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A female experience of the law as we know it

In her book In The Body Of A Woman, writer and advocate Aaliya Waziri dissects the ways in which the law and gender intersect in India and examines how far the legal system upholds the patriarchy

Mother of Jyoti Singh, aka Nirbhaya, during a protest in 2015. The horrific rape significantly changed laws in India (HT)

By Shrabonti Bagchi

LAST PUBLISHED 18.07.2023  |  02:18 PM IST

The title of this book by Aaliya Waziri, a writer and advocate working as a judicial law clerk at the Delhi high court, comes from an essay by Lucia Osborne-Crowley, a British-Australian writer whose fierce memoir of reclaiming her body after a violent rape is a seminal feminist text today. Anyone who has moved through this world in the body of a woman knows what it feels like to wish to be invisible, writes Osborne-Crowley. Her influence on Waziri is evident—her books, I Choose Elena and My Body Keeps Your Secrets, are often described as “a hybrid of academic prose, memoir and reportage", and Waziri’s book follows a similar path.

In The Body Of A Woman: Essays On Law, Gender And Society is an important book—not only because a critical examination of how India’s legal framework intersects with gender is rare but also because of the empathy and humanity Waziri brings to topics such as The Criminal Law (Amendment) Act, 2013, passed in the aftermath of the Nirbhaya case; marital rape laws in India; the gaps in cyberbullying laws; practices like witch-hunting; and abortion laws in India and the US. The one flaw is the obvious fact that this is a collection of essays written and published by Waziri on various platforms over the past two years or so, and as such, despite the attempt to create an overarching narrative that holds the book together, they can sometimes feel disparate.

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The strongest parts of the book are the ones that stem from personal experience—such as a chapter on the infamous “sulli deals" case, when Muslim women such as Waziri’s mother, a prominent writer and literary historian, were “auctioned off" online through an open-source app. “(My mother) bakes the best sourdough bread and loves going for walks in the rain. She is called ‘Apa’ by almost everyone and is obsessed with red shoes. In early January 2022, she was supposedly sold off on an auction of Muslim women hosted on GitHub," writes Waziri in this chapter, a searing indictment of how technology, supposedly a great leveller, has led to stripping women of their agency and personhood.

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“I began writing to fill a void where gender-responsive literature answering loopholes within the laws should have existed. For a long time I looked for a toolbox for legal feminism, or a piece of legal literature that goes beyond critiquing the legislative apertures and instead offers a solution to the problem at hand. This collection of essays acknowledges that there is no guide, no manual, no contemporary relatable or accessible piece of literature narrating a how-to," Waziri tells Lounge in an email interview.

Law and gender are two rivers and culture is the bridge that we use to cross their intersection, says Waziri: “This book is as much about that intersection as what occurs on the banks of these rivers, the lives they touch and the crops they harvest. This book pivots on the idea that legal feminism is contextual. That there is no formula to fix everything but we can start by strengthening our institutional responses by, first and foremost, not treating women as second-class citizens of the country."

The writer acknowledges that India is an affirmatively legislated country; that on the whole, the Constitution and legal system lean—at least philosophically—towards delivering gender justice, even though their edicts may not encompass every situation, especially in a rapidly evolving society. One example of this, according to Waziri, is India’s progressive Maternity Benefit Act of 1961, which stands in stark contrast to US laws that offer minimal support to women in terms of mandatory maternity leaves and benefits. “More recently, the Supreme Court of India disallowed the distinction between married and unmarried women in terms of accessing abortion care services. It is already commendable that an Indian woman, who is not a minor, does not require the approval of her husband, partner or family provided she is of ‘sound mind’ should she seek an abortion," says Waziri.

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This is a remarkably open-minded and progressive piece of legislation, rare even among more mature democracies and certainly revolutionary in the light of abortion rights being continually eroded in the US. Waziri also notes that at the time of independence, our Constitution granted universal adult franchise to all Indian citizens regardless of their gender, a right women in the West had to fight for.

At the same time, there are several instances of the law in India working actively to uphold the patriarchy, and one of the most disturbing essays in the book is the one that talks about marital rape. “By conceding to the argument that non-consensual sex by a husband with his wife is merely an extension of ‘disagreements in married life and the bedroom’, we are reducing a woman’s violation of bodily integrity to a mere quarrel, once again purely based on her marital status," Waziri writes in the book.

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She is dismayed by the fact that the law still allows for a distinction between forced sexual intercourse by a husband with his wife and criminalises the same by non-husbands, while all along women stay victims regardless of their marital status. “It is the prime example of entrenched patriarchy within the legal system," the author tells Lounge. “I am of the view that marital rape, as a concept, is violative of the right to decisional autonomy and bodily integrity granted to all citizens of India. Defining privacy as the ability to make the most intimate and personal choices, the Puttaswamy Judgement includes privacy of the physical body," she says, referring to the landmark 2017 verdict when a nine-judge bench of the Supreme Court delivered a unanimous verdict in the Justice K.S. Puttaswamy v. Union of India case, affirming that the Constitution guarantees to each individual a fundamental right to privacy.

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In the same breath, it is disingenuous of the law to defend marital rape in the interest of “family values". “It is my argument that the State claims an unsaid interest in permitting marital rape. If we were to pierce the veil of this so-called ‘legitimate interest’ that the State proclaims to have, we will find that beneath this garb lies a deep-seated concern for preserving patriarchy," says Waziri.

While there are gaps in the book—the most prominent being a discussion of the laws relating to sexual harassment at work —which the author acknowledges, it is a vital step towards opening conversations around gender and justice in India, especially with critical issues such as marital rape and same-sex marriage hanging in the balance today.

Despite a certain unevenness of tone stemming from an inadequately smooth transition between Waziri’s passionate and lyrical prose commentary and her citing of the law, the book serves to remind us that legal writing in India remains, for the most part, dehumanised and obscure. Waziri says she has been inspired by writers like Chimamanda Ngozi Adichie in the US/Nigeria and Laura Bates in the UK who provide relevant and intelligible writing on women and the evolving nature of their needs vis-à-vis their respective societies.

“The reason I was writing was because I found there is no Indian counterpart to these pieces of legal feminism that offers a holistic understanding of the different facets of everyday sexism faced by the average Indian woman," she says. “Historically, this can be attributed to the mistaken notion that gender-related issues are unworthy of time, energy and, more importantly, of resources."

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