Scales of Justice in India

Martin Luther King had once observed that “Justice denied anywhere diminishes justice everywhere.” By the same token, justice denied to women diminishes justice to all. The UN Women’s ‘Progress of the World’s Women 2011-2012’, which has as its central theme, ‘In Pursuit of Justice’, notes that despite the constitutions of 139 countries in the world guaranteeing gender equality, for most of the world’s women the laws that exist on paper do not translate into equality and justice on the ground.

The Indian constitution is one among the 139 that uphold gender equality as an article of faith. But how do Indian women weigh in on the scales of justice? Here, too, is the same old story of paper promises and papering over promises. Looking back on the experiences of post-independent India, at least three significant hurdles have come in the way of women’s pursuit of justice: Lags in enlightened law making; the critical failure of the criminal justice system; and the lack of voice of significant sections of women.

The farcical fate that has visited India’s Women’s Reservations Bill – which seeks to ensure at least 33 per cent of parliamentary seats for women – is an example of the first type of hurdle. Every attempt to get the Lower House of Parliament to pass the Bill has been stalled over the 15 years since it was first introduced. Recently, when Lok Sabha Speaker Meira Kumar tried to build a consensus for the Bill across party lines, she was met by the same tired arguments against it that has always been proffered. The impact of this impasse is telling. As the figures in the UN Women Report reveal, Indian women obtained the right to vote and stand for elections in 1950 but today the female representation in the Lower House is just 11 per cent. Interestingly, according to the Report, over 40 countries in the world now have legislation to substantially increase women’s presence in legislatures and India’s immediate neighbours – Nepal, Pakistan, Bangladesh and Afghanistan – have constitutionally mandated reservations for women in their respective parliaments.

Lack of enlightened law making has also ensured that, to date, India does not recognise marital rape as a crime; does not have any provision of mandatory paid or unpaid paternity leave; and is only now getting down to coming up with a law on sexual harassment in the workplace.

The UN Women Report specifically observes that “the infrastructure of justice”, constituted by the police, the courts and the judiciary, has clearly failed women. This brings us to the second hurdle. In India, this failure has been well documented. In 1977, the Sixth Report of the National Police Commission recognised that the citizen has come to “doubt the capability of the law to protect him” (sic). Rape survivors, for instance, have revealed how difficult it has been for them to take even the smallest step in their journey to justice. Filing something as basic as a First Information Report in the local police station was rife with obstacles. They lacked proper legal representation, felt violated and intimidated by the procedures that were required to be followed, disadvantaged by their own ignorance of the law and were often left without justice at the end of it all, because of a prejudiced judiciary.

There have, of course, been some progressive judgments, which need to be noted. In the Delhi Domestic Working Women’s Forum v Union of India, the court drew up broad parametres for rape survivors and directed payment of compensation. In the Hussainara Khatoon v State of Bihar case, the practice of keeping victims of assault “under protective custody” for purposes of getting evidence, was condemned. But time and again, the highest court of the country has reduced sentences or acquitted alleged rapists on the most outrageous of arguments. In the now notorious Suman Rani rape case, the Supreme Court reduced the minimum sentence accorded to two police constables and pronounced that the raped woman appeared to be “used to having frequent sexual intercourse”.

It is not just survivors of rape who have nasty, brutish encounters with the criminal justice system. One of India’s most progressive laws for women – the Protection of Women from Domestic Violence Act, 2005 – still largely exists only in the statute books because of the apathy of the system. It should surprise nobody then that most women in India do not even attempt to seek justice. According to the National Family Health Survey (2005-2006), only one-in-four abused women had ever sought help.

The third major hurdle, the invisibilisation – deliberate or otherwise – of certain sections of the female population, is an almost intractable one. Consider the manner in which the great majority of Muslim women in India find themselves lost in a sea of indifference, with their right to education, employment and mobility curtailed. They continue to be governed by an archaic personal law that perpetuates discriminations like the triple talaq. A study by Zoya Hasan and Ritu Menon that came out in 2006, based on the findings of the first comprehensive baseline survey of Muslim women in India, revealed that Muslim women are more illiterate than Hindu women: 59 per cent of them have never attended school, less than 10 per cent have completed it. To compound matters, 26 per cent of educated Muslim women have illiterate husbands and less than 15 per cent claimed to be working outside the home. There is enough evidence to suggest that many among these women have been abused, beaten or abandoned, but rarely do they seek or gain justice.

There are other groups of women, too, who have no formal identity. In this category fall single women, women who have lost their partners, women in lesbian relationships, women with disabilities, transgender people and women in prostitution. Precisely because they do not exist in the eyes of the law, they cannot hope to access justice.

It is to counter these entrenched biases and asymmetries in society that the UN Women Report recommends 10 steps to make justice systems work for women. They range from setting up of one-stop shops that bring together vital services to training judges and systematically monitoring their verdicts.

As the Reports puts it: “Justice may be collectively desired, but it is individually experienced.” And sometimes, just sometimes, a single woman experiencing injustice can ensure that justice is collectively experienced. Vishaka, an illiterate anganwadi worker from Rajasthan, who tenaciously took on the system, ensured the famous Vishaka v State of Rajasthan verdict of the Supreme Court. It led to India’s first enforceable civil law guidelines on the rights of working women to be free from violence and harassment in the workplace.

We need more Vishakas and we need more judgments of this kind.

Womens Feature Service covers developmental, political, social and economic issues in India and around the globe. To get these articles for your publication, contact WFS at the website.