Rape, Justice, and Hierarchy in
India

Prakash Desai, MD, and Reshma Desai, MSW

J Am Acad Psychiatry Law 28:357-9, 2000

The spectacle of a man being hit over the head witha
shoe by a woman as a form of punishment causes
disbeliefand wonderment. For failureto protect? For
condemning a woman who has been raped? What
kind of strange ritual is that? What form of justice?
Through Western eyes, crime and punishment seem
disconnected in this instance. In the West, crimes
such as these are prosecuted within a legal system,
where rules of evidence apply; upon conviction, jus
tice is carried out by someform of deprivation of life,
liberty, or the pursuit of happiness. Retribution is a
cornerstone of this notion of punishment.

Mary Ann Weaver constructs a scintillating story
of a poor village woman in India, an aspect of wom
en's awakening, what she calls an "epic social exper
iment," in a reportage in the January 10, 2000, New
Yorker article titled "Gandhi's Women." She ex
plores the sojourn of a woman from the so-called
backward castes (actually a tribal woman, a member
of the scheduled castes and scheduled tribes, so called
because of special status given to them in the Indian
constitution, and thus enumerated on a "schedule")
who rises to political powerand is elected to a village
council by new laws of local self-governance. Elected
through a "quota system" called reservations for the
scheduled castes and tribes, and women, the young
woman of about 40 loses in the game of male politics,
which is dominated by the upper castes, but contin
ues to fight for herself and for other causes including
those of women. Weaver accompanies the female

Dr. Prakash Desai is Chief of Staff, Veterans Administration (VA)
Chicago Health Care System, West Side Division, and Professor of
Psychiatry, University of Illinois at Chicago. Ms. Reshma Desai is
Coordinator, Community Developments, RainbowHouse, Chicago,
IL. Address correspondence to: Prakash Desai, MD, 820 S. Damen,
MP (11), Chicago, IL 60612.

leader and chances upon a major rural upheaval pro
voked by the rape of a newly married woman at the
hands of her father-in-law and exacerbated by her
own father's powerful reaction of shame. Mary Ann
Weaver stitches together history and a society in
transition, with a focus on women and the women's
movement. Within this article, there are several is
sues that deserve comment and further explication:
the status of women, violence against women in In
dia, that country'slegal system, and the culturalvalue
system that undergirds the events in this report.

Violence against women isendemic and common
place in many cultures and spans across history. Mil
lions of women, regardless of their age, class, race,
socioeconomic background, or culture, experience
some form of sexual violence, quite aside from epi
demic violence against them in times of war. Many
survivors of violence feel alone, ashamed, and often
blame themselves despite having been violated. In
deed, most cultures espouse mythology and mores
that support blaming the victim instead of holding
the perpetrator accountable. In India, which is no
exception, current statistics estimate that a woman is
sexually assaulted every 54 minutes. This is a gross
underestimate, since rape is rarely reported. Within
this cultural context, female victims of sexual vio
lence are seen as dirty and tainted. If assaulted, they
feel that they have no choice but to remain silent or
kill themselves to maintain the family's social status.
If theyaresingle, matrimonial prospects dim. If mar
ried, both the in-laws as well as their own families
reject them.

In the Indian psychological context, boundaries
around the self extend far beyond the skin and in
clude the family, community, and caste. Therefore,
following a rape incident, family members justify the

Volume 28, Number 3, 2000 357



Rape, Justice, and Hierarchy in India

conclusion that their honor has been violated, that
they have been assaulted and shamed. The grand
mother's choice (in this story) of the route to justice
also reflect the permeable boundaries of the self
within the Indian culture. She immediately went to
the indigenous court system, the caste panchayat.
Panchayats, thesystem described byWeaver, were the
norm in India before British institutions replaced
them.

The foundation of modern law in India is the
Anglo-Saxon tradition, introduced and imple
mented by the British during their rule, the Raj, in
the 19th and the first halfof the 20th century. The
structure and thecodes areborrowed; district, appel
late, and state Supreme Courts and the federal Su
preme Court. There are separate routes for civil and
criminal prosecution, and proceedings are governed
by an adversarial system with rules of evidence in
play. Atrial byjury was thenorm, but thejury system
was abandoned in the 1970s because impartial, ob
jective judgment by peers simply could not be
achieved. In addition, the courts are seen as tedious
and viciously slow. One common analogy states that
tortclaims are settled in the times of one's grandchil
dren. And hence, in the story at hand, it is under
standable that the actors resort to the more tradi
tional avenue.

Today, two kinds oipanchayats exist: one, politi
cal, created by recent legislation; the other, caste-
based, is the more traditional. The political structure
for local self-governance deals with economic devel
opment and social justice. It is an elected bodyat the
village and district level that has powers for some
adjudication. However, police functions are outside
of its province. The original version was a council of
elders for each of the various castes that saw to the
enforcement of customs, rituals, and norms of a par
ticular caste. This indigenous local justice invoked a
greater sense of ownership, and the justice metedout
was more powerful, authentic, and meaningful.
Modern legal institutions are experienced as formal,
distant, bureaucratic, overburdened, and subject to
manipulation, both legal and extra-legal, and thus
distrusted. The traditional court system operates as a
function of the caste, a system of social teamwork
that organizes social, private, and psychic life.

The Indian Hindi word for caste is Jati, akin to
genera in Latin, a system derived from the original
stratification of people into four classes, the varna

arrangement. The four classes were the priests, the
warriors, businessmen, agrarians, and the menial
workers, a division initially occupational and which
at some point in history became hereditary. The
classes subdivided and multiplied into the present
caste system. The principle dividing them, in the
main, were rules of food (who may eat with whom,
whose food, cooked by whom), and marriage (who
may marry whom, in the village, outside the village,
etc.). All significant life events, for example birth,
death, and marriage, occur within the context of the
caste. Caste is central to social orientation, and one
who violates boundaries established by the caste is
thrown out of its fold, loses all social anchors, and is
shunnedfrom relationships. The family as a whole is
also stigmatized. To be ostracized from one's caste,
then, is a form of deprivation, to be cast adrift into
isolation. Before the days of penitentiaries, a com
mon wayof punishment in India was to be banished
from one's caste and thevillage, to bedeclared, ifyou
will,persona nongrata. In Weaver's account, this was
the majorpunishment metedout to the father-in-law
convicted of rape, the father who insisted that his
daughter, the victim, commit suicide, and the hus
band who failed tostandup forhis wife. Having been
banished from the caste and the village, no one may
share food with them nor have any social alliance
with them.

The intrapsychic importance of the caste system
needs to be considered for a more thorough appreci
ation of the curious punishment imposed on the fa
ther and the husband. The maintenance and regula
tion of one's self-esteem, private and public, is
vigilandy guarded and that of the other equally re
spected. Respect for that esteem from other members
of the family and community is critical to one's self-
esteem. Hierarchies of age, gender, and caste govern
the rules of honor. Violations of these rules bring
about grave social and narcissistic injuries. Perpetra
tors of such insults have to ask for forgiveness with
total abjection to assuage the hurt.

Traditional punishments, comprising forms of
humiliation and reversals of status, included such
things as being made to ride a donkey facing back
ward or being garlanded with shoes. Not long ago,
when the golden temple, holiestofthe Sikhshrines in
India, was desecrated by Indian soldiers on the orders
of the central government, the chief minister of the
statewas punishedby the councilof the templeelders

358 The Journal of the American Academy of Psychiatry and the Law



Desai and Desai

for allowing the event to transpire. His punishment
was to sitat thegate of the temple and clean theshoes
of those who came to. the temple. Needless to say,
shoes are not worn when entering holy places in In
dia, because they are worn on thefeet andare made of
leather and therefore are very polluted and impure.
This reversal of status and self-humiliation remedied
the prior insult. The caste system also visualizes a
hierarchy, an order of high and low, governed by a
principle of substance-code, with qualities—such as
goodness, passion, and sloth—in different propor

tions inherent in members of a caste. An individual is
presumed to be particulate and permeable, and hu
man transactions involve exchange of bodily sub
stances, which change the nature of transacting bodies.

From ourpoint ofview, what isofmost significant
and difficult to explain in thereport is the heroic role
ofthe grand-mother-in-law, mother of the man who
raped the young woman, who behaved like few oth
ers might in taking up the cause of the victim against
her own son and grandson. That woman is truly
Gandhi's daughter.

Volume 28, Number 3, 2000 359