves and their children. They are fighting battles not only against abusive men but also against the patriarchal structures within homes, misogyny in courts, and androcentric culture and sexism in society. In doing so, they are reclaiming ownership of their lives with persistence, courage and resilience.

The law is currently implemented in a way that means complainants are being revictimised in the process. Despite this, women are using the law to reclaim their rights and resist violence. Those who are registering their complaints are negotiating their rights and contesting their claims while challenging the stubborn patriarchy. While writing their own stories of emancipation, they are shifting the inegalitarian structure within families, creating democratic spaces within society and –  in fighting to seek freedom, or aazadi, from violence – they are demanding the recognition of their dignity. 

For the state, as well as national and international organisations working on the issue of violence, it is essential to focus on women’s autonomy and agency in a patriarchal society and to provide support measures that help them to attain socio-economic self-sufficiency while countering ingrained misogyny. Many women are compelled to stay and bear violence because they lack any other options. There is therefore a  need to create a mechanism whereby women can access support that is specific to their circumstances. Until then, through their tough persistent legal and social battles, the simple message women are giving is this: “We, the women warriors, are unstoppable; unless violence is eliminated, we will persist”. 

 

Shalu Nigam (@ShaluNigam) is an advocate, researcher and activist working at the intersection of gender, law, governance and human rights issues. She is currently practicing at the courts in Delhi and is associated with the People’s Union for Civil Liberties, Delhi, Indian Social Institute, Delhi, as well as the Centre for Women’s Development Studies, Delhi. She was awarded a Senior Fellowship by the Indian Council for Social Science Research, Delhi. She has published several books, the recent one is Women and Domestic Violence in India: A Quest for Justice. She has been a regular contributor to countercurrents.org and has published her essays in journals such as the Indian Journal of Gender Studies, South Asia Journal, Social Action, International Journal of Gender and Women’s Studies, Women’s Link, Legal News and Views among others. You can read some of  her work here and here

From the Margins: Revisiting the Concept of `Marginalized Women’

 From the Margins: Revisiting the Concept of `Marginalized Women’

03 September, 2014

A few days back, I attended a seminar on `Violence Against Marginalized Women and Gender Justice’. The seminar discussed issues relating to various subgroups within the category `women’ like widows, Dalit women, tribal women, refugee women, and so on and so forth. The deliberations made me think as to who constitutes `marginalized women’ when `women’ being women are marginalized in the patriarchal world. Women as a `category’ or as a `group’ in comparison to `men’ have been relegated to margins due to systemic and structural discrimination within society. Women, irrespective of their hierarchical status, ranking or background, face violence within public and private spaces, they are being doubly discriminated against and denied of basic rights and are often oppressed by norms, culture and customs in a male-dominated world where capitalism and globalization commodify and objectify women. Considering this aspect, the term `marginalized women’ needs rethinking as to which of the subgroup of the category `women’ may be classified as `marginalized women’ and whether these marginalized women can use marginality as a site to contest for their rights and entitlements.

Relooking at the Term `Marginalized’ 

Marginalization is often described as a social process where people are relegated to the fringes or `margins’ of society. It is defined as a process, in which individuals or communities are socially excluded, systematically blocked from, or are denied access to participate in social and political processes which are basic to integrate with society. Marginalization inhibits a person, a group, a section or a community to enjoy rights, privileges, opportunities and resources that are normally available to members of society. It may therefore be considered a discordant relationship between those who are marginalized as compared to those who are being marginalized. Then possibly the term `marginalized’ may be used synonymously with the term `oppressed’ in comparison to an `oppressor’ as Paolo Freire used in his famous `Pedagogy of Oppressed’, `proletariat’ as used by Karl Marx, `subaltern’ used by Gramsci, `powerless’ as elaborated by Michel Foucault, or exploited, vulnerable, discriminated, disadvantaged, subjugated, socially excluded, alienated or downtrodden as used elsewhere in the available literature. 

However, there are theorists who have warned that some of these words cannot be equated with each other. For example, Gayatri Chakravorty Spivak is of the view that . . . “subaltern is not just a classy word for “oppressed”, for [the] Other, for somebody who’s not getting a piece of the pie. . . . In terms, everything that has limited or no access to cultural imperialism is subaltern — a space of difference. Now, who would say that’s just the oppressed? The working class is oppressed. It’s not subaltern… Many people want to claim subalternity. They are the least interesting and the most dangerous. I mean, just by being a discriminated-against minority on the university campus; they don't need the word ‘subaltern’ . . . They should see what the mechanics of discrimination are. They’re within the hegemonic discourse, wanting a piece of the pie, and not being allowed, so let them speak, and use the hegemonic discourse. They should not call themselves subaltern”1 .

Women are `Marginalized’ in the World Dominated by Men 

The term `woman’ has been defined as a process of becoming one rather than been born with as elaborated by Simone de Beauvoir2 . Beauvoir refers to Hegel's master-slave dialectic as analogous, in many respects, to the relationship of man and woman. This proposition treats woman as the `Other’ in relation to man. The `Other’ has thus gained significance and needs to be examined. Therefore, on the basis of her analysis the entire category called `women’ or the `Other’ is marginalized because of structural and systemic discrimination prevalent in the society. In ‘A Vindication of the Rights of Women’, Wollstonecraft3 writes against a conception of women and femininity as defined primarily by the ability to arouse male sexual desire. She elucidates that this conceptualization, “deprive us of souls and insinuate that we are beings only designed by sweet attractive grace, and docile blind obedience, to gratify the sense of man…..” She further argued, “They (women) may be convenient slaves, but slavery will have its constant effect, degrading the master and the abject dependent”. Similarly, in India, Tarabai Shinde in 19th century in her famous published work Stri Purush Tulna explained that women everywhere are oppressed4 . Therefore, historically, it may be said that women are oppressed and marginalized in almost every society and more specifically in patriarchal society like India women’s marginalized is being continued till today. 

This may be observed from the analysis of facts, figures and the data available reflected in the Human Development Index, crime against women or otherwise available, on the basis of which it may be generalized that social and political structures constrain women’s choices and limit their ability to participate in decision making, thus socially exclude them at both micro and macro level. Omvedt5 noted that, “When political independence came to nations in Africa and Asia, the ruling elite became the managers of the system of surplus accumulation and attempted to utilize it for development in their own societies. The main mechanisms for surplus extraction were by this time prices (low prices both for crops grown by peasant producers and for natural resources) and increasing state claims to ownership of common property which had once been under the control of village communities”. She further explained that exploitation was masked by the ideology of development and industrialization and in the process poor, small, and marginal farmers, peasants, and women were marginalized. 

The Report on the Committee on the Status of Women in India6 in 1974, a document solely devoted the `question of women’ in independent India, observed that the `large masses’ of women were yet to realize their rights on the ground though the Constitution of India proclaimed when it guarantees the right to equality on the basis of sex. The report observed that the promise of gender equality remained on paper and failed to reach a large number of women. It further held that though many women contributed to the freedom movement but that notion quickly evaporated and in independent India, the `women’s question’ remains ignored7. The committee further noted, “All indicators of participation, attitudes and impact come up with the same result…though women do not numerically constitute a minority, they are beginning to acquire the features of minority community by the three recognized dimensions ….economic situation…social position and political power. If this trend is allowed to continue the large masses of women in India may well emerge as the only surviving minority continuously exposed to injustice”8. And this became a reality today where a large majority of women, are being denied basic social, economic and political rights and those who got it are struggling to maintain their acquired positions. 

This is mainly because `women’ as a group or category has been overlooked by the State while framing and implementing policies. Though policies and schemes for women were framed as a part of five-year plans or otherwise, however, the main intent of these programmes is to grant `welfare’ to women where services are being doled out. The policymakers over the years have failed to see women as equal participants or partners to change, growth and development of the country. The authors of the ‘Towards Equality’ Report while commenting on the role of state in marginalization of women observed, “”Women” were positioned – marginally and precariously – with the confines of a narrowly conceived social welfare sector. Marginally, because women had to jostle for space and resources within this poorly endowed sector with many other groups of citizens; precariously because the entirety of social context and situation of women, the issues thrown up and the successes achieved during the social reform and the freedom movement, the unfinished task and an overall follow up – all were missing in the social welfare lens, the cognitive map of policy makers. Even more serious, the social welfare sector did not concern itself with the legal rights and entitlements”9 . 

The `tryst with destiny’ visualized at the time of independence has failed to benefit women and to reach the half of the masses who remained invisible and have been denied of their dues. The development paradigm adopted later also relied on the discourse which is exclusively Western while ignoring the needs of local women or follow people-oriented approach. This has been highlighted by Shiva and Mies while referring to the context of the Chipko Movement where they argued that women activists, “expect nothing from `development’ or from the money economy. They want to preserve their autonomous control over their subsistence base, their common property resources: the land, water, forest and hills”10 . The sex equality that is guaranteed within the Constitution of India therefore could not be achieved as this social document failed to create a revolution or achieve a new social order in Independent India even though it propagates for democratic governance and is accompanied by the spirit of modernization and development. Rather, the so called development pushed the `Western’ agenda of development which is alien to large masses and it took away their basic freedom to Jal, Jangal and Zameen (water, land and forests).

The Social Complexities that Further Accentuate Inequalities 

Thus, the unequal position of men and women that is being maintained and further intensified in Independent India is due to faulty approaches to implementing laws and policies. Also, this sex-based inequality cannot in reality be differentiated from the variety of social, economic and cultural inequalities that existed in Indian society for generations. This is because inequalities inherent in our traditional social structure based on caste, community, religion and class have a significant influence on the status of women. The multifaceted, multi-layered and diverse social situations that existed within the country require a different kind of intervention to lead to social transformation that benefits all sections of the population; however, this fact has been neglected for decades. 

Further, modernization, industrialization, development, urbanization and globalization in independent India, have affected women from different backgrounds in differing degrees resulting in in-egalitarian distribution of opportunities and resources, and a nonuniform pattern of social change not only among men and women but also among `women’ from different social ranking, hierarchies and backgrounds. In fact, modern development processes resulted in deepening disparities further subjugating `women’ as a larger category, and also different subgroups within this category. The structural economic changes, expanding markets, cutting technology, wider avenues for education and steps taken to bring `development’, all have combined to produce mixed and uneven results. On the one hand, these have created space for the participation of women in social, economic and political processes and created wealth and opportunities for a section of the population, yet on the other hand these have also resulted in deepening poverty, intensifying social crisis and enhancing vulnerabilities for large spheres of society. Currently, the situation is that the changing social processes have resulted in the removal of certain restrictions in women’s life yet; these have also created centers of resistance to the desired change in women’s status.

Inequalities that are Relegating Women to Margins 

Thus, at one level there is inequality that already persisted between men and women, intensified and on the other hand, within the category called `women’ inequality sharpened in terms of status, power, rights, privileges and obligations. The latter happened because `women’ as a category is not homogenous. This divergence emanates from their relative position within the social strata and their proneness to vulnerability as per their location within the social context. Besides, caste, religion, geographical location or class various principles operate to differentiate the women’s status like the availability of finances, resources, employment, education, access to opportunities, availability of support and network, marital status and so on. Within this multi-layered framework and complex social structure, there are women who are `more’ vulnerable than others. For example, a woman labourer from a scheduled caste background may enjoy a certain degree of autonomy but may not enjoy a high status in  the wider social setting. Similarly, a widow woman who belongs to a wealthy upper caste family is relegated to inferior status and may be denied the basic necessities along with the right to reside within the joint family’s household. 

Therefore, the institutional setting in which a woman is located acquires significance besides factors like her social position or ranking in the hierarchical setup as generally held. Another situation highlighted by Omvedt11 in her paper pointed out a particular situation where the number of `abandoned women’ which include divorced and deserted women from all castes and religious communities were increasing in the villages. She explains the manner in which these women were marginalized within their own familial setup by those who constitute part of their family, as “They (women) are normally sent back to their parental villages where they have to support themselves and their children by working as laborers without rights in either the house or land of their natal family. Their situation reflects the social condition of women within the Hindu patriarchal family system, as essentially landless, homeless, and without support”.

State’s Perception of Marginality 

The state as a major actor plays a decisive role in creating an environment that defines, determines and shapes marginality as discussed above. Through its policies, laws, schemes and programs, the state establishes the fact as to who falls under the category of marginalized. For example, by defining the poverty line the state determines as to who would constitute a marginalized person. Therefore, discourse around the issue of whether `a woman who owns two saris may fall under the category of poor person, or should a man earning Rs 25/ per day is empowered enough to feed a family of four’, the state often plays a major role in planning for `welfare’ of marginal sections. However, often, these discourses fail to take into account the reality of marginalized populations. Based on the trickle-down approach, this discourse overlooks the reality of millions of people living in a situation of grave deprivation, hunger, diseases and non-availability of not only basic necessities but also dignity and equity. 

This approach of the binary social relation of the Us-and-Them, of the Provider and the Beneficiary, of the Expert and the Needy, the Giver to the Recipient has neither helped the State and nor has benefitted the masses of people, the subaltern or the marginalized. The reason is that the State failed to consider the marginalized as active participants in the decisions making process and neglected their role as a partner in the way towards progress of the entire nation. The bureaucratic approach which remained in free India as a remnant of colonial legacy polarized the situation based on the concept of classes versus masses, the rulers versus the ruled, and the powerful versus the powerless and created a situation where disparities intensified in spite of the existence of constitutional provisions, policies and programs. The language of domination persisted in the governance framework throughout the decades which created a divide and further marginalized those who are vulnerable.

 This language of domination is so authoritative that it hardly allowed the language of resistance to raise it concerns in its own voice. As bell hook explained the dangers in this type of speech about the `Others’ lies in the fact that it is no different than the language of oppression. She explains the manner in which this language of oppression works, “[There is] no need to hear your voice, when I can talk about you better than you can speak about yourself. No need to hear your voice. Only tell me about your pain. I want to know your story. And then I will tell it back to you in a new way. Tell it back to you in such a way that it has become mine, my own. Re-writing you, I write myself anew. I am still the author, authority. I am still [the] colonizer, the speaking subject, and you are now at the center of my talk”. This language talks `about the marginalization as such but it does not talk to those who are oppressed or talk with powerless’ and that is a grave situation. The concern is that the experiences of those on the margins this way remains invisible, their way of seeing reality remains unseen and their consciousness of the structure of daily lives is ignored

Marginality as a Space for Contestation, Resistance, Negotiation and Struggle 

Traditionally, the state is obliged to empower the marginalized and the socially excluded, but at the same time it does not want these groups to act as a partner in bringing about social transformation and it talks the language of domination. Therefore, true change can only be possible when those who are at the margins participate in the social and political processes to create reform. Marginalized, therefore, need to use the site of oppression as a space of resistance, struggle and negotiation12. The reason being that marginality is a site that nourishes the capacity marginalized of the to resist and helps to create and imagine new and alternative worlds. More specifically, women may play a significant role is using the space of marginality to contest for their rights and negotiate their claims. 

While commenting on using marginality as a site for struggle, Omvedt in her paper noted, “In view of the marginalization and super-exploitation of women's labor linked to the system, it is perhaps not surprising that women seeking their own empowerment should become forces supporting a new kind of development” 13 . Also elsewhere hooks while supporting this argument noted that once women identify that they are being marginalized by the oppressive structures there is a possibility that this site can be used to create an alternative world. She opined, “I am located in the margin. I make a definite distinction between that marginality that is imposed by oppressive structures and that marginality one chooses as a site of resistance – as a location of radical openness and possibility. This site of resistance is continually formed in that segregated culture of opposition that is our critical response to domination. We come to this space through suffering and pain, through struggle. We know struggle to be that which pleasures, delights and fulfills desires. We are transformed, individually, collectively, as we make radical creative space which affirms and sustains our subjectivity, which gives us a new location from which to articulate our sense of the world”14 .

Conclusions 

While concluding it may be said that `women’ as a category has been marginalized for ages in almost all parts of the globe. However, in independent India, in spite of the Constitutional guarantees of equality between sexes and the affirmative action clause which enables the State to formulate laws and policies in favour of women, the ground realities tell a different story. Though education, modernization, industrialization and globalization, all have made a certain impact on the situation and the status of women, however the distribution of such change remains uneven resulting in widening inequalities between men and women and within the different subgroups within the category called `women’. Further, even within the same subgroup within the `women’ category, the institutional location of women determines their position in terms of marginalization besides social ranking of hierarchical order in a multilayered society. Therefore, while defining the `marginalized women’ various factors need to be considered including opportunities, resources, finances, employment, marital status etc. The state has done little in free India to acknowledge women’s role as equal partners to growth and social transformation. The language of domination prevails when the State attempted to formulate policies and programmes for women. The women, therefore, need to locate the space for contests and are forced to use the site of marginality to resist and create a new world. 

1 De Kock, Leon. "Interview With Gayatri Chakravorty Spivak: New Nation Writers Conference in South Africa." ARIEL: A Review of International English Literature. 23(3) 1992: 29-47 http://ariel.synergiesprairies.ca/ariel/index.php/ariel/article/viewFile/2505/2458

2 Simon de Beauvoir (1949) The Second Sex, Vintage 2010

3 Wollstonecraft Mary (1792) A Vindication of the Rights of Women, Penguin 2006

4 Hanlon R (1994) A Comparison between Men and Women: Tara Bai Shinde and the Critique of Gender Relations in Colonial India, OUP

5 Omvedt Gail (undated) Green Earth, Women’s Power, Human Liberation: Women in Peasant Movement in India

6 CSWI (1974) Towards Equality Report on the Committee on the Status of Women in India, Government of India

7 Sharma Kumud and CP Sujaya (2012) Introducing Towards Equality: Report of the Committee on the Status of Women in India in Women’s Equality and the Republic: Landmarks in Indian story Ed Vina Mazumdar, CWDS and Pearsons

8 Towards Equality Report para 7.98

9 Sharma Kumud and CP Sujaya (2012) Introducing Towards Equality: Report of the Committee on the Status of Women in India in Women’s Equality and the Republic: Landmarks in Indian story Ed Vina Mazumdar, CWDS and Pearsons p xxv

10 Mies Maria and Vandana Shiva (1993) Ecofeminism, Zed Publications,

11Omvedt Gail (undated) Green Earth, Women’s Power, Human Liberation: Women in Peasant Movement in India

12 bell hooks (1990) Marginality as a site of Resistance http://pzacad.pitzer.edu/~mma/teaching/MS80/readings/hooks.pdf

13 Omvedt Gail (undated) Green Earth, Women’s Power, Human Liberation: Women in Peasant Movement in India

http://www.dhf.uu.se/pdffiler/92_1_2/92_1-2_8.pdf

14 bell hooks (1989) Choosing the Margin as a space for radical openness, from Yearnings: Race, Gender and Cultural Politics

 Shalu Nigam is currently working with the Centre for Women Development Studies. She has written several books and papers on gender, governance and law issues.

https://www.countercurrents.org/nigam030914.htm