Vol. 13 No. 9 (September 2003)

THE SCANDAL OF THE STATE: WOMEN, LAW, AND CITIZENSHIP IN POSTCOLONIAL INDIA, by Rajeswari Sunder Rajan.  Durham: Duke University Press.  336Pp. Cloth - $64.95  ISBN 0-8223-3035-0.  Paperback - $21.95.  ISBN 0-8223-3048-2.

Reviewed by Henry F. Carey, Department of Political Science, Georgia State University.  Email: polhfc@langate.gsu.edu .

THE SCANDAL OF THE STATE offers a feminist analysis of women in contemporary India. Despite this title, the book is less about the scandalous Indian state, or its postcolonial condition, than about various scandals in India’s regime. This provocative book underscores various dilemmas that arise in the context of scandal. In describing the development of several horrific incidents or conditions harming women, Rajan presents opposing considerations and arguments defending and critiquing what transpired. The book comprehensively demonstrates that feminist theories, as well as, in her view, other liberal, relativist, postmodern, and scholar-activist arguments, can produce opposite conclusions. It is often difficult to discern which of these arguments the author supports or what school of thought she prefers. It is not clear that such cases, whether hard or made to seem hard because of these critiques, is really the best way to evaluate the state of contemporary Indian women, or to understand whether the Indian state is really at fault. The book is indeed less about law, for which hard cases famously do not make sound rules, and more about the lack of full Indian citizenship for its women.

Following a theoretical introductory chapter, the book is organized into six chapters about scandals—a child involuntarily sold into foreign matrimony; a group of mentally-challenged, women involuntarily given hysterectomies to prevent their reproduction; prostitution and the rights of sex workers; the debates of secularizing Muslim personal law; female feticide and infanticide; and the arrest and capture of a female dacoit (kidnapper/outlaw). The book’s introduction shows that the author finds contemporary feminist theory lacking coherence. This view is underscored in the subsequent case studies, for each of which, Rajan concludes ambivalently because no satisfactory solution exists under a patriarchic state lacking the ideal programs need to prevent these situations from occurring in the first place. Furthermore, the book eerily ends without a conclusion, just the epilogue about how the dacoit was executed after her voluntary submission to the legal authorities. Whether intended by Rajan or not, it shows once again that the state cannot be trusted and there does not seem to be any exploration of what to do about this sad state except to indicate just how far it operates from its ideal.

Unlike in the subsequent case studies, Rajan’s critique of the Indian postcolonial regime in the theoretical introduction suggests her ambivalence.  First, the Indian constitution’s ostensible provisions forbidding discrimination are not implemented in two ways for women—negatively, through personal laws deferring to religious fundamentalism and positively, through quotas, such as in local village councils. Second, despite legal prohibitions of sexual and other violence against women, most violent crimes go unpunished with impunity. Third, poor women are subjected to various population control policies that deny them autonomy. Fourth, women workers lack rights as workers, as well as homemakers. Yet, they are essential to the development process, if India is to progress economically and socially. Consequently, women become reproductive subjects as gendered agents of procreation, rather than humans with rights. That is women are the objects, rather than the agents of change.

Rajan concedes that the state was formed by a society dominated by men often with the support of exploited women, who do not understand the shortcomings that feminist critiques reveal. This produces the first of many dilemmas: to argue against women’s preferences is to deny them democracy in favor of a theory of false socialization under the influence of patriarchy. Yet, there are also numbers, presumably large enough to be influential, of female activists who militate against dominating male influences. These take the form of women as election actors, litigants, petitioners and general activists. In the postcolonial setting of India, the main unit of analysis is the “gendered subaltern” interacting with the state. These feminists, alas, are divided into different camps, thus complicating the political agenda, even if making for a rich debate, as summarized both theoretically and in the case studies. Rajan’s preferences are difficult to discern, given her eclectic invocation of Foucault and Derrida, post-structuralist and post-modernist theories and terminology on the one hand, and liberal-constitutional, Habbermasian approaches in other discussions. For the uninitiated reader, the broad array of feminists cited and quoted are difficult to incorporate into this vexing dilemma of encouraging female autonomy infected by patriarchic socialization.

It is clear that Rajan wants a discursive debate and political activism to continue. She exhibits little tolerance for theory for its own sake. Her admiration for scholar-activists, as well as nongovernmental organizations (NGOs), who engage in critical service-delivery, as well as partnering with the highly imperfect state comes through. Rajan also critiques these state-led activities for all their inevitable shortcomings under the scrutiny of one form, or another, of feminist criticism. Ultimately, NGOs and activists cooperating with the state are doomed to submission and failure. So, these actors are both praised and set up for a fall, an unenviable position.

Her first case study of “Ameena” concerns an involuntary child marriage to a Saudi businessman. After a flight attendant discovers a distressed Ameena as she is departing the country, the Indian state is able to return her. The public is outraged by a nationalism that Rajan finds disconcerting. Initially placed in an inadequate state foster care institution, the author finds fault with the state’s inability to provide decent services, which could have saved Ameena the humiliation of being returned to the very parents who violated civilized norms by selling their daughter into slavery in the first place. She writes that Ameena shifted from “being the object of property (contracted by the sale by her father to another man in marriage for the sum of Rs 6000) to a passive subject of custody and then promoted her to the active, agenital role of the subject who is called upon to make crucial decisions based on her own wishes and choices” (p.58).

Yet, Rajan also expresses some words of sympathy for the parents, whose destitution is deemed an important factor in selling their daughter. However, since Ameena has chosen to return to her parents, Rajan seems stuck between denying her the right to live with whom she prefers and her implicit wish to protect the child against her instinctual desire to live with her parents. Furthermore, Rajan wonders if the Indian public’s indignation would have been so strong had the husband-purchaser not been a foreigner, but a domestic Muslim male. Ultimately, women’s groups in India supported the father and mother’s custody claim, which Rajan also finds uncomfortable. The Indian state’s “rescue” should not have been necessary since child marriages should have been prohibited. Nor should the parents be fighting for “custody,” since they ought never have lost their child in the first place. It is not clear that leaving Ameena in an institution would be more attractive, given that most states in the world have awful institutional care in social services. This would, of course, not be true in an ideal world, but that is not the world in which we live. Given that the parents made a terrible mistake, it is understandable why anyone would regret their obtaining custody, but that still may leave Ameena better off.

The dangers of institutionalization are underscored in Rajan’s second case, which concerns the involuntary hysterectomies imposed on eleven women “inmates” in Shirur. The human rights activists correctly saw such action as violations of their fundamental freedoms. The sterilization resulted from societal prejudices about the “mentally retarded” and about female sexuality. No “third world exigencies” could ever justify such an intrusive violation. Only the terrifying state institutions, where cruelty and violence reign, could tolerate such actions. Once again, if these women had not been abandoned by their families, they would not have been subjected to such cruelty. However, not all parents are capable of attending to mentally handicapped children. Rajan appropriately notes that there ought to be incentive programs that would make it possible for parents to keep such children and young adults at home.

The third case considers the legal prohibition of sex workers and prostitution more generally. While Rajan bemoans the humiliating trade that serves man’s sexual needs alone, she also questions whether any moral absolutism is possible under these conditions. By outlawing the practices, then criminality becomes associated with the trade. If prostitution were legal and de-stigmatized, then the women could earn a living under the safety of the law. Rajan even sees the sex trade as an area where women could finally achieve decent rights as workers, the area most overlooked by the law, in spite of its ostensible commitment to ending discrimination.

The fourth case involves the effort to implement a uniform civil code, which would end the special treatment afforded Muslim fundamentalists in family law issues of divorce and child custody battles between the sexes. Rajan is particularly pessimistic in this analysis, as “the contradictions between a secular constitution and a state that administers religious laws and is indulgent toward religious communities’ demands” (p.150). Here again, Rajan finds it difficult to reconcile her desire to satisfy the demands for equality and for autonomy of women’s decisions. She provides an interesting focus on the work environment, where claims against discrimination are strongest. However, it is not in this area where personal law makes its claims for supremacy over public law. It is not entirely clear how this would prevent women from being subjected to religious authority in divorce or custody battles. It might even result in their receiving even less assistance from the patriarchic state, which sometimes takes pity on the women who have no earning power.

The fifth case study concerns the killing of female fetuses (feticide) and babies (infanticide), particularly in the state of Tamilnadu. Rajan focuses particularly on the question of whether the issue should be condemned primarily in terms of universal human rights violations to life, or whether feminist concerns with discrimination ought to be more prominent. It is not clear why the choice has to be made, when both concerns are apt. Unlike other religious cum customary practices, the murder of baby girls should not be controversial. Yet, Rajan does subject criticism on the footing that even mothers opt for this practice, given their own preferences for sons, particularly since they are more capable of working on the farm and helping the family. This view which Rajan criticizes, nonetheless results from the powerlessness of women, who should be able to employ women and girls just as effectively as men or boys. There should be no doubt that mothers do not possess their girls as property which can be disposed without cause. The claim by Rajan that “rights discourse” may not be helpful seems dubious since there is no doubt that mothers have no such rights.

The final case, which ends the book, concerns the somewhat glamorous finale of a female dacoit, Phoolan Devi, in 1983. While dacoits are hated in the modern state for their violence, thievery and kidnapping, somehow a female powerbroker in the rural countryside is the subject of a shameful admiration. Devi was no Robin Hood, helping the poor. Like all dacoits and prostitutes, she was in the trade for the money. Yet, Rajan admires Hobsbawm’s notion of dacoits as revolutionary bandits. Tell that to the poor person who has been robbed or kidnapped. There should be no equivocation about terrorists and common law predators. Poverty and a corrupt state may increase their number; but the law is not and should not be contingent in such situations, where women and men are innocent victims.

In this book, Rajan’s interesting critique suffers from a failure to accept certain realities. One is that India is a poor country, which is actually more successful at democratization than any other poor country in the world. This certainly does not mean the criticism is inappropriate. Rather, some recognition of the limits to progress in a poor, traditional, multi-ethnic state is needed. Even in more modern states we find the various dilemmas presented are not resolved. Why should India be more capable at resolving them?

More importantly, this book’s interesting, but at times repugnant quest to find ambiguity and ambivalence in horrific circumstances deserves criticism. There should be no excuses in a book’s legal discussions that imply condoning female infanticide or dacoitry, even under the guise of explanation. Still, the strength of this book is its presentation of opposing arguments, in order to resolve debates about the state of women in a modernizing, democratic polity. Without such an attempt, it would be difficult to appreciate the breadth of concerns about applying feminist values to these complicated situations. It is acceptable that Rajan cannot decide whether she is a liberal, a postmodernist, or a poststructuralist. There are just too many considerations adduced by these intellectual constructs and methods, when addressing the hard realities that poor women face concerning issues of protection, rescue, custody, nationalism, homes, restoration, and especially their citizenship rights in a patriarchic state. The book is not a primer on policy, but a discussion document for critical theorists of feminism concerned with problems of developing norms of equality in a less developed country. Rajan reminds us that the social construction of the state needs to be analyzed before it can be effectively reconstructed.

Given the book’s objectives, much more discussion of how the state is formulated and developed is needed. The relative autonomy of the state from civil society ought to be analyzed. More ordinary situations, as well as the outrageous practices and controversies of the day could be more didactic. While Rajan complains that feminist analysis is often too monotonous with its spotlight on sexism, a fault Rajan carefully and successfully avoids, it would be helpful to focus on exactly what is at fault in her examples, rather than spreading blame around so broadly, that no policy can be inferred from the analysis. Still, as a broad introduction to the dilemmas of feminist approaches to empowerment in a poor country, readers will find the challenging reading rewarding, as well as inevitably distressing. For, Indian women are still not nearly in a situation of decent and reasonable equality.

Copyright 2003 by the author, Henry F. Carey.