Dr. Haider Shah

Opinion is the medium between knowledge and ignorance (Plato).

A tale of two SC decisions- May 3, 2011 Daily Times

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COMMENT: A tale of two SC decisions —Dr Haider Shah

Mukhtaran Mai type cases are perpetrated by active criminal conspiracies of a big section of society with vocal or tacit approval of the right leaning section of the media

The Supreme Court (SC) judgement in the Mukhtaran Mai case has received massive media coverage as it had assumed an iconic status at the international level. Recently, some stories appearing in a section of the media have provided the other side of the story as well. I am an advocate of rationalism and the first and foremost requirement of rationalism is to listen to others dispassionately and be ready to amend one’s position after new facts become available. As I have written about this issue last week, it has become imperative to analyse the issue afresh in the light of facts narrated by some investigative journalists.

A former AFP news editor, Bronwyn Curran, has claimed that she had carried out an in-depth investigation of the case and reached the conclusion that Mukhtaran Mai was not gang raped. The journalist, however, admits that Mukhtaran Mai was a victim of vani (marriage to settle disputes) as is customary in many tribal societies of Pakistan. She claims that Mukhtaran Mai was forcibly given away by her family men to the Mastoi family as compensation for the alleged illicit relationship of her 12-year-old brother with a girl of the Mastoi family. The writer of the story concludes that the SC judgement was therefore based on facts and there was no possibility of any other decision in the case.

In my analysis, I had premised that the case was a miscarriage of justice not because the honourable court had erred in its judgement but because society had participated in a criminal conspiracy in the commission of the crime and then acquittal of the perpetrators. It is fair to say that the Mukhtaran Mai case has become more than a criminal case. It had an iconic status that called for a serious review of our social attitudes towards women, especially in the tribal and feudal sections of society. It will be helpful if I revisit the analytical framework on gender equality that I had proposed in an earlier article. We can view gender equality in a society as a progression of three levels. As in a tribal society women are viewed as a prized possession of males, the first challenge before any legal and social system is to ensure that women have equal rights of life, e.g. they are not killed at birth or used as chattel to settle family feuds or distributed as war booty. Once this level of equality is achieved, the next level is the equality in ‘positives’, i.e. those rights that enable women to make decisions on matters that are important for leading a progressive and fuller life, e.g. access to good education, choice of a career, choice of a life partner, etc. When a society has attained these two levels of equality, feminists press their third level of equality, i.e. right of equality in even negatively perceived activities, e.g. clubbing, smoking, drinking, flirting, etc. Our society is still struggling with the first level of equality as, despite the assurance of fundamental human rights by our constitution, women are still killed by enraged males to satisfy their perverted sense of honour or are traded off to settle family feuds.

The Mukhtaran Mai case was, therefore, not just about the gang rape of a rural woman. Sexual crimes of a heinous nature are committed even in the developed countries of the West. Those cases, however, being isolated incidents, shock the whole of society and reach their logical end in the glare of media attention. Mukhtaran Mai type cases of family honour and vani are different. They are perpetrated by active criminal conspiracies of a big section of society with vocal or tacit approval of the right leaning section of the media. Marxist sociology points out that ‘laws’ are the devices through which the dominant classes perpetuate their control over the oppressed classes. When the panchayats (informal courts) comprise men who think they are gods who can decide the fates of women in line with tribal customs, and when Musharrafs and Zardaris are more pressed by either saving the image of Pakistan or pursuing the mufahimat (reconciliation) policy, the faceless and voiceless victims stand little chance of getting justice by challenging the tyranny of the status quo.

The disappointment with the judgement of the honourable SC is not on account of the acquittal of the accused. This anguish is exacerbated by the likely consequences of the judgement. SC rulings have far wider social implications as they send out messages about the future national journey. In April, when the Pakistani SC’s decision provided an opportunity for festive celebrations to panchayats in Pakistan, the Indian SC came up with a different message altogether. In its landmark decision, a bench comprising Justices Markandeya Katju and Gyan Sudha Mishra said that the new trends of kangaroo courts, honour killings, khap panchayats in northern India and katta panchayats in Tamil Nadu were barbaric and illegal and the perpetrators of which required the harshest punishment. The apex court held that atrocities with respect to the personal lives of people, committed by brutal, feudal minded persons deserves harsh punishment and directed the state government to suspend and charge sheet the district magistrate/collector and SSP/SPs of the district as well as other relevant officials for their failure in stamping out such panchayats.

Of late, the Pakistani SC has won admiration of many for its bold and proactive role in cases of corruption. The Mukhtaran Mai case, having assumed an iconic status, was a golden opportunity to send a clear message that crimes against women would not be judged on the basis of ordinary evidence laws. It also provided an opportunity to suggest strict measures in stamping out the kangaroo courts and ensuring the first level of gender equality, i.e. equality in survival in Pakistan. It seems that the opportunity has been lost. Now it is the duty of the media, especially the electronic media, to be more vigilant. Investigative reporters should not only cover cases of crimes against women but also carry out sting operations to expose the conduct of panchayats and complicity of the local political and official administration. Hopefully, by building up a well-informed public opinion, the possible damage of the SC decision can be remedied.

Author: Dr. Haider Shah

Academic, Researcher and Writer

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