Navigating India: Reconciling Law and Culture

On the Delhi Metro, there is always one carriage that is designated for women only.  A cheerful, pink sign, reading “Women Only,” helpfully corrals the female lot to one-quarter length of the platform.  To my cynical mind, the purpose of the segregation is to protect women from the wayward hands, if not gazes, of men.  And so, when traveling alone, I always found myself standing obediently under the “Women Only” sign -- but not without a certain level of self-consciousness.  Yes, I am a woman, and therefore I will relegate myself to the confinement of a gender-specific train carriage.

I frequently observed university-aged girls in the female car chatting away with their male counterparts standing in the accordion tube shaped train divider (technically still in between cars, so as to not trespass the invisible barrier), and I would wonder whether the two were strangers who happened to strike up a conversation or, the more likely scenario, the two were in fact acquainted but still entered separate cars out of the need to be separated by some imperceptible force field, and then reunited in a mutual safe space where they would be chaperoned by the probing gazes of their respective carriage mates.  

Later, some of my Indian colleagues would explain that the segregated cars were as much for the protection of the male passengers as the female passengers.  Reserving one train car for the exclusive use of women, and leaving the remaining four or five cars to men, was a necessity, lest in the hustle and bustle of the congested train cars the men should feel intimidated or embarrassed by the presence of women, who they might accidentally touch --- or worse.

In other words, women must be isolated from men on public transportation, as much to preserve the dignity and modesty of men -- should women be unleashed into their private space -- as it is for their own protection.

I suppose that's one way to look at it.

I worked this past summer at the Delhi office of the Human Rights Law Network (HRLN), home to a cadre of lawyers, activists, community organizers, and nuns who work on public interest initiatives as varied as prisoner's rights, environmental justice, and communal violence.  My first assignment was to examine the tensions between two recent Supreme Court decisions affecting the country’s sexual minorities.  Later, I would be dispatched to the state of Uttar Pradesh – home of the Taj Mahal, the great holy city of Varanasi and, as it turned out, a relatively sizeable transgender and transsexual population – to investigate the impact of the rulings on the affected members of society.

In April, the Supreme Court of India had passed a landmark decision giving third gender status to the country’s transgender citizenry, known in some areas as hijras and others as kinnars.  The Court noted that gender identity was a matter of self-determination, independent of doctors and psychiatrists, and declared that transgender individuals belonged to a so-called “backward class,” which entitles socioeconomically disadvantaged groups to affirmative action programs in state education and employment.  

Even as the transgender community made seemingly landmark strides toward achieving greater human rights, however, just four months earlier the Supreme Court had upheld a colonial-era law criminalizing homosexuality.  That same law, Section 377, was later cited by the Court in the April decision as an instrument of discrimination against transgender people. 

The contradiction is stark: even as the highest court gave recognition to the fundamental human rights of the transgender community, it also denied the right of that same population to engage in “carnal intercourse against the order of nature” by upholding Section 377. 

Looking down into the atrium of the Delhi High Court.

I grappled with these fundamental gaps and inconsistencies in logic, not only as a law student but also from the naïve eyes of a novice tourist in India.  Why is my rickshaw driver pedaling against the flow of traffic, intentionally subjecting us to the onslaught of Tata trucks and auto rickshaws?  Why is the Supreme Court hearing over 30 cases a week a measure of its success, rather than an indication of the failures of the legal system?  How can the nuns working at HRLN advocate for women’s justice even while maintaining a staunch opposition to reproductive rights – both vibrant initiatives of the organization? 

I still don’t know.  I can’t wait to go back and find out more.