GENDER & JUDGES A JUDICIAL POINT OF VIEW
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GENDER & JUDGES
»
A JUDICIAL POINT OF VIEW
Sakshi
GENDER & JUDGES
A JUDICIAL POINT OF VIEW
Sakshi
08293.
Copyright Sakshi 1996. No part of this report may be reproduced or circulated
in any manner whatsoever without the prior written permission of Sakshi.
(2"dprint, 1998).
L- - I CTO
0 3298 ~
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Contents
Pages
Preface:. Hon'ble ChiefJustice ofIndia,
Mr. Justice A.M. Ahmadi
1
Sakshi 's Preface
2
Acknowledgements
4
Some Highlights ofJudicial Responses
5
A. INTRODUCTION
i.
Why Violence Against Women
8
a.
The Objective of the Gender and Judges Project
13
m.
What is Gender and Gender Bias?
14
tv.
What Do We Mean by Gender Sensitisation
17
V.
Methodology
18
vi.
Endnote
18
B. JUDGES
i.
Contextualising Judges
19
ii.
Women and Violence (General)
24
Hi.
Domestic Violence
26
iv.
Sexual Violence
41
v.
Dowry
64
vi.
Convention on the Elimination ofDiscrimination
Against Women (CEDAW)
76
vii.
Women in the Courtroom
80
viii.
Women's Access to Justice
82
C. WOMEN LAWYERS
83
D. WOMEN LITIGANTS
101
E. COURTROOM WATCH SUMMARY
116
F. CONCLUSION
120
G. RECOMMENDATIONS
123
APPENDICES
I. Sakshi survey ofPending Supreme Court
Cases of VAW (June, 1995)
128
II.
135
CEDAW
III. Recommendation No. 19(eleventh session, 1992)
Violence Against Women, New York, 20-31
January, 1992
149
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PREFACE
Women constitute almost one half of the globe's
population but their contribution to society has been
limited, not because they are not capable of making a
contribution as significant as that by men but because
they have been denied opportunities by men who for their
self-interest, desired that women should be confined to
certain roles only.
They have been victims of
exploitation by the male dominated society.
The time
has come when they should free themselves from the
shackles and fight for their rights and their rightful
place in society.
I firmly believe that a woman’s most effective
human right is education - education alone can make her
self"reli^nt and confident.
At the same time, men need
to be oriented about their obligations towards women.
Simultaneously, women need to be empowered to enable
them to claim their due share in decision making at all
levels including in positions of authority.
The present report based on some studies conducted by
"Sakshi" is informative and educative and reveals that
we all have still much to learn about issues concerning
women.
Judges need to apprise themselves of the various
view points that prevail in the society.
A feminist
perspective of the issues concerning women is equally
important.
A reading of the report will help to
overcome the general male chauvinist attitude that is
unwittingly nurtured by us.
CHIEF JUSTICE OF INDIA
New Delhi
December 20,
1996
Preface
•y-n 1989 the Supreme Court of India passed a judgement in which it used the moral
■ character and conduct of a minor victim to reduce the sentence of two policemen
who were convicted of gang rape. The behaviour of the minor was described by the
bench as “lewd and lascivious”. In response to a review petition filed against the
judgement, the same bench clarified that they were critical of the victim’s conduct i.e.
that she had taken seven days to report the crime. While the judgement is not unique, for
our purposes, it illustrates in the extreme how terminology used for women (even as it is
erroneously used in this case) entails strong moral judgement. Not necessarily because the
judiciary views women as less deserving of justice but because of the strong presence of
perceptions and myths which stamp women as a gender. The judgement was a setback
for hard fought legal changes won by the women’s movement, which while enshrined in
the letter and spirit of the new law, fell victim to the imperceptible realm of gender
inequality. This study is an attempt to address and analyse the realm of gender bias in its
relationship to violence against women, its genesis and impact, and how systematically it
eclipses women’s access to justice.
India’s constitutional promise of gender equality comes closest to articulating the
relationship between law and life, between men and women. But nowhere has that
promise faced greater neglect than in the area of violence against women. Experiences of
violence have virtually been excluded from most sex equality arguments. Equality
understood and defined in terms of women’s concrete experience is absent in all thinking,
including judicial adjudication when it comes to violence against women. It isn’t as if
judges deliberately look to condone such violence but in the words of one judge “perhaps
I’m not sufficiently equipped to see where the bias exists. How can I then effectively
fulfil the equality promise?"
The conservative nature of judicial decision-making in a country like India uses tradition
constantly as an argument and more so in the case of women even when those very same
2
traditions are violating legally defined rights of women. Law is supposedly a dynamic
process and has to keep pace with the changing needs and values of a society without
which it will fail to preserve the collective and individual health of its social structure.
Yet judgements are replete with references to women’s traditional roles and images even
when those very same images are instrumental in leading to violence and abuse. Sexual
abuse is acknowledged the world over as a sex specific violation. Not only are women
overwhelmingly the victims of such crimes but the perpetrators are generally men, a
recognition that is integral to how inequality between the sexes occurs and to the way
judges understand the violation of women’s human rights. The critical issue in the case
of gender is the fact that the very same issues, i.e. murder, assault, freedom of expression,
right to live without the fear of suppression and abuse, which uniformly are part of the
human rights agenda for all people somehow become merely crime specific to women
and therefore more complex and less deserving of serious concern. Women are the only
gender who face violence first from within the four walls of what they call family and
their safe space. To realise a woman’s right to live life with dignity guaranteed under
article 21 of the Constitution of India, means first to recognise the pervasive indignity of
women’s condition. This report is an attempt to highlight that condition which is often
clouded by myths and prejudices about women and violence which judges, like most of
us, harbour. Yet unlike us, judges are positioned to effect change.
This report particularly aims at change, through the acknowledgement that gender
equality is possible through an active reorientation of judicial perspectives of women and
of the violence they face.
In the absence of such change in existing attitudes, the
constitutional hope for women remains elusive.
Naina Kapur
(Director, Sakshi)
3
Acknowledgements
In our effort to persuade and seek change, we wish to especially thank and acknowledge
the following amongst many others for their time, patience and contribution to this report:
•
To the individual teams of Jaipur (Renuka Pamecha and Kavita Srivastava),
Bangalore (Anita Ganesh, Lucy Kumar, Dhanalakshmi and Leena Chakko), Madras
(Devika and Rama Priya), Guwahati (Mita Goswami and Arzoo Dutta), and Delhi
(E.K. Santha, Shivani Kapur, Advaita Marathe and Avantika Keshwani);
•
For their dogged research and tabulation skills, as well as work in preparing and
analysing team surveys: E.K. Santha and Shivani Kapur
•
For their additional research assistance into case law: Meghna Abraham, Anita
Shennoy, Prabha.K, Madhu Mehra, Protima Pandey and Sandhya Krishnan
•
For their clerical and administrative support: Kavita Sharma and Shirly Siby
•
For the financial support of the Good Governance Fund (Canadian International
Development Agency)
•
For the ongoing support of Jasjit Purewal Co-Director Sakshi.
In particular we wish to thank the 109 judges who were so forthcoming in terms of time
and interest for this project, the litigants and victims whose cause we seek to advocate and
last but not least for his unwavering support and encouragement, the Hon’ble Chief
Justice of India, Justice A.M. Ahmadi (Rtd.)
Sakshi
4
Some highlights of Judicial Responses
ender bias arises from stereotyped assumptions about the roles of men and
women. Below is a summary indication of myths and stereotypes, often
mistaken for gender neutral treatment, which some judges, if not most possess
about women. It illustrates how judges understand equal treatment of women
in law to mean gender neutral treatment, an approach which can never deal with the
complex nature of inequality. It does nothing to enable women to overcome the effects of
historic inequalities or present disadvantages. So for example, women in marital relations
have and continue to be viewed as subordinate to their spouses and therefore expected to
tolerate some degree of violence. It perpetuates the belief that, women who are sexually
abused, somehow 'asked for it'. And it implies there are culturally specific justifications
for dowry and therefore, for offences committed against women in the name of dowry.
The following statistical summary is significant in the insights it provides about the
values and attitudes inherent in judicial perceptions of women who come to court in
situations of violence. While the study covered a relatively small number of judges (109
judges in all), the cross-section of respondents reflects the views of judges from both
regionally and judicially distinct backgrounds. The statistical highlights set out below
should not be understood in purely numerical terms but as reflective of attitudes, which
prevail (even amongst a minority ofjudges) in dispensing justice for women victims of
violence.
L Domestic Violence;
74% Preservation of the family should be a primary concern for women even if there is
violence in the marriage.
51°/ Women who stay with men who abuse them are partly to blame for their situation.
49% A husband who slaps his wife on one occasion in the course of their marriage does
not constitute cruelty.
48% There are certain occasions when it is justifiable for a husband to slap his wife.
5
In giving advice on what a judge would say to his married daughter (or other female
relative) if she was in a situation of domestic violence:
90% would not opt for legal redress in a case of domestic violence involving their
daughter or other female relative.
92% believe domestic violence is an under-reported crime and more pervasive than
statistics suggest.
34% Domestic violence needs to be addressed in a gender equality training program for
judges.
IL Women and Sexual Crimes;
76% Rape as sexual intercourse without a women’s consent is an adequate definition of
rape.
50% Child sexual abuse is not common.
2% A woman who says ‘no’ to sexual intercourse often means ‘yes’.
68% “Provocative” clothes are an invitation to a sexual assault.
55% The moral character of a woman is relevant in sexual abuse cases.
97% Women fear reporting a case of sexual assault.
III, Down
11% Daughters should not inherit property on an equal basis with sons.
34% Feel that dowry still has inherent cultural value.
88% Dowry related offences are on the increase.
IV. Convention on the Elimination of Discrimination Against Women (CEDAW)
78% Never heard of CEDAW.1
1 CEDAW is the first International attempt in law to define women’s human rights in terms of
women’s reality. The convention was ratified by the Government of India in August, 1993.
6
V. Women in the Courtroom:
62% The courtroom atmosphere is not conducive for women to speak openly about
violence.
28% Demeaning remarks to or jokes about women are made both within the court and in
chambers.
41% Women have access to justice in cases of violence less than 40% of the time.
22% Categorically disagree that there is a concept called "gender bias".
VI. Evaluation of Questionnaire and Methodology;
77% Sakshi’s questionnaire was fair.
75% Sakshi’s questionnaire was worthwhile.
68% Would be willing to participate in a gender equality training program forjudges on
violence against women.
7
30
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A. INTRODUCTION
4
his report is an effort to make law not only effective and judicious but to make
it more equal. It examines that aspect of equality rarely considered, namely,
does a woman in a situation of violence receive justice, which is sensitive to her
gender? In searching for an answer to this question, it looks at how the judiciary
views women who approach courts of law for redress in situations of violence. How does
a Court interpret such violence in terms of substantive equality for women? How do
women respond to violence? What do women seek when they opt for judicial redress
from violence? Do judges understand violence as women experience it? Do they feel the
need for opportunities to better understand issues raised in the area of gender abuse?
Given the constitutional promise of equality, this study seeks to find ways which will
enable men and women to enjoy access to rights and quality justice on the basis of
equality and without discrimination. It is in pursuit of this objective that women who
approach courts of redress can do so without being stereotyped by gender prejudice and
are instead understood as a class of persons subject to certain gender specific realities
associated with being women.
i. Why Violence Against Women?
rom 1989 to 1993 there was an overall 25.2 percent increase in crimes against
women in India. From approximately 65,000 cases in 1991, this figure increased
to 100,000 by 1993. The National Crime Records Bureau in its 1994 report
revealed an appallingly low level of convictions and an increasing number of
pending cases in crimes against women cases.2 In the case of rape for example:
2
Crimes Against Women have been identified as those crimes which exist under the Indian Penal
Code, 1860 (IPC):
8-
“...Out of the total cases in which trials were completed, 41.5 percent ended
in conviction during 1990. 34.2 percent in 1991, 33.8 per cent in 1992, 30.3
per cent in 1993 and 30 percent in 1994. Thus the acquittal percentage is
showing an upward trend over the years. The rate of disposal of cases in
courts was 23.9 per cent in 1992, 16.8 per cent in 1993 and 17.7 percent in
1994. On an average, 80 per cent of the cases remained pending for trial.
This is a disquieting status.”
In other words out of every 100 cases of rape that actually went to trial, 80 remained
pending. In the remaining 20 cases there were 5.5 convictions and 14.5 acquittals. The
over-all average conviction rate for rape offences has been consistently lower than other
less serious crimes such as burglary7 and theft.3 Yet the experience of violence against
women cannot simply be understood in terms of either statistics or the existing law.
Women experience violence within their homes, in public places, at work, in education
systems and yet none of these forms of violence are effectively covered by the law which
claims to define crimes against women. For this reason, women’s context and a judicial
understanding of that context needs to be acknowledged so that judicial discretion and
perspective become more effective for women to access the law.
Sakshi undertook this radical area of inquiry because we have been involved in exploring
the linkages which exist in a woman’s life on her road to secure final justice. In mapping
that road, we began with a victim’s own perception of violence especially when it is
perpetuated by a man known to her. In context of the home, emotional ties and the
i. Rape (sec. 376 IRC)
ii. Kidnapping & Abduction for different purposes (sec. 363-373 IRC)
iii. Homicide for Dowry, Dowry Deaths or their attempts (sec. 302/304-B IRC)
iv. Torture, both mental and physical (sec. 498-A IRC)
v. Molestation (sec. 354 IRC)
vi. Insulting modesty (sec. 509 IRC)
3 See Crime in India 1994, National Crime Records Bureau (Ministry of Home Affairs)
9
tendency to revere marital/family relationships have discouraged women from expressing
any kind of displeasure or unhappiness at what goes on. But in a situation of violence her
logical next step means she must assume the enormous burden of breaking those ties.
That step is in most cases unacceptable to her family. She therefore struggles between the
violence and the emotional ties that bind her to silence. When she does step out, she does
so as a complainant who approaches the police. By and large the police repeat her
dilemma in siding with the family and reaffirm traditional concepts of honour, shame,
dignity and guilt. Law enforcers do little to encourage her to seek legal redress. At most
they burden her with the fear that if her husband is charged, what will become of her?
Even then, where a victim of domestic violence still opts to pursue her case, she is
directed by the police to undergo a medico-legal examination /report. In that case, the
form to be completed requires a doctor to indicate whether the injuries she suffered were
“simple, grievous, or dangerous”. The Indian Penal Code describes “grievous” hurt in
terms of the degree of injury to different body parts i.e. loss of hearing, loss of limb, bone
fracture and so forth.4 Irrespective of the mental and emotional trauma experienced by
victims of domestic violence, police response to her complaint will be determined by
whether or not she has suffered a ‘sufficient’ degree of violence. Even if she appears
black and blue, in the absence of a fracture, her injuries will be recorded as 'simple'5 in
which case, no action will be taken.
Assuming this victim does finally reach a lawyer, she does so with a weakened sense of
clarity regarding the violence she has suffered and an ambiguous sense of her rights, both
4 Sec. 320 of the Indian Penal Code, 1860(IPC) describes ‘grievous’ hurt as:
"First- Emasculation
Secondly - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing of either ear.
Fourthly- Privation of any member or joint
Fifthly- Destruction or permanent impairing of the powers of any member or joint
Sixthly- Permanent disfiguration of the head or face
Seventhly- Fracture or dislocation of a bone or tooth
Eighthly- Any hurt which endangers life or which causes the sufferer to be during the space of
twenty days in severe bodily pain, or unable to follow his ordinary pursuits.”
5 This fact was confirmed by I.G.s (Inspector General ) of police at a meeting on “Gender
Sensitization and the Police" held at the National Police Academy, Hyderabad (May 1996) at
which Sakshi was invited to act as a resource group.
10
of which give rise to even more doubts. The lawyer in addition, becomes a reflection of
her confusion because he/she then points out technical loopholes in the law which, render
her case ambivalent. Thus for example in the case of rape, a complainant’s delay, her
behaviour, her relationship with the rapist, her medical report are all used against her
technically without any attempt at trying to legally specify her context. Similarly in
domestic violence, family assets such as dowry/stridhan or right to property all become
issues. Most lawyers are wary about disturbing existing arrangements of family property
even when pitched against violence which women may undergo on account of such
property.
In other words, the response of lawyers once again differentiates between abusers in the
home and other violent criminals, instead of perceiving their similarities. Once again the
woman is left both conftised and unclear as to what is in her best interest; how her interest
compromises the interests of her family and whether in exercising her legal rights she is
being selfish and overlooking the interests of that family.
Finally, when a victim does reach the courtroom, all the confusion and dilemmas already
encountered by her in the case await her in the courtroom through judicial
pronouncements which are not only prejudiced against her, but also marginalise her
context. Her gender continues to isolate her. Sakshi, in its history of working with women
within their context, has tried to reduce this gender isolation. This research was perceived
by us as the logical next step in doing so.
We focused this study on violence against women both because it is Sakshi’s area of
expertise and largely because violence against women covers a broad spectrum of abuse
and discrimination. Our work with grass-root women and organisations is what first
brought us in touch with the complexities and challenges thrown up by the issue of
Violence Against Women (VAW). Across class and caste, we found issues relating to
violence amongst the most complex to deal with, especially when it came to sexual
violence. And the issues always involved complacency towards the abused women, anger
11
at her assertion, social ostracism, silence, myths and so on. Worse still were the large
number of women who felt legal redress was beyond their scope or reach. Those who did
finally access the system were often disillusioned with the outcome.
From the outset Sakshi found that sexual violence is a baseline crime that affects all
women at some point in their lives - whether it is actual abuse or simply the fear of such
abuse, all women fall within the broad experience of that crime. The age, class or caste of
the woman seem to provide no barriers to this pervasive crime.
We also found that violence against women by definition is primarily violence
perpetrated by one gender on another. Informal acquiescence in sexual violence itself has
to be the most extreme form of discrimination against women yet it is often the most
hidden, passive and almost conspiratorial form. It occurs in every area of women fs lives
at work, at home, on the street, in public and private spaces. Ifs discriminatory nature
stems from the fact that violence is behaviour that hurts, humiliates and instils fear in a
woman fs life and more often than not remains unquestioned or unchallenged.
j''
At present the law on violence against women is piecemeal and inadequate. It prevents an
integrated response to, and an understanding of, the violence that women experience.
Therefore making judicial perceptions and attitudes to a woman’s context more sensitive
are all the more relevant as part of an effort to develop an integrated gender equal
response to women and the law. The Gender and Judges Project sought to determine
why and how we might try and dialogue with the judiciary to link women in situations
of violence to their right to equality. Despite the global attention around VAW, its
incidence and legal reforms, VAW is pervasive and ever increasing. It was time to ask
therefore if there was a need to build perspectives on how judges perceive both VAW and
women who experience such violence.
12
ILThe Objectives of the Gender and Judges Project
-yn recent years, various arms and institutions of the State have become attuned to
I issues around gender especially in view of the World Conference on Women held at
Beijing in 1995. A gradual recognition of the need to educate various institutions to
issues of gender has been expressed both within and outside government. It has led
to an increased effort in training on gender issues for the Police, the Indian
Administrative Service (IAS), educators and the like. Yet the most important facet of the
legal establishment which has yet to be exposed to gender equality education is the
judiciary.
Prior to this project our only access to perceptions of women by the judiciary have come
from judgements which in themselves expose assumptions about women far removed
from women s reality. Those assumptions have often projected women as ‘bold’ and
therefore ‘unchaste’, wof loose character and easy virtue’, ‘prone to lying’, ‘of a far
fetched imagination’, ‘motivated by a sense of vengeance' and therefore in one way or
another responsible for the violence they suffer. Where a woman complainant is believed,
she is perceived as “weak”, “helpless” and “ruined for life”. Accordingly, such women
are met with a response that is not short of being paternalistic or patronising. In other
words the criminal justice system does little to expand a woman’s ability to exercise her
rights with dignity. Instead it limits its response to one of either protecting her or judging
her. In the area of violence, that view is a matter of concern given the large number of
women exposed to some form or other of sexual violence. The starting point for any study
of gender perceptions by the judiciary must therefore be women’s experience. And that
experience has shown that when women approach the legal system they are faced with a
set of assumptions and stereotypes held by the criminal justice system which frequently
characterise legal judgements far more than the logic of law itself.
13
Proving the allegation of gender bias is off course difficult and for that reason more
difficult to correct. The judiciary, unlike other institutions, observes strict protocol and
is stamped by the belief that, above all, a judge must remain impartial and neutral, A
belief which follows the notion that judges pass judgements according to some objective
truth- a truth chiselled and defined in ways largely unaware of considerations of
gender equality.
iii. What is Gender and Gender Bias?
n December 18, 1979, the U.N. General Assembly adopted the Convention on
the Elimination of Discrimination Against Women (CEDAW).6 It was the first
time United Nations (U.N.) convention acknowledged gender. Till then, States
applied international and regional human rights conventions sparingly to
address violations of women’s rights. Even in the case of CEDAW, more governments
expressed ‘reservations’ to this convention than to any other U.N. convention. The
Convention is the most significant international statement on gender, because it asserts
that irrespective of race, class or caste, in defining the rights of individuals, gender is a
distinct area. The Government of India ratified CEDAW on August 8, 1993.
o
By acknowledging gender, CEDAW subsequently gave rise to a more specific statement
that violence against women is also a fundamental violation of human rights.7 This fact
was specifically recognised by CEDAW read with Recommendation No. 19 to the
Convention. Article 1 of CEDAW has defined discrimination against women as:
“...any distinction, exclusion or restriction made on the basis of sex which
has the effect or purpose of impairing or nullifying the recognition,
6Adopted onDec. 18, 1979, entered into force on Sept. 3, 1981, G.A. Res. 34/180, U.N. GAOR,
Supp. No. 46 at 193, U N. Doc. A/Res/34/180 (1980)
7 The Convention on the Elimination of Discrimination Against Women 1979 read with
Recommendation No. 19 (eleventh session, 1992) Violence Against Women, New York, 20-31
January, 1992; See also UNITED NATIONS COMMISSION HUMAN RIGHTS REPORT BY
SPECIAL RAPPORTEUR ON VIOLENCE AGAINST WOMEN, 22.11.1994
I
14
enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental
freedoms in political, economic, social, cultural, civil or any other field.”
The Recommendation goes on to add that:
i
"Gender based violence which impairs or nullifies the enjoyment by
women of human rights and fundamental freedoms under general
international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention. These
rights and freedoms include, inter alia
•
the right to life
•
the right not to be subject to torture or to cruel, inhuman or degrading
treatment or punishment
•
the right to the equal protection of humanitarian norms in time of
international or internal armed conflict
•
the right to liberty and security of person
•
the right to the equal protection of the law
•
the right to equality in the family
•
the right to the highest standard attainable of physical and mental
health, and
•
the right to just and favourable conditions of work.”
In light of CEDA W and for the purposes of this study therefore, gender is understood
to describe more than just the biological differences between men and women. It
underlines those substantive differences, whether real or perceived, which classify men
and women as having different roles, different duties and therefore different rights. In
this context men and women experience the legal system differently and therefore
justice differently. CEDA JV helps take the concept of equality beyondformal equality to
15
address hidden yet systemic forms of discrimination against women which deny them
access to justice based on their own priorities and needs.
Gender bias therefore includes stereotyped assumptions about the roles of women and
men that disadvantage women. As a result of this stereotyping, women are believed to be
and are treated as though they are less entitled, less valuable and less worthy than men.
When a legal system perpetuates stereotyped roles of men and women, it reinforces
discriminatory treatment. The starting point for a discussion on gender equality education
of the judiciary therefore must be the recognition of gender equality as a legal norm. The
Constitution of India (in particular articlesM and 21) and India's adoption of various
international conventions include a commitment to eradicate discrimination against
women and to achieve gender equality.
Our guidelines for determining gender inequality in judicial perceptions therefore, were
threefold:
i. Where women are denied rights or burdened with responsibilities on the basis of sex;
ii. When women are subjected to myths and stereotypes about “proper behaviour’ which
ignores their individual needs and priorities; and,
iii. When women are treated differently on the basis of sex in situations where sex should
make no difference.
Our study showed that many judges ascribe to a basic form of gender inequality bias
which includes the assumption that women conform to a single profile or a small range of
profiles despite individual differences, and where the inequality is largely founded in
ignorance and misinformation regarding the economic and social realities of most
women.
16
jy. What do we mean by gender sensitisation?
eminist iesearch within India has tried to work with an integrated, vertical concept
of what constitutes women’s experience. In the last ten years we have begun to
realise that gender equality education involves collecting information, collating it
and sharing it with those concerned through personal interaction to ensure collective
action. Although progress has been made in other sectors, the judiciary is one of the most
significant bastions of traditional attitudes around women and violence where much work
still remains to be done. As a judicial forum, judges are required to be more just, more
fair, and more conscious and informed about women’s rights.
Keeping this perspective in mind, the specific objectives with respect to the Gender and
Judges project were defined as follows:
1. Io analyse gender bias, if any, inherent in judges adjudicating in different Courts
(namely, at the District Court, the High Court and Supreme Court levels) in cases of
Violence Against Women (VAW).
2. fo assess judicial understanding of concepts related to gender specific crimes and to
juxtapose this to the experiences of women, including those of female lawyers and female
litigants.
fo document how judges perceive the environment in which they operate in terms of
gender.
4. To assess the extent of judicial knowledge and awareness in regard to the Convention
on the Elimination of Discrimination Against Women (CEDAW) in addressing women
and violence as a human rights issue.
5. To provide recommendations on the form and content of gender equality training for
judges with reference to violence against women.
17
v. Methodology
o gather information for our research, we realised the need to have broad based
representation for which we identified five centres: New Delhi, Jaipur,
Bangalore, Madras and Guwahati. Ad hoc responses to the project were also
forthcoming from Punjab and Haryana, Uttar Pradesh and Bombay. Our
research led us toa 109 Judges at the District Court, High Court and Supreme Court. This
too called for a method of personalising perceptions, an approach which had proved
successful with the Tata Institute of Social Sciences, Lal Bahadur Shastri Academy (the
IAS Training Institute in Mussorie) and others involved with gender equality education.
We also further developed a comprehensive questionnaire administered through a
participatory process. Each Centre consisted of a team of one lawyer and an activist who
held joint consultations with participating judges. The teams assessed their survey of
Judges at each Centre and forwarded their findings to Sakshi where those findings were
analysed and documented for this final report.
vi. Endnote
"W"n the case of violations of women’s rights, the law has been inadequate, leaving
I women’s rights campaigners to turn to the law reform process for redressal. Yet
K effective reform only occurs when ideas and perceptions are receptive to
redefinition. Ours is a humble attempt to do just that - to redefine and inform; to
make that critical link between redefinition and women’s rights and to sensitise and
inform judicial perceptions/attitudes about the nature and importance of that link.
18.
C3
O
m
B.JUDGES
^Contextualising Judges
ef°re pursuing substantive questions about violence against women (VAW), it
T|
V ^was important to contextualise judges in terms of background and family. In
^^many ways, this portion of the questionnaire helped us place judges and
their views and show that despite an oath committed to “neutral” and “impartial”
justice, judges, like others, are clearly a product of their conditioning. In fact many
respondents were candid about their
If you could imagine a life after this one,
privileges as men even before they considered
would you choose to come back as:
their advantages as judges. When asked
whether a particular judge preferred to be
a) a man
63%
b) a woman
18%
bom again as a man or a woman therefore,
the majority opted for the former. That
preference was accompanied by a common
It does not make a difference
5%
I do not believe in rebirth
1%
belief that as judges see it, “women’s identity
in society is submissive and subjugated to
various rules and regulations imposed on her
As a human being
1%
Either one
2%
by society.” Most judges are resigned to
accepting certain assumptions about the role
of men and women in society, which included
No reply:
10%
the following:
ours is a ‘male-dominated society’;
a man’s life is much easier than that of a woman;
as mothers and as wives, women have far greater responsibility in society than men;
the known difficulties of being a woman are sufficient to want to be bom a man;
biologically, men are superior.
19
Having acknowledged the burden of being a woman, few judges redefined roles when
asked what they understood to be the role of Ma husband” and of ”a wife” respectively.
Traditional perceptions were paramount. Husbands emerged as ‘protector’ and ‘bread
winner as well as ‘friend, philosopher and guide’ for their wife and family. The husband
was also identified as one who could “inculcate moral values in family members.” The
majority of judges categorically viewed the husband as head of*the family. Most judges
surveyed were married to women who did not attend work outside of the house. Not
surprisingly, a wife’s primary role was understood by them to be one of ‘home
maintenance and child rearing’. At a philosophical level comments were forthcoming
about equality in absolute terms, such as a husband and wife are ‘two sides of the same
coin or two wheels of the same chariot’, but in practice, the underlying assumption was
that the home is a woman’s primary responsibility.
Given this traditional understanding of marriage and marital roles, 77% of judges were
strongly of the view that their daughter would be better off today married compared to
who felt she was better off single, a view which had more to do with ‘social norms
and conditions than the best interests of a daughter. An overwhelming number justified
their stand on the basis that “a woman’s life remains incomplete and unprotected unless
she gets married.” Marriage was viewed as the ultimate ‘safe haven’ for a woman that
ensures psychological security. ’ According to one view: “marriage is a must. It is
practical. Every human needs love and affection. It is an organised way of enjoying things
in the world.” At times judges located this view in Indian mythology, no less than the
Ramayan: “On the basis of the Ramayan, one can say that a woman has to live life with a
man. It means a women’s life is incomplete without a man.”
•The Ramayana is commonly believed to be written by the sage Valmiki circa
century B.C..
Ramayana is a pronouncement of the proverbial victory of ‘good’ over ‘evil’. The ‘good’ is
embodied in Rama the son of Dashratha. the king of Ayodhya. Rama signifies truth, justice and
piety. The evil is Ravana the king of Lanka, who kidnaps Sita (Rama's wife) and forces Rama to
declare war on him. Sita has been touted as the 'ideal* Indian woman. The common belief is that
Sita signifies ‘sacrifice’ and ‘virtue’- qualities that all Indian women should possess. Sita’s ‘agni
pariksha' (test by fire) is still seen as the ultimate proof that a wife can give of her virtuosity. A fact
i
20
Would you agree that your daughter or
sister (or any other female relative) is
better off today married or single.
If we are to draw on Indian myths, it is true that
Ram and Sita is projected as the eternal marriage,
a coupledom which is constantly resurgent in
Married
78%
each generation and in our culture, as the ideal
Single
8%
But the logical end to this coupledom is that
Depends
9%
whatever crisis Ram and Sita suffered, both
individually and together, Sita ultimately opts
out of that very coupledom. She chooses instead to return to the earth, an earth goddess both
autonomous and complete, far more powerful and creative than coupledom ever allows her
to be. Coupledom never acknowledges the power of her sacrifice so when cast out of that
coupledom by Ram, Sita chooses instead to raise her sons, send them to Ram, and herself
never return.
Consistent with the belief that woman as wives must be self-sacrificing for the sake of the
society, judges felt that violence should never be a basis for marital break-ups. Instead, it
was argued that ‘even if the husband is cruel, the wife must try to change him’ given that
marriage provides the necessary status and security a woman requires to survive in society.
Presumably, these advantages are bestowed on the wife by the husband even if he is an
abuser.
According to judges, marriage assumes an all - consuming presence in the life of a woman
and it is only through marriage that she acquires the following:
personality
family
security
sex
that has been pushed to oblivion is the statement that Sita makes when she refuses to stay with
Rama after her 'agni pariksha'. Instead she withdraws and returns to her (literal) mother, Earth.
21
children
Social acceptance
a settled mind
companionship
understanding and tolerance
peace
civility
fulfilment
dignity
motherhood
In addition to these perceptions, judicial responses to what generally constitutes ‘improper’
behaviour for a woman further established traditional gender bias. When asked therefore,
what they would describe as “improper” behaviour for a woman, judges expressed the
following:
=> 71 %: Where their daughter (a college student) returns home at 12:00 p.m.
=> 23%: A girl who wears a salwar kameez without dupatta, a sleeveless blouse,
jeans or a short skirt
=> 74%: A woman who gives sexual services to a man for economic survival
36%: A battered woman who leaves her children and her husband
61%: A woman who leaves her husband because he insists on sexual intipiacy
48%: A woman who sees her husband as a provider
=> 72%: A woman who has had sexual intimacy with more than one man
47%: A woman who has male visitors in her husband’s absence
=> 66%: A woman who insists on living with a man before she marries him
One reason forjudges understanding of ‘improper’ behaviour is related to beliefs about
’cultural’ expectations. When asked whether there are differences in the cultural expectations
of women in India compared to other countries, most judges agreed that
22
there are. While some judges acknowledge that Indian expectations of women are far more
rigorous than that of others, some attribute the plight of Indian women to 4 western influence’:
“...we treat women like mothers, give her respect and important positions in the home.
Only after westerners came did we start
Do you think there is a cultural
difference in what we expect of
women compared to what other
cultures expect of women?
disrespecting our wives....”. Ironically, others
viewed her position as a positive outcome of Indian
culture: “...we have a sublime culture.
Women are expected to love better, to be
Yes
79%
affectionate, to be tolerant of torture as well as a
No
15%
useful and rare model to others... women are
No reply
6%
more tolerant. They are the reason why marriages
last. If a man cannot slap his wife,
who can?'1
By and large, the family was rated as the icon of Indian culture. Not only was it viewed by
judges as a distinct and virtuous preserve of Indian culture but one dependent on woman’s
role to keep it so. In the family “the husband is God”; “woman is a Goddess” and a “wife
can have no sexual relationship with anyone other than her husband.” In the larger picture
therefore, the ideal Indian woman emerged as both a good mother and housewife where the
house is the husband’s castle in which she remains humbly subordinate. Within that cultural
picture is a version which expects virtue and perfection from women without any sexual,
social or emotional choices for her either within marriage or outside of it. With this cultural
picture in mind, judges were asked to describe the three most serious problems they can
anticipate for their daughter (or other female relative) as a woman in India today:
23
r
i. Fifty percent ofjudges identified violence against women as a matter of primary
concern. A view consistent with the majority opinion is that of all laws for women,
violence-related laws were the most deficient.
ii Twenty-eight percent identified “reputation” as the second most serious problem a
female relative will face. At the same time the onus to maintain one’s “reputation”
according to judges lies with the women which means adhering to certain expectations
such as: “behaving like a soft woman”; “balancing her behaviour”; “upholding Indian
culture”; “being an ideal housewife”; “avoiding attraction to fashion”, “checking her
manner of behaviour with men”; and above all “taking extra precaution to see that her
reputation is not affected.”
iii. Discrimination and economic independence were also identified as serious concerns
which female relatives will have to face in today’s world.
Our survey indicated that, the judges interviewed came from largely conservative backgrounds
where traditional notions of family, marriage, men and women, are adhered to; a context
which clearly influences the way judges respond to women (including their own daughter or
other female relative) in family situations. Yet family situations are the context in which
women form relationships - a reality that finds little space in judges ‘cultural’ notions of
what marital relationships should be. Marriage is viewed as the ultimate ‘safe haven’ for a
woman Despite that, judges believe the most serious problems they could envisage for
their daughter (or other female relative) as a woman in India todayis violence and that
the perpetrator ofsuch violence is commonly a male family member
iL Women and Violence (General)
iven that violence figured as a prominent concern for most judges even with
respect to their own families, we invited comments on violence against women
in general. Having identified sexual assault, sexual harassment, dowry harassment,
molestation, domestic violence and mental harassment as existing
24
forms of violence, 34% of judges recorded rape as the worst kind of violence a woman
could face. At the same time, except for 14% of the judges, the majority felt that women
must share the blame for what happens to them in situations of such violence, especially
in cases of dowry harassment, sexual harassment and domestic violence. In cases
Do you think women must share
the blame for violence
committed against them?
Should be blamed
64%
Should not be blamed
19%
No reply
7%
Depends
10%
of domestic violence and dowry harassment even
where the law does not view the victim as a responsible
party, judges attributed blame to ‘other’ women. In
no instance were judges prepared to place the
responsibility and liability of violence exclusively with
the men who abuse. In the case of sexual assault, sexual
harassment and molestation, ‘‘her dress and behaviour”,
“failure to take precautions”, and her “provocative”
nature were identified as reasons for why women invite violence.
Most judges found it impossible to believe that violence against a woman can be the
exclusive responsibility of the perpetrator but preferred instead to believe that the victim
herself somehow encouraged him. As discussed in a subsequent chapter, that view makes
women feel they are somehow responsible for what happened to them. Eighty-one percent
ofjudges accepted that violence against women is definitely increasing. The empowerment
of women through jobs, education and increasing self-reliance,
paralleled by a rise in social intolerance are, according to them,
are partly to be blame. Several judges also felt that a lack of
moral instruction, parental care, and religious teaching
combined with adverse and sensational press and media
coverage, as well as the growth of consumerism have
contributed to increasing violence against women.
25
In the last fifteen years,
do you think violence
against women has
increased or decreased?
Increased
Decreased
81%
11%
No change
Cannot say
4%
2%
No reply
2%
Over-all, our survey found there is no situation in which judges appear to address what is
the impact of violence on a woman complainant even though that approach would be
more fair, more just and more real in providing redress to women in situations of
violence. While judges appear more concerned about the context in which VAW takes
place, this is often used to undermine the seriousness of the crime. So where the context
involves family or marital relationships or somehow falls outside popular notions of ‘real’
violence i.e. street violence, stranger rape etc., judges were less inclined to interpret the
law in favour of women. By not acknowledging the reality of women’s systemic abuse
and the consequent deprivation of power they suffer, judges are unable to incorporate the
needs and characteristics specific to women as a gender for achieving equality for
women. On the contrary the blame for such violence is instead attributed in part to
women who are victims of such violence. The manner in which judges justified that
blame became apparent in their responses to specific kinds of violence against women.
Hi' Domestic Violence:
W
egally, and according to most judges, both physical and non-physical violence
■
>
amount to cruelty. In practice, such violence is “difficult to prove until and
J unless the woman is able to show signs of physical violence.”9 The law offers
both criminal and civil redress for battered women yet entrenched attitudes
about women, marriage and family often negate these remedies. Over - all, while the
blame for domestic violence is attributed to husbands, 40% of those surveyed identified
alcohol consumption as the most common reason why husbands commit such violence.
No explanation was forthcoming as to why a drunken husband would significantly beat
his wife and not any other person either in his home or while making his way home from
a drinking spree. Thirty-four percent believe abusive husbands suffer from mental illness
and 26% feel men
’Gender and Judges project interview with judges (Sakshi, 1995)
26
abuse their wives out of a sense of power. “Provocation” figured as the last of four causes
for domestic violence according to 27% of judges
surveyed. When asked to define “provocation” in a
Husband’s who beat their wives:
situation of domestic violence, judges described
i.
“occasions when a man fails to subdue his wife
ii. have consumed
verbally,” or when a husband returns home tired and
his wife “nags him or is unable to accommodate his
tiredness.”
Judges per se narrowly defined the parameters of
cruelty. For instance, a significant 51% ofjudges
still felt a slap to the wife on at least one occasion
areprovoked
alcohol
27%
40%
iii. come from lower
economic classes
27%
iv. have a mental illness
34%
v. enjoy having power
over their wives
26%
during the marriage does not amount to cruelty.
The occasions when it is justifiable to do so are:
a. When a wife behaves indecently;
b. The husband has been publicly humiliated by
his wife;
c. The wife does not discharge her domestic duties
(e g. she ignores the children or she challenges
their paternity );
d. When a man needs “to chide his wife”; ■
e. Because there is nothing wrong in an “occasional
beating”;
f Because one slap is often “a matter of love”.
27
A slap to his wife by the
husband on at least one
occasion in the course of their
marriage is cruelty
Agree
48%
Disagree
51%
Depends
1%
Each of these reasons is sufficient for a husband
Domestic violence is a family matter:
Agree
39%
Disagree
53%
Depends
No reply
in the words of one judge to “punish her like a
child.” That such violence did not seem to evoke
any sense of outrage and was not perceived as
the foundation of more extreme violence reflects
1%
traditional views about women and family
and helps explain why 39°/o ofjudges agreed that domestic violence is a family matter.
Keeping the ‘matter’ within the four walls of the home was a priority. According to 74% of
judges, preservation of the family is critical at all costs. Any notion of a legal wrong holds
little weight against “sacrosanct” notions of family and marriage which explains why a
number of judges were sceptical about women who leave their children and the matrimonial
home despite being subjected to serious abuse. Some justified this view stating that, uin our
country, family and marriage are two solid institutions so domestic violence should be
seen as an internal family matterandkept within
Preservation of the family, especially
the household."In advising their female relative
where there are children, should be at
in a situation of domestic, violence, judges felt
all costs:
women should confront such situations boldly and
Agree
74%
ensure that “the children don’t suffer. Any woman
Disagree
18%
who discards her children is the worst kind of a
Depends
2%
woman.”
No reply
6%
Having placed the burden of tolerance on women who face abuse in the home, 52% of
judges in a contradictory view stated that women who stay with men who abuse them, are
partly to blame. Either way therefore the woman is held responsible. Judges were also
28
unanimous in the view that there are situations in which women lie about domestic violence
including where:
i. her ego is hurt;
ii. she has been unfaithful;
Women who stay with men who
abuse them are partly to blame for
their situation:
Agree
Disagree
iii. she comes from a “questionable” family back
ground;
iv. she suffers from an inferiority complex; and
il
52%
v. she subscribes to a ‘western’ culture.
34%
Depends
8%
No reply
6%
Having attributed blame to women for domestic
violence and having assumed that women are
capable of lying about such abuse clearly influenced
why 43% of the respondents went on to state that physical assault ofa woman in the
home is not as serious as physical assault ofa woman on the street For the majority, in
the latter case, a physical assault is psychologically more harmful and more serious given
the public humiliation a woman would face. Further, abuse by a stranger is worse than
abuse by one’s husband. In other words the identity of the abuser influenced how judges
understood the seriousness of the abuse. The distinction between private and public violence
determined the nature of redress judges were willing to provide for women. Judicial
apprehension in redressing ‘private’ violence was reaffirmed when judges were asked whether
men who abuse their wives should be banned from
A physical assault on a woman in
the home is not as serious as a
physical assault on a woman in the
street:
Agree
43%
Disagree
52%
Depends
5%
the matrimonial home. Fifty-three percent said
they should not.
Reasons for this included:
It is impractical;
29
®
•
•
It is the woman who should leave the house and live on her own since she is the one
with the problem;
Should men who abuse their wives be
Such men need to be corrected and not
banned from the matrimonial home?
banned from the matrimonial home;
Reconciliation is a better option to
breaking up the family;
This response came despite the fact that when
judges were asked to estimate the incidence of
Agree
33%
Disagree
51%
Depends
12%
No reply
4%
wife abuse in the state in which they preside, they responded as follows:
i.
“It is too much”;
ii.
’’Minimum 5000 incidents per month”;
iii.
“Every minute 18 girls are burnt for dowry”;
iv.
’’At least 3000 such petitions are pending before me and another 3000 before the
principal judges”;
v.
’Tn the course of a year, I estimate 10% of wives are abused in this state”;
vii.
“In millions”.
While none of these assessments may be numerically accurate, they confirmed growing
awareness that domestic violence has increased. Judges are unanimous that domestic violence
is an under-reported crime. And still, most judges according to our survey were of the
opinion that domestic violence is “a family matter in which every attempt should be made to
settle things amicably through the intervention of elders and through other mediation.”
When asked what advice a judge would give his/her married daughter if s/he discovered she
was in a situation of domestic violence, only 10% opted for some form of legal redress.
The majority felt she should simply “adjust and try to please”. “Compromise” was the most
common response to this question, which according to judges could be achieved if their
female relative adhered to one or more of the following:
30
1.
A certain degree of tolerance
ii.
Patience
Hl.
Temporarily leaving the in-laws house
iv.
Address her own faults and “then change herself’
v.
Try to change the husband’s behaviour
vi
Determine the cause of such violence and then “avoid it”
vii.
Try to adjust with family members
viii. Use love and understanding to “improve the situation”
Divorce was only recommended in situations where the violence “is unbearable and
irreconcilable.”
While judges are prepared to recognise more contemporary forms of cruelty against women,
they still adhere to an instinctive belief that marriage provides women with the necessary
status and security to survive in society, a belief that betrays widespread judicial
misunderstanding and ignorance about the incidence of abuse against women in the family.
From 1989 to 1990for instance, torture of women by tbeir husbandsand relatives went
up by90%. In 1993,22,000 women in India were reported to have been tortured or abused.
This constituted 26% ofthe total number ofcrimes against women in that same year.10
Against this factual reality, judges still blamed women for the violence committed against
them, an assumption which finds no place in any otfier crime (it is never assumed for example
that the victim of a robbery is somehow to blame for the crime). The idea that women are
responsible for male violence is perhaps the most impenetrable of all myths.
Nowhere has this found greater expression than in situations of domestic violence.
It is the durability of this assumption expressed by judges in the course of our
interviews that allows so much male violence against women to continue unchallenged,
to the extent that even where women have suffered extreme violence, they
10 National Crime Records Bureau, 1983
31
are blamed for either provoking or tolerating that violence. These are the very myths that
have influenced judicial decision-making in cases of domestic violence.
Domestic violence is the one area of family, law, which shows up the clearest split in
terms of gender inequality across class, caste and religion. Indian law has still not evolved
adequately to deal with battering of women within the home. Even so, law reform extends
the definition of cruelty to include physical and mental abuse, which comes close to
acknowledging the reality of battered women, whose primary complaint is the mental
trauma they endure.11 In practice however, the failure of law to arrest the abuse of women
within the home has nothing to do with what women expect of the law or law reform, but
everything to do with how judges and lawyers seek to interpret that law for women.
When the exercise of legal rights is sought in the area of family for example, men and
women are still viewed as adversaries - a point of view, which shows up the absurdity of
'gender neutral' laws. To treat a woman who has been beaten on an equal footing with the
man who has beaten her obscures the line between victim and perpetrator. Though law
reform attempted to address that inequality by presuming that women who are beaten should
be believed, that single, ad hoc instance of reform can never tally with the asymmetry of
marital relations.
The underlying premise used for validating a certain degree of cruelty inflicted on
women is the sanctity and indissolubility of marriage, a view reaffirmed in judicial
pronouncements. The institution of marriage has been exalted as the "very foundation of
civilisation",12 and projected as something which is in the larger collective interest of
society. In other words, the larger social goal of marital/family harmony is often the basis for
marginalising concern for lesser degrees of matrimonial cruelty.13 The “preservation of
11 Section 498A I PC, 1860
12 Suresh Nathmal Rathi v. State of Maharashtra 1992 Cri. L J 2106 (at para 16).
13"lt is our common experience that minor frictions which get distorted into disruption are really
wear and tear of the wedded life. Stability of marriage, being in the interest of individuals, family
& society, the spouses be allowed to forgive and forget their differences and to lead the marital
bliss.” ibid, para 19.
32
marriage” assumes rigid gender roles for men and women as husband and wife, which
according to judges in our survey socialises the unequal status of husbands and wives.
Accordingly, women are socialised to bear the pressures of marriage and those who
withstand the test with silent grace epitomise feminine virtue, lauded even by judges. For
those who fail this test, the extent to which their experience of cruelty then gets
acknowledged will depend upon the notion of cruelty held by those in a position to judge.
Complaints of matrimonial cruelty are registered, investigated and adjudicated mostly by
men operating from notions/knowledge of cruelty as husbands, fathers and fathers-in-law.
The term 'male notion/knowledge' refers to knowledge, which is shaped and coloured by the
social and cultural context in which the individual is located. Men as sons (privileged from
birth), as husbands, fathers and fathers-in-law operate within the same cultural environment
as women but from socially superior positions. Their status and position in terms of their
social roles shape and explain their separate gender understandings.
Similarly, judges reflect a conservative male concept of marriage associated with “Indian
values” which has yet to take into account the changing role of women in a changing
society. Marriage therefore has been held to be ”
in the interest not only of the couple, but
in the interest of the society... that the marriage tie should not be broken ... it is the duty not
only of the couple but everyone in the country whether an individual or an
organisation
”14 including the courts to protect this institution.15 Such logic legitimises a
broad spectrum of cruelty as the routine "wear and tear of wedded life"16 , thus depriving a
complaint or challenge by a woman of its validity. Humiliation or ill treatment arising out of
"stray domestic quarrels by the mother-in-law”; or “crude and uncultured behaviour by the
in-laws or the husband towards his wife" can be treated as "mundane matters of normal
occurrence in the traditional Hindu joint families".17 This description is not exonerating
crude and uncultured behaviour' [a euphemistic term capable of covering harassment of
14ibid, para 7.
"It is my considered opinion that this court has the obligation .... to generate the proper social
order & to hold the community..." supra, para 15.
16See footnote 16.
33
every desw^mnj generaHy, but wiiere-sucft -behaviowr is specifically directed against the
wife/daugliter-in-law by other members of the matrimonial household.
This unclear distinction between domestic dispute and criminal cruelty is also part of the
legislative framework. Cruelty is a legal ground for dissolution of marriage in civil law and
the very same cruelty is punishable under criminal law.
The judicial test evolved to
distinguish between two kinds of domestic cruelty has been to require a higher degree of
proof of cruelty in criminal law than in civil law for matrimonial cases.18 This forms the
basis for differential treatment of cruelty against a wife in law. Hence cruelty in a
matrimonial case under civil law falls under the exclusive jurisdiction of the Family Courts,
which essentially treats such cruelty as a ‘dispute’.19 With its statutory objective of
promoting conciliation.... of disputes relating to marriage’ and its statutory powers of
employing marriage counselors,20 of refusing the litigant the right to be represented by a
lawyer,21 to adjourn proceedings,22 to facilitate protection and preservation of the institution
ol marriage and welfare of the family, the civil law through the Family Courts validates a
certain amount of abuse and cruelty in the family. The degree of validation granted would
vary with the judge’s social understanding of dispute and cruelty. The predominant concept
of the Family Courts Act is ‘preservation of the family’, a concept consistent with the
belief of 74% judges who agreed that preservation of the family should be at all costs
especially where children are involved. This may also explain why 48% of judges felt
there were occasions when it is justifiable for a husband to slap his wife. At the same time
where women stay in violent marriages, judges were equally ready to blame such women
tor remaimng in violent situations despite that from the victims and litigants interviewed,
psychological and economic constraints were critical factors which compelled them to
stay in abusive relationships. Rarely is it acknowledged that a woman’s failure to react is
a result of fear and duress. These contradictory stands reflect a larger conflict, which
18 $mt Padmabai v- state of Madhya Pradesh 1987 Cri. L J 1573 (at para 14).
C. Veerudu and Anr,. v. State of Andhra Pradesh 1989 Civil Justice NOC 52 (A P )
The Family Courts Act, 1984.
' ''
section 5 & 6 of the Family Courts Act, 1984.
section 13, ibid.
22
section 9, supra.
34
arises when domestic violence is exposed as similar to other criminal behavior with a
distinctively gendered character. While most judges might accept that husband’s do abuse
their wives, 24% of judges were ready to attribute the cause to a wife’s provocation, a
husbands consumption of alcohol, class and mental illness. All these were labels, which
allowed judges to attack male abusiveness obliquely without appearing to attack men in
general or marital relationships in particular. For example, where drinking was assumed
to be a cause for domestic violence, there was no attempt to understand why men who
drink specifically abuse their wives when they arrive home and not anyone else i.e. a
stranger on the street or any other member of his family or extended family. It also
ignores the fact that men who physically and mentally abuse a spouse are sober. Judicial
resistance to acknowledging domestic violence as criminal is reinforced when such abuse is
attributed to say, “alcohol consumption.” The alcohol/violence myth is one, which not only
mitigates men’s responsibility for violence but excuses it as behavior which falls outside
cruelty.23
Such an analysis is limited since it precludes any consideration of domestic violence within
the family as a product of unequal power relations. Instead, judges reaffirm that inequality
by preferring to criticise wife’s inability to ‘adjust’ to her spouse’s behaviour rather than
directing a husband to alter his. Such behaviour may involve a husband’s continued absence
from home till late night,24 lack of interaction bordering on intimidation25 and the like, as
having contributed to cruelty among other factors. Yet these experiences of cruelty are
slighted by judgements which transfer the blame on to a wife’s unorthodox, non-adjusting
23
Excessive drinking by the husband was rejected by the Court as amounting to cruelty. Instead,
the court found the deceased wife’s inability to adjust to her husband’s ‘habits’ as the reason for
her unhappiness. (See Harischandra and Anr. v. State of Madhya Pradesh 1987 Cr. L J 1724;
Jagdish Chandra v. State of Haryana 1988 Cri. L J 1048.)
24Husband continuously returning late at night soon after marriage held not amounting to cruelty:
Jagdish Chandra v. State of Haryana, supra; Sharad Burdhichand v. State of Maharashtra 1984,
Cri. L J 1738.
25 Sharad Burdhichand, Supra
In this case the wife of the accused died of poisoning within 4 months of marriage. Her letters
disclosed extreme unhappiness on account of her husband’s behavior towards her. He hardly
spent any time at home, returned very late and rarely spoke with her. These facts disclosed no
serious complaint against her husband, according to the Supreme Court. Instead, they were
35
nature, her high and unrealistic expectations from marriage... and so on. On the other hand,
men are mostly viewed as providers and guardians within marriage - a role bestowed upon
them by nature and protected by law. Long absences from home, lack of communication and
emotional neglect of the wife by a husband is therefore justified as the inevitable (and
thereby acceptable) outcome of this primary and serious pursuit of providing. It is this
sentiment which led the Supreme Court to find behaviour of this nature not cruel even
though it led to a woman's death within a few months of her marriage. The Court observed,
it is a "hard fact of life" that some men, like the accused, themselves (i.e. judges), lawyers
and others found "little time for the family" in view of their occupation.26
The tendency to blame the victim for causing violence, i.e. provocation, is also a means
of minimising the severity of the offence. Our survey revealed that this tendency found
legitimacy in judicial perceptions of marital violence. In a criminal complaint of cruelty
the degree of proof required will vary with a judge’s perspective on marriage and marital
relations. In their own advice to female relatives in situations of domestic violence, only
10% of judges were willing to opt for legal redress. The majority sought to avoid
seeking criminal sanctions against assaultive behaviour and preferred instead to instruct
or advise the victim relative to modify her conduct and “try to please” her abuser. In other
words to negotiate his violent behaviour against her own willingness to “adjust” hers.
Once certain kinds of behaviour gain legitimacy, any protest or challenge to it is subject to
dismissal or even ridicule. Where courts have intervened in such cases, they respond to
certain kinds of cruelty in precisely this way. In one instance of abuse for example, pressure
was employed by the family to convey its displeasure to the daughter-in-law, eventually
leading to her suicide within five months of marriage. Ill-treatment, open dowry demands
and burdensome domestic chores formed part of her complaint. Rather than inquire
understood to reveal a woman’s sad and morose nature, on not getting the "proper attention
which she thought she would get”, making her psychotic and open to suicide.
26Sharad Burdhichand ibid. Discussed in footnote 29.
36
holistically into the circumstances contributing to the cruelty she underwent, the court
singled out performance of her domestic chores as inadequate to constitute cruelty.27
Consistent with the majority view in our survey, ’compromise and adjustment’ of the parties
is a dominant characteristic of judgements.28 There is a general assumption that marriage is
a partnership/relationship of mutuality and sensitivity towards one another. This despite that
the whole burden of adjusting and compromise is unequivocally placed on the woman. This
can be gleaned from frequent analogies, which compare the wife to a “transplanted
seedling”.29 The marital home, it has been held, should be one of warmth and support
necessary in new soil to enable the woman to ’’get into a new mould; the mould which would
last her a lifetime.”30 In addition to casting the burden of “moulding” on the woman, the
analogy reinforces the popular notion of severance of all ties with the natal family upon
marriage. Case law reveals the extent to which this notion has contributed to the death of
women whose parental response to abuse in the matrimonial home is not unlike that of law
enforcers and judges. A certain degree of cruelty is socially acceptable and commensurate
with the subordinate status of a daughter-in-law. This, in addition to the deep seated notion
that a woman once married belongs to her matrimonial home and must bear her
(mis)fortunes with humility is responsible for refusal by a woman’s parents to rescue her
from matrimonial cruelty. The economic burden also keeps the natal family from receiving
their married daughter back to avoid incurring any further expenditure on her. Hence, letters
from a woman in distress to her parents expressing unhappiness, suffering and fear for her
life are either not taken seriously or tolerated. Ironically these same letters emerge as
‘evidence’ in a court to prove murder or abetted suicide of the woman. In some cases letters
convey unhappiness in marriage,31 while in others, unhappiness is linked to ill - treatment
27Smt. Shyama Devi and Ors. v. State of West Bengal and Ors. 1987 Cri. L J 1163.
28See Foot note 15, supra.
29There are a few instances when the courts have used the analogy of a transplanted seedling for
bride’s entering their matrimonial homes. “Every marriage involves a transplant.... When a tender
plant is shifted from the place of origin to a new setting ...” Para 13 Supra; Also see State v.
Laxman Kumar and Ors., (1985) 4 SCC 476, Pariben v. State of Gujarat 1992 Cri. L J 2919.
30Footnote 21, supra.
31See Sharad Burdhichand, ibid; Subedar Tewari v. State of U.P. & Ors 1989 Cri. L J 923
37
stemming from economic demands.32 In one case, a woman escaped to her relative’s house
from her matrimonial home twice in hope that her family would rescue her.33 She was
compelled to return to her matrimonial home despite her stories of torture. Eventually she
committed suicide. Letters, however, are still not the most common method of
communication in such cases. A woman’s family is always aware directly or indirectly of
her situation even when not expressly stated. Displeasure is often conveyed by either not
sending the daughter-in-law to the natal home at all34 or by not fetching her back from a visit
there. The lack or inability of parents to rescue their daughters from matrimonial cruelty is a
social reality, which receives little if any attention in judicial decision-making. In advice
they might offer to a daughter or other female relative if she were in a situation of domestic
violence, with the exception of one judge, no other considered taking their daughter back
home as a possibility.
As seen, the delineation of specific gender roles forms the ideological basis which
legitimises the unequal burden cast upon women to take a certain amount of cruelty in their
stride. Women are thereby presumed to possess a biological capacity to tolerate adversity.
Law enforcers apply this socialised knowledge of gender roles to judge her conduct and
response when it comes to the violence she suffers. It is the capacity of a wife to tolerate on
which the survival of her marriage hinges, lids mandate of tolerance and adjustment flow
from qualities deemed ‘innate’ and ‘natural’:
"Woman must rise and on account of certain virtues which nature has
endowed... to the exclusion of the man, due credit must be given to woman
.... Thus, woman who is capable of playing [a] more effective role in the
preservation of society... has to be respected.
She has greater dose of
divinity in her and by her granted qualities, she can protect the society
32
See State of Haryana v. Anil Kr. & Ors: 1984 Cri. L J NOG 118 (P&H); Jaspal Singh v. State of
Punjab 1984 Cri. L J 691; Kailash Kaur v. State of Punjab 1987 Cri. L J 1127; Smt. Padmabai v
State of M R. 1987 Cri. L J 1573.
33
State of Maharashtra v. Vasant Shankar Mhasane & Anr,. 1993 Cri. L J 1134.
34 Suresh Nathmal Rathi ibid at para 14; see also State v. Laxman Kumar, ibid (at para 57);.
38
against the evil. To that extent, woman has special quality to serve society in
due discharge of social responsibility." 35
The price of a woman’s ‘divinity’ is high. It is a means to deny her normal human response
to pain, indignity and cruelty. Such denial of judicial cognisance does not merely acquit the
perpetrator of charges of abetment of suicide; it demeans and ridicules the woman for her
inability to forbear by proclaiming her as pathologically unfit and psychotic.36 This logic has
also been commonly applied in cases of abetment of suicide. Apart from faulting the less-
than-womanly conduct of a wife who commits suicide to escape routine “wear and tear” of
marriage, the courts have given pathological explanation for such behaviours.
As our interviews with female lawyers and litigants revealed, family court judges were
the worst culprits of this logic. The courts came in for serious criticism as unsympathetic
towards battered women who are prepared to “wash their dirty linen” in public. That
separation between public violence and “private” violence was again illustrated in the fact
that judges surveyed made a clear distinction between violent behaviour to a woman on
the street as opposed to violent behaviour towards a woman in her home. It is a
distinction, which has operated to exclude gender-based violence from the human rights
agenda. Preservation of family is elevated above the principle of a woman’s right to
protection or to a life lived with dignity.
The language of human rights in addressing gender inequalities would make it
inappropriate for judges to reinforce these traditional boundaries between public and
35Sharad Burdhichand ibid. Discussed at footnote 34, supra.
36ln Sharad Burdhichand, ibid, the Supreme Court set aside the husband’s conviction for murder
of his wife. The court examined the letters of the deceased wife (married for 4 months), to
construe her as a secretive, extremely emotional, sentimental, sensitive, depressive, and
psychotic woman prone to suicide. Similarly, in Jagdish Chander v. State of Haryana 1988 Cri. L
J 1048 the Court observe: “She was probably a sentimental woman and did not like the drinking
habits of the appellant (husband) who cannot be held responsible for her suicide”,. See also,
Public Prosecutor v. Tota Basava Punnaiah & Ors 1989 Cri. L J 2330 where the A.P. high court
set aside the Suicide theory of the sessions court based on the logic that “ the deceased might
have committed suicide due to strained domestic quarrels in a joint family due to her own extreme
sensitiveness, sentimentalism and none of the accused can be blamed forthat”.
39
private spaces.37 The present distinction is what makes it presently possible to trivialise
complaints of domestic violence and disbelieve family plaintiffs as well as tender advice,
rather than redress, in terms of “compromise and adjust”.
37 As discussed in the section on CEDAW, Recommendation #19 on CEDAW is the first time the
line between ‘public’ and ‘private’ acts of violence has been abandoned and therefore begin to
address the needs of women in situations of domestic violence and/or rape.
40
iv. Sexual Violence
IT n 1995, child sexual abuse(c.s.a) received unprecedented attention in light of the sexual
■ abuse of an eight year old child by her father, a senior level bureaucrat of the Home
-JUMinistry with the assistance of four others from the ministry. That it took a high profile
case to enlighten the community on c.s.a indicates the degree of ignorance and
stereotyped notions, which continue to shape social perceptions of sexual violence.
In view of the rapid increase and visibility of c.s.a, it
was an appropriate time to ask judges about this crime.
percent felt that child sexual abuse is an
Do you think child sexual abuse
is common?
Yes
40%
No
50%
Cannot say
5%
abuse is carried out most commonly by servants (28%)
No reply
3%
and least commonly within the family (19%),
Decreasing
2%
uncommon offence existing only amongst “uneducated,
depressed and over-sexed people and /or people with a
prostrate gland problem.” According to judges, such
i
Thirty-one percent of judges did not answer this question indicating they either did not
know or wish to know about child sexual abuse. While research on child sexual abuse has
only just begun in India, a 1994 study carried out with 348 girls from schools and colleges
in Bangalore by Samvada (a Bangalore-based NGO) revealed that 83% of the respondents
had experienced some form of sexual abuse. Of these 13% were less than 10 when the abuse
took place. Fifteen percent experienced serious forms of abuse including rape, of which
31% were less than 10 years old at the time.
41
In 75% ofthe cases, the absuers were known to the girls abused by them the majority of
such persons being male family members.38
Do you think sexual abuse of
In a preliminary report on Child Sexual Abuse
children happens more often within
workshops carried out with 357 female students in
the family, by strangers or by
government and private schools in Delhi, Sakshi has
servants?
so far found that 63% of children have suffered some
form of child sexual abuse. Twenty-two percent have
Within the family
19%
By servants
28%
Approximately 29% of the students have been
By strangers
20%
abused by a person in whom they had complete trust.
By all
9%
The majority of abusers fell in the category of
No reply
24%
indicated experiences of serious sexual abuse.
relatives, father, grand-father or family friends.39
Given this limited understanding of child sexual abuse, judges were asked whether they felt
the existing definition of rape as sexual intercourse with a woman without her consent or
against her will was adequate. Seventy-six percent said it was. When we presented judges
with a situation in which a three year old child has been ejaculated on (but in no way
penetrated) by a neighbour and asked them to categorise this crime, they replied as follows:
i. rape (31%)
ii. attempt to rape (21%)
iii. outraging the modesty of a woman (10%)
38 Prelimiary Report of a Workshop Series ad Survey o Childhood Sexual Abuse of Girls, Ms. Aita
Ratnam Ganesh (Samvad, Bangalore, 1994) This tiding is consistet with the established psychiatric
view adhered to i Idia that: "Sex;ual mistreatment of children by family members (incest) is the most
common type. Sexual abuse by friends and acquaintances of the child or family is the ext most
common. Least common is sexual abuse by strangers." (Nelson Textbook of Pediatrics, 14th Edition,
USA 1992))
42
iv. unnatural offence (14%)
v. other (i.e. a sexual crime, violence, child abuse) (21%)
vi. no crime (3%)
Though moved by the seriousness of the offence, judges were not prepared to use their
discretion to broaden the interpretation of “rape” beyond it’s narrow, technical definition
of non-consensual penile/vaginal penetration40 and therefore categorised the crime as a
lessor offence:
Legally speaking it may not be rape but by common sense it is as bad as
rape.”
In practice, judges have also been reluctant to decide cases in this way. Two recent
examples illustrate the point. In the case of the government under-secretary accused of
repeated sexual abuse of his daughter, the abuse involved finger/vaginal penetration,
fmger/anal penetration and penile/oral penetration by the father of the child. Neither the
District Court, nor the High Court, nor the Supreme Court was willing to acknowledge
penetration of all three orifices of a minor child by her parent as 'rape9.
In the words of the District Court judge:
“In order to constitute an offence of rape, there has to be use of the male
organ, which must find place in the vagina of the prosecutrix. When [the]
male organ comes into contact with the vagina, only then offence of rape or
attempted rape would be. The word, ’’penetration” does not connote
penetration of any foreign object. There must be penetration of the male
organ and that too in the vagina. Otherwise, the act would constitute a
carnal intercourse against the order of nature."41
40 £-h-!ld Se^al Abuse: A Preliminary Report based on school workshops in Delhi (Sakshi 1996)
it is worth noting that there is nothing in the statutory law of rape which, limits “penetration” to
penile/vaginal penetration nor has such a narrow technical understanding of rape ever been
challenged but for the existing case.
43
Similarly the High Court was reluctant to uphold the charge of rape on the grounds of a
“traditional” understanding of rape.42 Worse still, the Supreme Court dismissed an appeal
in limine passing on the responsibility for change to Parliament!
In second and more shocking finding, the apex court revealed how judicial apprehension
around child sexual abuse is rooted in a blanket denial that it exists. The judgement
discloses a disturbing lack of understanding of child sexual abuse, prejudice, and
intolerance for a mother who complains of such abuse when it occurs within her family.
The tone of the judgement is determined by its opening observations on child sexual
abuse: “Some eerie accusations have been made by a wife against her husband”.43 From
the outset the perspective of the court is that “incestuous sexual abuse” by a father is
“incredulous”. It is this disbelief which reaffirms public myths and misconceptions about
child sexual abuse while the incidence of such abuse in India continues to escalate. Worse
still, such disbelief ultimately governs the Court’s unquestioning acceptance of one
version (the father’s) and unequivocal dismissal of another (the mother’s). Time and
again the court reiterates “the seemingly incredulous nature of the accusations against a
father that he molested his infant child (who would have just passed her suckling stage
then)”. In other words, fathers are incapable of abusing their children - a view reaffirmed
by the Court’s observations in open court that such cases of child sexual abuse are “the
rarest of rare case.”
The case deserves special mention as a missed opportunity for the judiciary to inform and
deliberate on the nature, extent and impact of child sexual abuse as a new and evolving
area of law. Instead it opts for stigmatising women who bring cases of incestuous child
sexual abuse deterring others from doing the same. In the present case, the mother was
described as a “vengeful” woman merely because she spoke of her marriage as
“extremely painful and unhappy.” The assumption being, women in unhappy marriages
41 C.B.I. v. K.C.Jhaku & Ors. order dtd. 31.1.96
42 Smt. S. Jakhu v. K.C. Jakhu 1996 (38) DRJ 29
43 Satish Mehra v. Anita Mehra : Judgment dtd. 31.7.1996 in Criminal Appeal No. 1385 of 1995.
I
44
have no recourse but to falsely accuse fathers of sexually abusing their own children.
The worst outrage is the father’s allegation that the mother herself molested the child to
implicate him. That allegation was used to counter the finding of an Indian paediatrician
that “on examination of the genitals of the child ... a wide vaginal opening - wider than
would be expected of her age group” was present. Surprisingly, the court chose to ignore
the paediatrician’s finding as well as a first police report filed when the family was in the
U.S. and which stated that the complaint of child sexual abuse was “founded”. Instead
the Court accepted the father’s oral submission that a U.S. doctor said the child had not
suffered such abuse. No document was ever filed to support this submission. Yet the
judge accepted the view of the father and concludes: “The aforesaid question, posed by
the petitioner in the context of expressing grave concern over what the mother might do
with the little female child for creating evidence of sex abuse, cannot be sidelined by us in
considering whether the case should proceed to the trial stage.”
Further, the Court having no known experience or exposure to the issue of child sexual
abuse, rejected the questioning process of the child by the Crimes Against Women Cell
(CAWC, a body trained to address crimes against women and children). According to the
Court, the Cell “has practically put on the tongue of the little girl that her father had
molested her” inferring that the CAWC was motivated in its case against the father. In
this regard, the questions and answers warrant attention:
“The questioner asked the child “what your daddy did with you” and the
child answered that he put his finger (and showed her private part).... the
next question put to the child was “Daddy puts what else”. The answer
“Daddy put his bottle” followed by “Where is papa’s bottle?” ... The
child kept looking at the drawn sketch and pointed to the part between
the legs.”
It is this process of questioning which leads to a third inexplicable yet disturbing
conclusion that “....we have no doubt that the purpose of such questions was to lead the
45
child unmistakably to the tutored answers.” No explanation is forthcoming as to what
would motivate the CAWC to tutor a child about such abuse.
Why did the Court adopt this negative stance? The answer seems apparent in the last
portion of the judgement, which addresses “the consequence of this nebulous allegation.”
In their view, the Court found the child was too young to “be subjected to cross-questions
involving sex and sex organs” and further that “the ordeal would inflict devastating
impairment on the development of the child’s personality”. The case was a classic
opportunity for the court to educate and inform itself about child sexual abuse. That it
chose not to is in itself a denial of equality before law for victims of such abuse. Instead
the judgement reaffirms what our survey revealed- serious lack of understanding and
information around issues of sexual abuse as experienced by women and children.
Unlike the case of child sexual abuse, in cases involving sexual assault on an adult
woman, judicial scepticism was shaped more by myths/prejudice than by the technicallegal limitations of the law. Legally, the crime of rape is defined around penetration i.e.
“Penetration is sufficient to constitute the sexual intercourse necessary to the offence of
rape” (section 375 of the Indian Penal Code) a traditional and very male definition.
Seventy-six percent of judges were content with this existing definition of rape. The
narrowness with which the judiciary views sexual abuse is also clear from the belief that
if it isn’t penile/vaginal penetration, it isn’t rape and if it isn’t ‘rape’, it certainly isn’t
serious. In a case in which a minor girl alleged the accused had forcible sex with her on
two occasions, the accused was convicted by the trial court. On appeal, the High Court
acquitted on the benefit of the doubt, reasonable or not that:
he [the accused] might
have tried to gratify his passion by necking with the girl and might have touched the
girl’s private parts forcibly with his hands causing her to misconstrue and
misunderstand the situation”.44 The problem is that when we look at a culture in which
rape is grossly unreported, it is because the definition of rape legally has nothing to do
44Ravinder D Patil V. St. of Maharashtra 1989 Cri LJ 394
46
with how violated women feel. This despite that progressive changes took place in the law
of rape with the 1983 Criminal Law (Amendment) Act. The most notable inclusion in the
new Act was that in certain kinds of rape, it would be presumed the women did not consent.
This would include rape by a police officer, a public servant, a jail superintendent, a hospital
manager, rape of a female under 12, of a pregnant woman and gang rape. Despite this, very
little, if any, change has occurred in the way judges perceive the larger implications, context
and nature of rape Thus judges were of the view that penetration of a woman is
“physiologically impossible without her consent” and that in any case women are “partially
to blame for such abuse. ’’Only one judge, a woman, expressed the view “that intention to
rape should itself be sufficient to convict a man of rape”, adding that marital rape should
also be recognised.
One of the most sensitive questions addressed by our survey was whether judges felt the
moral character of a woman is relevant in a case of sexual assault. Fifty-five percent of
judges felt the ‘moral character’ ofa woman is relevant Judges varied on whether her
character is relevant at the time of trial or at the time of sentencing.
For some judges therefore, scrutiny of a woman’s
The ‘moral character’ of a woman is of
moral character is essential since she may be
relevance in a case of sexual assault
“a
woman
of easy
virtue
who
has
provoked someone” and that “it would be
Agree
55%
a factor in establishing her consent” to sexual
Disagree
47%
intercourse. Many judges were disinclined
Depends
4%
toprotect a rape victim if she did not comply with their version of ‘virtue’
including that virginity is of paramount importance for a woman before marriage.
The moral character of the victim was more important to most judges then was
the evidence against the accused. In cases of rape therefore, unlike any
45 In cases of rape the 'bad' moral character of the woman is used by an accused at the trial stage as
a way to prove the woman consented to have sexual intercourse with him. Moral character of the
woman has also been used at the time of sentencing an accused as a reason for reducing his
sentence. See discussion on sentencing trends.
47
other crime, the complainant’s moral character assumed utmost importance, more so than
the evidence itself, making it the only crime where the victim was equally, if not more,
responsible than the accused.
Judges’ responses to questions about sexual violence showed uncritical acceptance of
rape complainants as inherently suspect and capable of making false allegations against
men. Sexual violence was amongst the list of crimes against women in which 64% of
judges felt women should share the blame. Our courtroom watches46 revealed how this
response put women victims on trial in a courtroom environment, which is largely
unsympathetic and insensitive to their needs. This appeared in part due to most judges
knowing little if anything about the nature of rape, including it’s long term impact on a
victim, the prevalence of such crimes and the relevance of relationships with the
perpetrator. In the absence of such awareness, judges felt the moral character of a woman
complainant in a rape case is relevant either at the time of trial or at the time of sentencing
an accused. Unfortunately the statute also made her "generally immoral character"
relevant in judging the likelihood of her consent (sec. 155(4) The Evidence Act).
The existence of this section has a two-fold effect. First, it allows for examination of the
victim’s credibility in those instances where the court has reason to doubt or suspect her
i.e. where the assailant was known to her. The law’s bias is made obvious by the
contrasting rule that applies to an accused. By sections 53 and 54 of the Evidence Act, the
fact that the accused person is of bad character is irrelevant unless evidence has been
given first as to his good character. That brand of discrimination makes it obvious that the
victim is to be the focus of the trial. It is her sexual history, not his act, which becomes
relevant. And when an accused is acquitted, it not only means the prosecution failed to
prove its case beyond a reasonable doubt; more significantly it points out that the
prosecution failed to prove she was sexually violated. It also suggests that even if she
was, it was of her own making, 'bearing in mind her sexual past’. The justification for this
kind of questioning of the victim's sexual history is supposedly to test her credibility and
46 Discussed in Part E of this report.
48
protect the accused against a possible false allegation (a concern peculiar only to rape). It
is also consistent with the belief of 34% of judges interviewed who felt women should
share some of the blame in cases of violence inflicted on them. In the case of sexual
violence this blame was defined in terms of “her dress and behaviour”, “her failure to take
precautions” and “her provocative nature” to name a few. Yet no logic can justify the
inference that just because a victim says "yes" on some other occasion, it is less likely that
she will say "no" this time. The true inference is that "if she wasn't a virgin, no harm was
done."
Against this background, the Delhi team conducted an overview of reported judgements
on rape from 1979 to 1996 to examine the extent to which judicial decision-making in
rape cases is influenced by such ‘views’.47
From 1980 to 1994, there were 1,28,881 reported judgements of rape all over India. As of
1994, 43,252 cases of rape were pending trial.48 Of these we were able to trace
approximately 94 cases of rape (from 1979-1996) in law reports, judgements which are
largely the outcome of appeals to the High Court.49
In approximately 80 of the 94 reported cases surveyed, the trial court convicted the
accused. Acquittals were awarded in five cases. On appeal however, the High Court
acquitted in 41% cases, reduced sentences in 53% and increased sentences in 6% of the
cases that came before it in appeal. The following myths/prejudices influenced the
outcome of these cases either in terms of acquittals or reduction of sentence: 50
47
Our survey was confined to judgments on rape u/s 375/376 IRC.
48 National Crime Records Bureau, 1994. There are no statistics to our knowledge available to
indicate the outcome of the balance reported cases. It should be kept in mind that statistics on
rape are seriously flawed given the vast amount of under-reporting that exists.
Reported judgments do not indicate the magnitude of rape in India but are a reference point for
analyzing judicial perceptions of rape victims.
50 In June 1995, Sakshi was granted an opportunity by the Hon’ble Chief Justice of India to
examine sexual assault cases pending before the Supreme Court of India at that time. The
opportunity itself was an innovative attempt to isolate myths and prejudices which are prevalent in
49
The victim (irrespective of age) is “habitual of sexual intercourse”51 or is of “easy
virtue”52
the accused is “young and misguided”53
the victim (a minor) sought to “satisfy her lust”54
the victim did not cry for help53
||
“the prosecutrix is not only prone to make improvements and exaggerations but is
also a liar disclosing a new story altogether to serve her interest.”56
“the victim would have agreed to the sexual intercourse even in absence of the
promise of marriage because she was in love with the accused”57
The victim was a major and thus a consenting party. She was also married to one of
the accused58
The absence of external injuries on the victim,implied that she consented to sexual
intercourse59
It is improbable that someone would choose mid-afternoon to rape a woman in a
place like the cattle shed60
The child (a minor) “had ceased to be a virgin long ago and was used to sexual
intercourse’’61
“-that neither blushing nor swaggering, she [the victim] calmly went to the police
station 5 km away”62
rape decisions and to create the possibility of interventin by the apex court at some time. To avoid
repetition, our findings have been broadly reproduced at Appendix "I" of this report.
51 Lawrence Kannandas V. St. of Maharashtra 1983 Cri LJ 1819 (also see Chidda Ram v St 1992
Cri LJ 4073; Bharat v. St. of MP. 1992 Cri LJ 3218)
“Balvinder Singh v. St. of MP 1992 Cri LJ 715; Mohammed Saleem v. St. 1992 Cri LJ 1959; State of
Punjab v. Gurmit Singh (1996) 2 SCC 384 in which Supreme Court refers to trial court reference to
the "loose moral character of the victim"
“Vinod kr v. St. of MP 1987 CriLJ1541
“Satish Kumar v.State 1988 Cri LJ 565 (also see Balasahib V. st. of Maharashtra 1994 Cri LJ 3044)
“State of Maharashtra v. Vasant Madhav Deva 1989 Cri LJ 2004
“St. of Maharashtra v.Chandrapra-kash Keval Chand Jain 1990 (1) SCC 550
57Hari Majhi v.St. 1990 CriLJ 650
“Mahindra Singh VSt. of Rajasthan 1992 cri LJ 1401
Biram Soren V.St of W.Bengal 1992 Cri LJ 1666; Dhuli Chand V.St. of Rajasthan 1992 Cri LJ 3397
Kohli Jaga Rana V.St. of Gujarat 1992 Cri LJ 2080
“St. of Rajasthan V.Srinarayan AIR 1992 Sc 2004
61 Omi Alias Om Prakash V.St. of UP 1994 Cri LJ135
50
“Considering the very young age of the accused persons and considering that
both of them had suffered disrepute and mental agony, the ends of justice would
be met if both accused are awarded a lesser sentence"’63
The appellant (accused) was an eligible bachelor and “obviously an attractive
catch for girls”.64
Only women who are “virgins” prior to a rape can anticipate some possible redress. ’Virginity’
repeats itself not only in the cases surveyed but in the majority view ofjudges who viewed
it as a necessary precondition for marriage; a perception which has influenced corroborative
evidence in sexual crimes. Upholding the conviction of the District Court in a case of rape,
the High Court of Rajasthan focused on the fact that “the girl was a virgin up to the time of
rape. It is difficult to imagine that an unmarried girl would willingly surrender her virtue.
Virginity is the most precious possession of an Indian girl and she would never part with
this proud andprecious possession.9965 In this case, the Court upheld the rape as a “deathless
shame,” reaffirming the view that loss of her virginity in such circumstances is the worst
thing that could happen to the victim in this case. ‘Virtue’ determined the view of 64% of
judges who were more likely to believe a married woman than a prostitute who complains
of rape. Even so called “progressive” decisions which tend to favour women allow a woman's
virginity, rather than her human rights, to determine the outcome. In 1983.66 the Supreme
Court for the first time, recognised that the rule requiring corroboration of a rape victim's
testimony added insult to injury. “Why should the evidence of the woman who complains of
rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with
doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male
dominated society.” The judgement, viewed as a landmark in the law of rape, suffers in its
reasoning. According to the court, false allegations of rape is a western phenomena where
women are moved by economic greed, “psychological neurosis”, “publicity”, “jealousy”
62 Balia V.St. of Orissa 1994 Cri LJ 1907
63 Krishna v. State of Karnataka & Raju v.State of Karnataka '1994 (1) SCO 453
64Jagannivasan v.State of Kerala 1995 Supp 3 SCO 204
65 Babu v.State of Rajasthan
51
U - IO X)
08298
Is'
«
*■ ’'x;
or the like. In contrast, false complaints in a "tradition-bound, non-permissive" society
like India, are rarely conceivable. The judgement proceeds on a dangerous assumption
that in India, chastity is the rule and a woman's 'honour' her virtue and she will do
anything to defend both. The exception, according to the judgement, is “when a woman
having attained majority is found in a compromising position and there is a likelihood of
her having levelled such an accusation on account of the instinct of self-preservation." In
other words, only virgins, decidedly replete in India, are above the law's suspicion when it
comes to rape. Those who are no longer 'chaste' have nothing left to loose and so are
more apt to lie, for the sake of 'self preservation'? The law clearly places a moral value in
favour of single, chaste women which judges seem to indulge. On the rest, it casts a
doubtful eye. It shifts the onus of proof onto her and assumes that if she wasn't a virgin
then somehow she was to blame; she 'asked for it'. That suspicion characterised a
Supreme Court finding in 1983 that "in the case of a married woman it is always safe to
insist on corroboration from either direct evidence or circumstantial evidence." In an
extreme case, the High Court of Bihar in 1989 acquitted eight policemen and six
chowkidars accused of mass rape in the village of Pararia. The judgement exemplifies
how moral assessments of rape cast doubt on the women’s' character in the following
terms: “it cannot be ruled out that these ladies might speak falsehood to get a sum of
Rs. 1,000/- which is a huge sum for them." The judge went on to challenge details of the
sexual positions in which one of the victims was raped:
"Radhia Devi has stated in her deposition that she was thrown on the
ground on her back. Two chowkidars had caught her legs and hands and
three policemen committed rape with her. It was argued by the learned
defence counsel, Shri B.N. Choudhary, that such a posture at the time of
rape was inconceivable
I also find much weight in the argument."
The accused were awarded punishment of one year wrongful confinement, using force,
causing hurt and trespassing. Equally disturbing is the finding of the Supreme Court in
66
Bhardwada Bhoginbai Hirijbhai v. State of Gujarat (1983) 3 SCC
52
the first test case of police rape under the 1983 law.67 The victim, a young village girl, had
been coerced to run off to Jammu with her nineteen year old boyfriend. Eventually they
were accosted by two police constables and taken into custody. They were locked in separate
rooms. The girl was then raped by both policemen. The trial court and High Court convicted
both policemen of custodial rape since one of the policemen present that night testified
against his colleagues Both courts invoked the mandatory minimum sentence of 10 years
prescribed by law. Nearly four and a half years later, the Supreme Court, on an appeal by the
policemen, upheld the convictions but reduced the prison term by five years. The grounds?
The victim was a girl of “easy virtue”, “used to sexual intercourse” and of “questionable
character”. By that brand of logic, she “asked for it”.68
Ironically a majority ofjudges still said they would resort to legal action if their daughter or
female relative was sexually assaulted while the minority opted to keep quiet and avoid
social stigma. The latter would advise their daughter as follows :
Forget about it and “be more careful in the future.”
Analyse her own act/omission which may have contributed to the situation
and “avoid any future incident”.
Take action depending on whether the person is known to her or not. If
known to her, then she is better off keeping quiet.
If both are unmarried then get them married.
Do not tell others about it and handle the perpetrator personally.
If it is an assault by another member of the family, it is better if it is not
brought into the open.
67Prem Chand v.St. of Haryana Air 1989 SC 937
review petition was filed against the Court's finding and arose for consideratin before the same
bench. In it's judgement the Court upheld it's decision stating that by "conduct" they referred to the
"lexographical meaning" of the word i.e. the girl's ten day delay in reporting the offense: State of
Haryana V.Prem Chand & Ors. (1990) 1 SCC 249.
53
If the act is sporadic on account of provocation or a sudden emotional
outburst, it is better not to publicise it.
While these comments reflect a minority view, they still indicate that where some judges
have to balance social stigma against criminal human rights violation, which is largely sex
specific, former clearly prevails. At the same time, 97% ofjudges were clearly aware that
women fear reporting a case ofsexual assault. Social stigma and public exposure through
the court process were identified as reasons for such fear, while delay was also seen as
affecting rape cases adversely.
In terms of punishment judges favoured the existing law, which imposes a mandatory seven
year punishment in cases of ‘ordinary’ rape and ten years in cases of custodial rape. A
minority favoured public hanging. While two judges suggested castration, two others felt
the existing punishment should be reduced to five years (from seven or ten years).
As difficult as it is to bring a case of sexual assault before the existing legal system, the
worst outrage for a woman occurs when the case, having been proved beyond a reasonable
doubt, invites less than the statutory minimum sentence imposed by law. 1 Subsequent to
the 1983 legal amendments, a mandatory minimum sentence of seven or ten years respectively
was introduced depending on the nature of the rape. Such sentences were imposed in only
27 of the 94 cases reviewed by Sakshi (i.e. 27% of the total) at the lower court stage.
Four to six years was the average sentence imposed in the balance cases, well
below the minimum mandated by law. Even in those 27 cases in which a
mandatory minimum was imposed, reductions in sentence occurred in 25 of these
cases on appeal to the High Court. In at least 7 of these cases the lower court had imposed a
69ln 1983 the Criminal Law (Amendment) Act inserted section 376, 376A-376D into the Indian Penal
Code to deal with specific kinds of rape perceived as especially harsh. These included rape by a
police officer, public servant, jail staff, hospital staff, rape on a pregnant woman, on a female under
twelve years of age and gang rape. In such cases, the punishment imposed by the section was fixed
at a mandatory minimum of ten years while all other forms of rape were made punishable with a
mandatory sentence of seven years. In either case, judges were given a discretion to reduce the
mandatory minimum provided "adequate and special reasons” were given.
54
sentence of life imprisonment on the accused (all in cases involving minors, the youngest
of who was four months old at the time of the rape or in cases of rape and murder). These
sentences were also reduced substantially by the High Court on appeal in all but two
cases. Worse still such reductions were granted on the slightest pretext. This despite that
the law calls for “adequate and special reasons” for reducing the mandatory minimum
sentence in a case of rape. In a number of cases judges refer to the age of the accused,
his marital and social status, his youth, financial dependence of his family on him, etc.
to reduce the sentence, all factors which would have been apparent to a rapist at the
time of committing a rape. Yet these same factors are never referred to when looking to
the victim’s plight and the impact of rape on her life and future. In the case of rape of a
minor for example, the High Court on appeal acquitted the accused on grounds that the
victim’s evidence was “intrinsically incredible” and ’’inconceivable.” She was “habitual
to sexual intercourse”, was “responding to the irresistible urge”, was “having an
attachment to the accused” and ’’whatever she was doing-she was doing willingly,
voluntarily and enjoying the same.”70 All assumptions made in the case of a victim who
was a minor!
Irrespective of age, the courts only appear to extend themselves to redress sexual crimes
where such crimes adhere to stereotyped beliefs about sex. In a case involving the brutal
rape and murder of an eleven year old child the High Court upholding the sentence of life
imprisonment for the offence of rape, modified the death penalty for murder to life
imprisonment and held, “it is not a case calling for extreme penalty of death. The
appellant who was aged about 22 years appears to have taken the victim not to
commit murder, but rather to satisfy his lust”. The case is illustrative of a pattern that
reduces rape to one of sexual appetite rather than a criminal human rights violation of
women. In contrast, where an accused happened to be twelve at the time of committing
rape on a seven year old victim, the former was released on grounds that “when the
offence was committed by the appellant he was not even in his teens. He was aged about
70l_awrence Kannandas v St. of Maharashtra 1983 Cri LJ 1819
I
55
I
12 years when in some weak moment he attempted to commit rape on Nandwati, a girl
aged about seven years.” The fact of the girl's minor age, ‘family honour’, potential
years of personal emotional and psychological trauma and the consequent social stigma
had no bearing on the sentence when weighed against the negative impact on the life of a
convicted accused. This despite that 47% of the cases surveyed involved the rape of a
minor. Of these 60% involved perpetrators who were in a position of trust, moral
ascendancy or authority vis-a-vis the minor. In at least 53% of these cases, sentences were
reduced on appeal to the High Court. Often the court attributed sexual experience or
deviance to the minor victim for what happened, thereby allowing the accused the benefit
of a lessor sentence; the assumption being that women who are sexually aware
(irrespective of age) are liars.
These myths clearly influence the reluctance of women to report sexual crimes and
thereby subject themselves to unequal protection of the law. In addition, stereotyped
assumptions about women and sexual crimes influence why judges are extremely
reluctant to look beyond their technical understanding of the law.
It is in light of such judgements that the Supreme Court’s pronouncement on sexual
violence last year is the first instance in which the judiciary has come closer to
understanding the impact of sexual violence as women experience it.71 In the words of the
court:
“It is rather unfortunate that in recent times, there has been an increase in
violence against women causing serious concern.... Rape is an experience,
which shakes the foundations of the lives of the victims. For many, its
effect is long-term, impairing their capacity for personal relationships,
altering their behaviour and values and generating endless fear. In addition
71 Delhi Domestic Working Women’s Forum v. U.O.I. & Ors. 1995 (1) SCC 14.
56
to the trauma of the rape itself, victims have had to suffer further agony
during legal proceedings...
72
The defect in the present system are:
firstly, complaints are handled
roughly and are not given attention as is warranted. The victims, more than
often, are humiliated by the police. The victims have invariably found rape
trials a traumatic experience....”73
The case is a beginning in acknowledging the formal inequality experienced by women in
rape trials and the need to institute mechanism’s to ensure a supportive environment,
.
.
which takes into account a woman s dignity.
74
72 ibid, at para 13
73 ibid, at para 14
74 The case sets out the following suggestions on changes, which need to be introduced for a
more fair trial process in cases of rape. At the same time, the judgment falls short in terms of
addressing the substantive inequality which women face in terms of sexual offenses as a violation
of their human rights and fundamental freedoms:
“In this background, it is necessary to indicate the broad parameters in assisting the victims of
rape,
1. The complainants of sexual assault cases should be provided with legal representation. It is
important to have someone who is well-acquainted with the criminal justice system. The role
of the victim’s advocate would not only be to explain to the victim the nature of the
proceedings, to prepare her for the case and to assist her in the police station and in court but
to provide her with guidance as to how she might obtain help of a different nature from other
agencies, for example, mind counselling or medical assistance. It is important to secure
continuity of assistance by ensuring that the same person who looked after the complainant’s
interests in the police station represent her till the end of the case.
2.
Legal assistance will have to be provided at the police station since the victim of sexual
assault might very well be in a distressed state upon arrival at the police station, the guidance
and support of a lawyer at this stage and whilst she was being questioned would be of great
assistance to her.
3.
The police should be under a duty to inform the victim of her right to representation before
any questions were asked of her and that the police report should state that the victim was so
informed.
4.
A list of advocates willing to act in these cases should be kept at the police station for victims
who did not have a particular lawyer in mind or whose own lawyer was unavailable.
5.
The advocates shall be appointed by the court, upon application by the police station for
victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
57
On the issue of sexual harassment as a violation of women’s rights, this was a novel
concept for most judges. Definitions of sexual harassment, according to judges, were
varied but included obscene behaviour, molestation, ‘outraging the modesty’ of a woman
and rape. Most judges viewed sexual harassment as a common experience though all but
10% denied that their own daughter or any other female relative had experienced sexual
harassment. Asked on a random basis whether they had ever addressed this question to a
family member, all said they had not.
Sexual Harassment of women has become an issue of growing concern in India especially
with the increasing presence of women in the workplace at the urban and rural levels,
private and public sectors.75 From 1977 to 1989 there was approximately 24% increase in
the number of women working in the rural and urban sectors in India76. The fact that
women still represent relatively new entrants in the workplace means they tend to occupy
predominantly junior and minority positions. That makes women’s position in the
workplace precarious from the start. Sexual harassment therefore serves to further
6.
In all rape trials anonymity of the victim must be maintained as far as necessary.
7.
It is necessary having regard to the Directive Principles contained under Article 38(1) of the
Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently
incur substantial financial loss. Some for example are too traumatised to continue in
employment.
8. Compensation for victims shall be awarded by the court on conviction of the offender and by
the Criminal Injuries Compensation Board whether or not a conviction has taken place. The
Board will take into account pain, suffering and shock as well as loss of earnings due to
pregnancy and the expenses of child birth if this occurred as a result of the rape." (ibid, para
75 Reference is invited to:
“Women Employees and Rural Development: Problems of Employed Women in Rural Areas”,
Anuradha Bhotia, 1987, page 13; United Nations Commission Human Rights Report by Special
Rapporteur on Violence Against Women, 22.11.1994 (pp. 8-17)
76 India Economic Yearbook, 1995 pg. 113
58
discredit women in the workplace “by treating her as a sexual object rather than as a credible
co-worker.”77
Even under the existing provisions of law, however
Has your daughter or wife
limited, between 1983 and 1993, the number of or any other female relative
molestation’s increased from 75 in 1983 to 20,194 ever experienced sexual
■
reported cases in 1990.78 The latter figure comprised
harassment?
50% of the total number of crimes against women
Yes
14%
reported in 1990. In other words, women are exposed
No
85%
Cannot say
1%
to a greater possibility of sexual violence and therefore
e
have a greater need to seek protection and redress
against this crime.
In November 1993, the Government ofIndia acknowledged the existence of sexual harassment
as an existing impediment to women’s equality and opportunity:
“ ... while the existence of this form of discrimination against women has been acknowledged,
there has been little concerted effort to evolve an approach or a policy and a law on the
subject...” 79
Judge’s responses revealed that few know, let alone understand, what women mean when
they complain of sexual harassment. “Outraging the modesty of a woman”80 or “Insulting
77 Theresa Lehman v.Toys 'R' Us; Supreme Court of New Jersey 132 N.J.587, 626 A, 2d 445; 1993
N.J.Lexis 712;63 Fair Empl. Prac.Cas (BNA) 242; 641 Empl. Prac. Dec (CCH) p.43, 016 at pg.12
para 615.
78 Parliamentary Question No. 2844, Lok Sabha, Mr. M.M. Jacob
79 See "Combating Sexual Harassment at work" ILO Seminar Manila Nov. 22-26, 1993 (Country
Paper, India) Rajesh Kishore, Deputy Secretary, Dept, of Women & Child Development, Ministry of
Human Resource Development and Sashi Jain, Joint Secretary, Ministry of Labor at pp. 1
80s.354 Indian Penal Code, 1860
59
the modesty of a woman’81 is the closest we come in law to defining sexual harassment.
Often that has meant nothing short of attempted rape.82
Irrespective of such legislation, existing interpretations fail to recognise the existence of
sexual harassment as a form of gender discrimination against women. At most penal laws
are often applied to cases in which an offence amounts to an allegation of attempted rape
or something akin thereto. The problem with a strictly penal law approach to sexual
harassment is that it seeks to punish an individual wrong rather than alter the
discriminatory conduct which is characteristic of sexual harassment. For this reason,
numerous protective legal provisions available in labour laws are also inadequate to deal
with the elimination of sexual harassment in the workplace.
In this regard, the Government of India has acknowledged the absence of any “specific
law which encompasses the subject of sexual harassment in all its dimensions in the
Indian jurisprudence.”83 Further, that “in the absence of any consensus, the starting point
in any discourse would have to be the internationally commonly acceptable definition of
sexual harassment....” 84
Such a definition appears to have been recognised and accepted by the Indian
Government when it ratified CEDAW in 1993. In its Recommendation on Violence,85
CEDAW presents the possibility of perceiving and understanding violence, including
sexual harassment, as women experience it. In January 1992, the U.N. Committee on the
Elimination of Discrimination Against Women adopted the following recommendation:
“Gender Based Violence is a form of discrimination which seriously inhibits women’s
O1
s. 509 Indian Penal Code, 1860
82 reference is invited to 1984 Cr. L.J. 786; Cr. LJ. 1254; AIR 1992 SC 2043; 1991 CrL J 411
1989 Cr.L.J. 383 H.P.
83 ibid, pp. 2
84 ibid, pp. 3
85
1
General Recommendation No. 19 of the Committee on the Elimination of Discrimination Against
Women, Eleventh session, New York, 20-31 January, 1992. Item 7 of the agenda (CEDAW
document CEDAW/C/1992/L.1 Add. 15, 29.1.92)
60
e
ability to enjoy rights and freedoms on the basis of equality with men.”
Recommendation found “sexual harassment1
86
The
as one such expression of sex
discrimination and goes on to define the same:
“ 22. Equality in employment can be seriously impaired when women are subjected to
gender specific violence, such as sexual harassment in the workplace.
23. Sexual harassment includes such unwelcome sexually determined behaviour as
physical contact and advances, sexually coloured remarks, showing pornography and
sexual demands whether by words or actions. Such conduct can be humiliating and may
constitute a health and safety problem; it is discriminatory when the woman has
reasonable grounds to believe that her objection would disadvantage her in connection
with her employment, including recruiting or promotion, or when it creates a hostile
working environment. Effective complaints procedures and remedies, including
compensation, should be provided.”
87
In 1992 the International Labour Organisation published a special volume on sexual
harassment in its Conditions of Work Digest88 setting out the broad parameters for
defining sexual harassment in the workplace. According to such parameters, the critical
aspect of sexual harassment was described as “conduct which is unwanted by the
recipient;”89 a definition which helps to draw the line between flirtatious, romantic
behaviour and sexual harassment. “Sexual attention becomes sexual harassment when it is
unwelcome.... Within these broad parameters sexual harassment is essentially a subjective
concept: it is for each individual to decide what does and what does not offend them.
Behaviour which therefore seems amusing or harmless to some may be offensive to
others. To many, particularly men, this will appear as yet another unnecessary restraint on
86 Ibid, pg. 1
87 Ibid, pg. 5
88Conditions of Work Digest: Combating Sexual Harassment Vol. II, 1992 (International Labor
Office, Geneva)
89ibid, at page 10
90ibid, at page 10
>
61
behaviour which is otherwise perceived as ‘normal’, a reason why women’s complaints
have often been dismissed as vindictive fantasies or wishful thinking
In many parts of the world however, including the Asian Region (India being one of the
exceptions), sexual harassment has in fact been described in the following terms:
•
A Ration of human rights and an affront to the dignity of the person harassed91
•
A manifestation of violence against women ;92
•
As a form of inequality of women in social and economic spheres;
•
Unaceeptabk conditions of work which have detrimental effects for both employees
and the enterprise.93
Against this canvas therefore, sexual harassment goes far beyond being a simple demand
for penal sanction. We have drawn attention to the definition of sexual harassment as
understood in international law, with a view to extend the understanding of sexual
harassment as a human rights violation that judges can address in terms of sex
discrimination and a women’s right to a dignified life free from discriminatory behaviour.
While the government is presently accountable for injuries in the workplace for which
compensation is payable, the type of injury most working women are likely to experience
i.e. sexual harassment/abuse is not even included in any concept of injury and cannot be
redressed from such a narrow perspective. An issue that becomes all the more
troublesome when the workplace for many women in India extends beyond the four walls
of an institution. What, for instance, is the redress available to women trained to work as
instruments of change in the field of women's rights on behalf of State Governments? Do
women have a right to demand that the government recognise the nature of their work and
the inevitable risk of sexual harassment? And if so, in what way should government
“"Gender-based violence and all forms of sexual harassment and exploitation... are incompatible
with the dignity and worth of the human person...” Vienna Declaration and Program of Action
adopted at the World Conference on Human Rights (Vienna June 1993)
Recommendation No. 19 to CEDAWat paras. 22 and 23, supra.
“Conditions of Work Digest supra
62
account? These are just some of the questions judges need to address if an understanding of
sexual harassment as discriminatory conduct is to be perceived and redressed as women
experience it. At present a narrow understanding of such conduct prevails, which accounts
for hidden biases against women who experience sexual harassment but feel no scope for
redress.
Our survey on sexual violence against women as understood by judges clarified a number of
myths and prejudices inherent in judicial perspectives of women who experience such
violence, but to which judges themselves appear to be oblivious. Unfortunately, the moral,
psychological and social aspects of rape find little, if any, place injudicial pronouncements
which most certainly ignores a vast sea of unreported rape. How many women actually
understand any distinction between rape and sexual intercourse? Does she live under
conditions where she can really question what she wants? Is she not socialised to feel
responsible for a man’s sexual feelings towards her? How often does she understand that
when her husband, boyfriend, lover, relation, forces himself upon her, it may be
psychologically, if not always legally, rape? These questions are troublesome because the
ambiguity about what most men ‘do’ and call sex is how the legal system and judges view
rape and thereby refuse to convict men accused of it.
Gender bias as understood by judges in this area was confined to obvious instances of bias
in absolute terms i.e. men versus women, rather than in terms of the more pervasive subtle
myths and misconceptions which operate to deny women equal rights and opportunities.
Keeping that limited understanding of gender bias in mind, 27% of judges still felt there
were instances of bias in deciding sexual crimes but many justified this on the following
basis:
1.
Women will invite men or give them ‘certain indications’. “In such a situation, a
man cannot resist the possibility of sexual relations”;
ii.
“Women arc women’s enemies which is why there are strong biases in favour of
men”;
.63
111.
Bias only exists where a woman is sexually promiscuous or if she puts herself in
a vulnerable positions;
IV.
Several cases of rape are false “Real rape cases are largely unreported. Others are
brought forth because the girl was ditched or she became pregnant on an assurance
that he would marry her”;
However 36% of judges interviewed still expressed a definite need for gender sensitisation
of the judiciary in this area of law. Specific
Do you think there are aspects of
sexual crimes against women to which
the judiciary needs to be sensitised?
areas in which judges expressed a need for
gender equality training were human
behaviour, psychology, sociology and ethics
Yes
36%
when it comes to dealing with women and
No/Cannot Say
43%
sexual violence. Judges also observed how it
No reply
21%
' might assist them to understand the perspective
of a woman who has been sexually abused and
that, “sexual crimes should be understood in terms of their impact on a victim as well as in
respect to her social context.” Those who rejected the need for such training were content
with the belief that “judges know the law”.
v. Dowry
W n 1991 onedowry death took place every 102 minutes. 94 Eighty-eight percent ofjudges
■ interviewed conceded that dowry related offences are on the increase. A lone judge
-^.dissented arguing that “nowadays several false cases exist... the Dowry Prohibition Act
has been misused.”
In our survey, judges also linked dowry - giving to ‘culture’ making their responses
to this section more ambiguous. Judges were unable to distinguish between dowry giving as
64
Dowry is a practice which
a crime from the sanctity of marriage. While the majority
Still has some cultural value:
felt dowry giving has no cultural relevance today, 34% of
Agree
30%
judges felt that it does. “Cultural value” itself is a term
Disagree
61%
No reply
1%
Depends
8%
loosely used and which, according to judges, includes the
following:
* It has value only to the extent of providing the basic things
for starting a home.
* It is linked to community prestige. (“Making a show of giving wealth has social value.
* It should not be looked down upon “if it is a gift and not extortion.”
Judges attribute the pervasiveness of dowry to a number of reasons such as economics, a
weak husband (i.e. the inability of husbands to prevent dowry demands) the mother-in-law.
and failure of the women’s parents to take her back in situations of dowry harassment.
Unequal inheritance laws also figured as an economic reason for dowry giving and taking.
So we asked judges if they felt their own sons and daughters should inherit equally. While
86% of judges answered positively, 12% still felt they should not:
♦
♦
♦
List in order of priority the cause for
“The amount spent on a daughters’
wedding should be adjusted against
what she inherits”;
dowry offences:
Economic
24%
“Given that the family name and lineal
heritage will be protected through my
Weak Husbands
23%
son, only my son should inherit the
property”;
mother-in-law
22%
Weakness of girls parents
21%
“Traditionally, daughters acquire a
Unequal inheritance laws
10%
separate home when they marry, so
the son should inherit”;
94National Crime Records Bureau, Crimes Against Women, 1991
65
“If a daughter is married into a rich family, why should the son be deprived.”
♦
The majority of respondents who approved of equal inheritance for sons and daughters,
were unable to express equality when it came to addressing dowry-related violence against
their daughter (or other female relative). A lone female judge confided that she would
immediately take her daughter back home if she faced dowry related violence. Most however
looked to legal redress as a last resort. ‘Keeping the marriage together’ once again
characterised most responses. Hence, according to one judge, the best way to solve the
problem “is to win over the husband’s family with love and affection.” Another felt it bestfor
the daughter to “keep away from the house during the day and find some respite in work.”
Similar responses advised that a wife should possess “patience and avoid any incidence of
violence” or “firmly but politely refuse such demands, call a meeting of the elders and offer
Would you like your sons and
her services to augment the economic condition of the
daughters to inherit property on
in-laws.” Most surprising was yet another contradiction
an equal basis?
in responses where many judges felt it was best to
meet demands for dowry if this would ensure their
Yes
86%
No
12%
Depends (If married no
Unmarried-yes)
1%
No reply
1%
daughter’s happiness:
*
“I would send her with more dowry. This may not
solve the problem but it may save the family”.
* “If one has the means, then meet the requirements to
avoid harassment to my daughter. If this is not workable
then bring her back home”.
* “If it is possible to satisfy the demand, I would”.
* “Give money if it would secure her happiness”.
The line between crime (even defined legally as crime in the case of domestic violence)
and compromise continues to be nebulous for most judges. For those who oppose dowry,
66
we asked what they were prepared to do in their own life and circumstance to end this
practice. Judges proposed the following:
1
Ensure that women become economically independent
2.
Educate women
3.
Discourage women from wearing gold ornaments
4.
Say no to dowry (either taking or giving)
5.
“Improve moral values” of the society
6.
Socially boycott the practice of dowry
7.
Make sure girls are in a position to reject a marriage proposal demanding dowry
8.
Refuse to take dowry
leave what one can get”
With the exception of one judge, no one assumedpersonal responsibility as either parents
orjudges to end the practice ofdowry. In their answers the judges laid emphasis on changing
women rather than altering attitudes which affect women adversely. Some judges therefore
affirmed that while they would not demand dowry for their son, they would have to provide
dowry for their daughter. Here lies the real crux of the problem with gender bias. It is
located basically within the relationships with women within our own lives. Are we willing
to take strong stands as husbands, fathers, brothers and sons for protecting the rights,
autonomy and legal identity of women we love as citizens? The unlearning of our own
traditional and learnedperceptions of women in our lives and women as a gender equality
education is about. And yet despite personal ambiguity around the issue, most judges felt
there was no bias against women in the handling dowry offences in comt. In fact those who
did perceive a bias attributed it to everything but judicial handling of such cases including:
=>
Women have no home of their own
=>
Dowry is a status symbol
67
Educated and independent girls never oppose dowry demands and some times
themselves demand dowry
Mothers-in-law play a very important role in dowry harassment.
Surprisingly, while most judges denied that gender inequality exists in handling dowry
harassment cases, 44% still felt the need for gender equality training (while 40% did not).
Some judges urged that training and seminars be
conducted in which judges, women’s organisations,
Do you think there are aspects of
affected parties and law enforcement agencies jointly
dowry offences which should be
participate: “What difficulties exist in dowry-related
specifically addressed in gender
cases should also be included.” Only one judge
equality training for the judiciary
expressed the need for “psychological training so
Yes
44%
No
40%
No Reply
16%
that judges could adjust their own perspective which
may influence their judgement in such cases.”
Preservation of family unity emerged as the causal
concern for such views as well as for why judges
acknowledged a need for training. “After the event, we should look at what is the best way
to heal both the husband and the wife with particular reference to maintaining the family.”
Responses to questions about dowry offences exposed a shared ambiguity amongst judges.
Sixty-one percent felt dowry has no cultural relevance today, while 35% felt it does. With
the exception of one judge, all respondents opted for legal redress as a last resort. Though
judges acknowledge a ‘cultural’ difference in what is expected of Indian women compared
to other cultures, 74% argue that preservation of the family, especially where there are
children, should be at all costs. That contradiction reflects a dilemma which is similar to one
apparent in our discussions around domestic violence: how to balance ‘preservation of the
family’ against women’s human rights, a dilemma which is once again apparent injudicial
pronouncements.
68
The Dowry Prohibition Act, 1961 (amended in 1984 and 1986) proclaimed in title and intent
the need to eradicate the 'giving and taking of dowry'.95 Similarly a 1983 amendment viewed
certain kinds of murder as dowry deaths96 while the introduction of ‘Cruelty by Husband or
Relatives of Husband', acknowledged for the first time all manner of domestic cruelty,
including dowry, as a criminal offence. At the same time, "not every harassment or every
type of cruelty” was declared punishable by law.97 While obvious and gross cases of dowry
deaths contain emphatic judicial denouncement of this 'pernicious' practice,
undisputed
instances of'giving and taking' are not accepted as dowry offences.
Such judgements are the outcome of a literal interpretation, which betrays the 'limitations' of
the written law in adjudication. Both statutory and case law reflect a uniform understanding
of the dowry problem - one which taboos an open display of greed by criminalising extortion
and extortionary tactics (such as cruelty) but which is comfortable with the ubiquitous system
of giving based on expectations and subtle negotiations. Hence, some kinds of 'giving' are
termed as dowry, while others may be described as 'gratuitous' giving. ‘Legalised’ and
‘acceptable’ giving can no longer therefore be termed as 'dowry', a word which has been
tarnished as a criminal offence. Criminal sanctions against dowry have robbed the term of
whatever dignity it derived from ‘culture’ and ‘tradition’. Consequently it was necessary to
define dowry in a way that would criminalise the grossness yet save the traditional system
and status quo beyond the purview of law.
Prior to 1985, the DPA prohibited presents, which were given "as consideration for
marriage".99 In interpreting that provision, the statute singled out only that portion as dowry,
which was given or agreed to be given as consideration for marriage, thereby excluding all
95 Statement of Objects and Reasons, Act no. 28 of 1961
96s.304B IRC, 1860
97Although beating and harassment existed in this case, it was held to not amount to
cruelty as the wife could not establish that “this was with a view to force her to commit
suicide or to fulfill the illegal demands” of the matrimonial family. Para 3 Sarla Prabhakar
Wagmare v. State of Maharashtra & Ors.
98Terms such as ‘pernicious’ practice, social evil, evil practice are liberally used by the
courts while deploring dowry.
"Section 2 of the unammended Act no. 28 of 1961.
69
gifts, cash and expenditure occasioned before, upon and after marriage. Applying this
provision in a case, the Delhi High Court elucidated thus:
"...property that may pass hands subsequent to marriage, even months
or years after it, merely to save the marriage from being broken... or to
save the wife from harassment, humiliation or taunts, on the ground that
she did not bring enough at the time of marriage is not dowry."100
In 1985, the term "as consideration ” was substituted by "in connection with the marriage."101
Later in 1986, presents given "any time after the marriage", were also included within the
definition of dowry.102 Even as the definition was liberalised, the statute retained the
exemption granted to presents given without any demand provided they were of a customary
nature and not excessive in value [with regard to the financial status of the giver].103 By
widening the definition, the amended definition broadened the scope for exercise of judicial
discretion, if so inclined, to declare a larger range of'giving* as dowry.
Despite this, the line drawn in exercising discretion has remained narrow. So much so, that
instances of judicial approval granted to certain kinds of’giving’ even on demand, are not
unknown. A telling example is the case of Shobha Rani104 who sought divorce on grounds
of cruelty caused by incessant dowry demands. Her husband's letter produced on her behalf
read thus:
Now regarding [the issue of] dowry, I still feel that there is nothing wrong
in my parents asking for a few thousand rupees. It is quite a common thing
for which my parents are being blamed of harassment.”
10° Madan Lal & ors v- Amar Nath
Cri. L. J. NOC 118 (Delhi).
See Dowry Prohibition Amendment Act 63 of 1984, which came into effect on 2
October, 1985.
102
43 Dowry Prohibition Amendment Act, 1986.
103Clause(2) of Section 3 of the D. P. Act, 1986
104Shobha Rani v. Madhukar Reddi AIR 1988 SC 121
70
The trial court was inclined to agree with the husband: "Though one would not justify
demands for money, it has to be viewed in this perspective. The respondent is a young
upcoming doctor. There is nothing strange in his asking his wife to give him money when
he is in need of it.” The Andhra High Court agreed that there was "nothing wrong or
unusual" in asking a "rich wife to spare some money". Fortunate for being rich, the wife
was able to access the Supreme Court, which differed from the Courts below and reversed
their finding.
In two separate decisions, the Madhya Pradesh High Court concluded that cash amounts
given allegedly as dowry were not so. In both cases the trial court convicted the accused for
abetting suicide by harassment for dowry. The High court set aside both convictions. In one
case was the bride was harassed due to non-payment of Rs. 10,000/-.105 An earlier demand
for Rs.20,000/- had been fulfilled but the subsequent demand was not met. The Court
dismissed the dowry element on the ground that the earlier payment "was under mutual
arrangement and with free consent of the parties concerned without any element of force or
duress." Harassment for the subsequent demand was thus not "convincingly shown".
In the second case,106 the bride’s father paid Rs.5000/- on one occasion to the groom’s
family. A second demand for the same amount remained unfulfilled leading to cruelty which
caused the woman to commit suicide. In appeal, the High Court was of the view that the first
payment was "gratuitous and not a forced one".
The demand for the second amount
appeared to be "obviously ... concocted" as the groom's family was of sound financial
status.
According to the statute, presents given without demand at the time are not dowry, so long as
they are customary and not excessive in value in relation to the financial capacity of the
giver.107 The critical deciding factor is not so much reverence for the strict letter of law as the
personal perspective of the woman and dowry. Terms like 'no force or duress', 'mutual
105Smt Padmabai v. State of Madhya Pradesh 1987 Criminal L. J. 1573.
0 Harishchandra & Anr. v. State of Madhya Pradesh 1987 Cr. L J 1724.
107 ibid.
71
arrangement', 'free consent', 'gratuitous offer', are used interchangeably to suggest that gifts
made without any demand do not amount to dowry. The thin dividing line between demand
and gratuitous offer in contemporary Indian society remains unexplored and unquestioned
by the judiciary.
1 he play on the word 'demand' is just one way of dissociating legal provisions from the scope
and intent of the statute. In cases where demand is apparent and undisputed, the emphasis
shifts to another aspect for deciding the case to accord with the court's sociological
understanding of both marriage as well as dowry. Even a case of unilateral demand may not
be acknowledged by the court as constituting dowry in the absence of an ‘agreement’ to pay
the same.
In 1983 for instance, the Bombay High Court was faced with a dowry complaint.108 The
bride was not sent to the U.S. to join her husband for a year after marriage. The reason lay in
her father's refusal to pay Rs.50,000/- demanded by the father-in-law. This undisputed
demand, the court held, could not be termed as a dowry demand in the absence of an
agreement to pay.
The Calcutta High Court quashed another complaint of dowry demand109 in a case against
the husband's family for continuous demands of costly electronic goods, cash and gold from
the wife s family. In the court s view, although in "common parlance" dowry demand is used
where property or valuable security is asked of the bride's family, the same may be "given"
or "agreed to be given".
108
In this case the groom’s father had demanded Rs. 50, 000 during marriage negotiations a
demand which the bride’s father rejected even at that time. This led to disruption of marriage,
formalities which were completed on intervention of persons known to the family This sum was
demanded for payment towards air fare of the bride and the father-in-law to join the husband in
the U.S. Since, it was not paid, the bride was not sent to join her husband in the states for a year
after marriage leading to a criminal complaint for dowry demand. The Bombay High Court
quashed this complaint as not constituting dowry demand. In appeal, the Supreme Court set aside
the High Court judgment and instead held that a unilateral demand for dowry did constitute an
offense under section 4 of the Act. [L. V. Jadhav v. Shankararao Abasaheb & Ors 1983(4) SCC
4-0 I J
109 *
Shankar Prasad Shaw v. State & Anr. 1991 Ch. L J 639.
'll
For this reason, the 'customary' giving, culturally approved gender roles and the sanctity of
the institution of marriage have consciously through statute and judicial pronouncements,
been de-linked from criminal law. Pronouncements, which correspond to the view of a
substantial minority (35%) of judges interviewed who continue to acknowledge the cultural
value of dowry as relevant. By circumventing the criminal nature of dowry giving or taking,
judges do not merely acquit the perpetrator of charges of abetment to suicide but in the
process demean and ridicule the woman for her inability to forbear by proclaiming her as
pathologically unfit and psychotic.110
The Madhya Pradesh high court deserves special mention here. Two separate cases Ill of
bride burning decided in 1986 display uncanny similarity and serve to illustrate the above
point. In both cases, the accused were each convicted by the lower courts for abetting the
suicide of the victim woman. The High Court set aside the convictions. In both, undisputed
instance of taking dowry were explained away as voluntary gifts; the subsequent demands
accompanying ill-treatment were dismissed as concocted. The closing paragraphs of both
judgements appear verbatim in their analysis of suicide:
"It could well be that the behaviour of the appellant - accused and her husband
may not have been up to the expectation of the daughter-in-law... now
deceased; and therefore, she might have come to have frustration and
pessimism due to her own extreme sensitiveness and sentimentalism. The
110ln Sharad Burdhichand, ibid, the Supreme Court set aside the husband’s conviction for murder
of his wife. The Court examined the letters of the deceased wife (married for 4 months), to
construe her as a secretive, extremely emotional, sentimental, sensitive, depressive, and
psychotic woman prone to suicide. Similarly, in Jagdish Chander v. State of Haryana 1988 Cri. L
J 1048 the Punjab and Haryana High Court stated: "She was probably a sentimental woman and
did not like the drinking habits of the appellant (husband) who cannot be held responsible for her
suicide”, See also, Public Prosecutor v, Tota Basava Punnaiah & Or$ 1989 Cri. L J 2330 where,
the A.P. High court set aside the suicide theory of the sessions court based on the logic that “ the
deceased might have committed suicide due to strained domestic quarrels in a joint family due to
her own extreme sensitiveness, sentimentalism and none of the accused can be blamed for that".
111See footnote 109 and 110 ibid.
73
appellant accused cannot be blamed for the deceased psychotic and
emotional disorders of a weak mind."ln
Rather than judge the legal implications of a husband’s neglect of his wife, the court
assumed the role of psychiatrist to determine a wife’s motive for suicide.
In our survey, only two situations surfaced which allowed women some relief from the rigid
construct of gender responsibility within marriage - that of motherhood and the urban
educated. Socially, motherhood ascribes women with a greater degree of divinity and is
therefore status enhancing. It assumes a natural ability to undergo any degree of discomfort
in the larger interests of a child. In cases of dowiy death where the victim has a child i.e. is a
mother, this fact has swayed courts to presume murder as opposed to suicide. The logic
being that, even when instigated by cruelty to commit suicide, a mother would rather Bear
pain than abandon her child.113
Victims with higher education have also been treated leniently. Essentially intolerance to
harassment in the matrimonial home seems more justified in the case of those women from
urban middle class backgrounds. Although post-graduate education itself does not preclude
the requirement of 'divinity' in women, it allows them a greater degree of dignity and
respect. This has led courts to express greater outrage and condemnation of'dowry' deaths in
such cases114 - as educated urban woman are perceived more capable of starting life afresh
upon dissolution of marriage rather than opt for suicide.
fjjSaGowar
SXabs:U'4^2o.MP p,ra 2t 1987
L11573 see
”3See
Chand v. S. P. Chingleput Dist. & Ors 1988 Cri. L J 2919; Harbans Lal & Anr V
°fuHaryana 1993 Cn L J 75>' Prabhu Dayal & Ors v. State of Maharashtra AIR 1993 SC
2164. The presence of a child, along with other evidence led the courts in these cases to reject
the possibility of suicide.
14 “Young women of education, intelligence and character do not set fire to themselves to
welcome the embrace of death unless provoked and compelled to that desperate step by the
intolerance of their misery”, Shri. Bhagwant Singh v. Commr. Of Police, Delhi 1983 Cri L J 1081
(Para 18); Also see Subedar Tewari v. State of U.P 1989 Cri. L J 923 (at para 19): “It is extremely
unlikely that an educated woman of this academic distinction who was prepared to face her
problems........... would be inclined to commit suicide
” In this case there was also enough
14
Given that issues of dowry giving and taking will almost always be carried out through
subtle family negotiation, judges fail to grasp that harassing behaviour associated with such
negotiations cannot simply be determined along technical lines or by attributing mental
illness to women. Such views in a system governed by a rule of law which, presumes
innocence until proven guilty will inevitably work against women’s access to gender
equality. Technical tools simply enable a court of law to negate what is perhaps most
relevant to a gender-specific crime without first understanding the perspective of that gender.
Perhaps the clearest expression of a judge’s sociological understanding of dowry abuses was
given by the Courts in 1984:115
It is no doubt true that the girl and her family members contributed
towards her oppression. In the first instance the parents are willing to pay
dowry in order to get their daughters married. Each time the girl returns to
her parents, she is sent back with a hope of reconciliation. The parents and
the girl are reluctant to register cases against the husband and his family
members. Each time there is an attempt to patch up the marriage. The girl
also clings to the marriage at all costs till the end. And in the final analysis,
all this goes against girl and makes conviction difficult in the absence ofany
complaint about harassment. The judges infer that if a woman returned to
her husband or ifthere was no complaint made by her about the harassment
and if there was discrepancy in the dying declaration, then it was not
murder. The Indian woman is brought up and trained in a traditional
atmosphere and told that it is better to die in the husband's home than
return to her parents' home and bring disgrace to them. She finds it very
difficult to violate this cardinal principle andprefers to die at her husband's
place. This is the social reality ofa woman's life. The legal agents in power
need to understand this and be sensitive to it. Hence, simply because no
written evidence to prove that the victim wanted to start life afresh and putting her marriage
behind her.
115 Sharad Birdhichand Sarda v. St. of Maharashtra (AIR 1984 SC 1622)
75
complaint is lodged about harassment for dowry, this should not be a reason to
draw an adverse inference against the victims... especially in a case which involves
the abuse of one gender ”.
The above instances give a glimpse as to how the dowry problem has been conceptualised
and treated by the courts. Similarly, the understanding of dowry that emerges from our
survey is one that is historic and removed from the social environment in which it exists.
Not only does it fail to take into account the inequitable social structure which subordinates
women but also the imperatives of marriage both of which provide a justification for dowry.
When women are devalued and can expect to attain social status only upon marriage any
necessary condition will be fulfilled to attain that status- more so in a context where culture
and tradition are selectively used to sanctify practices like dowry. To view a unilinear flow
of cash and gifts as Tree consent’ - dissociated from expectations which if unfulfilled may
manifest into demands, displays either lack of comprehension of the dowry problem and
women’s context or a disinclination to upset the same.
vi. The Convention on the Elimination ofDiscrimination Against Women (CEPAW)
Since CEDAW is the first international covenant of its kind, which comprehensively
underscores the rights of women (contextually) and the fact that its ratification by India
makes its impact on Indian laws integral, the need for the judges to know this document is
critical.
Have you ever heard of
While 79% of judges had never heard of CEDAW,
CEDAW?
21% judges knew it only by name but were unaware
Yes
21%
No
79%
of its contents. On being informed about CEDAW
judges were remarkably responsive to its contents
and felt it would definitely assist them “to
76
understand crimes against women in a different light and to get rid of customary gender
biases.” No judge had ever heard of Recommendation No. 19 of CEDAW, which
describes violence against women as a human rights violation.
Unlike other International conventions CEDAW is a progressive step for women since it
takes human rights into the area of pervasive and systemic discrimination against women
and identifies the need to confront the social causes of women’s inequality by addressing
“all forms” of discrimination that women suffer. In this way, the Convention is perhaps
the first significant international legal document, which pays specific focus to the nature
of women’s disadvantages. One such disadvantage is the violence that women suffer due
to legal, social and ‘cultural’ traditions. It is therefore critical that judges acquaint
themselves with the perspective and understanding adopted by CEDAW in considering
women’s disadvantages and the consequent inequality they undergo when it comes to the
violence they face.
India ratified the Convention on Discrimination Against Women on 8.8.93. 116 It is
significant in a line of legislation that the country has approved even nationally vis-a-vis
women’s rights. It creates the possibility of evolving new strategies to address women's
rights in India with an international tool for articulation and redefinition of those rights. In
addition, CEDAW can help expand and strengthen national legislation by adding
corridors of language and interpretation on equality and discrimination, which few laws
have previously done for Indian women.
CEDAW is a document with a primary goal of defining what amounts to discrimination
against women and the ways in which States can work towards eliminating
discrimination. It applies to the violation of women's human rights and fundamental
freedoms, which occurs "in the political, economic, social, cultural, civil or any other
1,6 The following discussion is extracted from Sakshi’s report on CEDAW and Violence Against Women.
See “Violence Against Women”, Sakshi: Indian NGO’s Report on The Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW), Co-ordination Unit for Fourth World Conference
on Women- Beijing ’95, December 1995, pp.l 17-135
77
field.’’117
A powerful expression, yet given this focus, the Convention itself does not take
explicit note of prohibiting gender-based violence as a primary expression of
discrimination against women. It is only in 1992 that the UN Committee on CEDAW in
retrospect passed a recommendation
including gender based violence as ”a form of
discrimination, which seriously inhibits women’s ability to enjoy rights and freedoms on a
basis of equality with men.”119 In recognising that the gender based violence is a form of
discrimination against women,
it is the first time an international document has
articulated that, ’’acts which inflict physical, mental or sexual harm or suffering, threats of
such acts, coercion and other deprivations of liberty" constitute a violation of a women’s
fundamental human rights and freedoms.120
More importantly the recommendation covers gender-based violence against women
which occurs in the public as well as the private spheres. It has therefore opened the door
for prevention, investigation, punishment and compensation to women in the area of
domestic violence, rape, sexual harassment, child sexual abuse and other forms of gender
based violence etc., whether this takes place at work or within the family. For the first
time therefore, the law seems to have acknowledged the personal and bodily integrity
and dignity of women-especially in the home.
It is the fact that Recommendation No. 19 brings together the broadest canvas of violence
against women within a single legal document and in terms relevant for women, that
makes CEDAW worth working with especially since the most overwhelming hurdles
placed before women in India have often been legal ones. More than anything, the fact
that CEDAW, read with the Recommendation, acknowledges the existence of violence in
the private sphere is a long overdue recognition of the invisible violence that women face
117Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),
December 1979, article 1. The full text of CEDAW is set out at Appendix “IF to this report.
118 General Recommendation No. 19 (eleventh session) Violence Against Women,
CEDAW/C/1992/1,1/Add. 15, 29.1.1992 (A copy of the recommendation is included in Appendix
“III” to this report).
119ibid. para, 1.
120ibid., para 8
78
in both the home and at work. It makes such critical links as between violence and family
ideology, which have always put a woman's honour in the foreground rather than the
violence she has experienced.121
CEDAW presents a different opportunity and challenge to use the law to women’s
advantage and to broaden the way in which we perceive the law and it's possibilities in
terms of gender violence. Most importantly, Recommendation No. 19 is the broadest
attempt so far at understanding just what VAW is in terms of women's experience. The
importance of this for Indian women is that it helps give recognition to those areas of
abuse and neglect which have never been acknowledged as gender violence such as
displacement, sexual harassment, certain kinds of customary law, violence as a health
issue, family violence and sexual exploitation. It also extends the narrow parameters of
law into other dimensions. For example, unlike traditional domestic laws on VAW which
seek to penalise the offender through systems which lead to protracted humiliation and
suffering to be endured by the women, the recommendation on violence specifically
provides for "support services" and "gender sensitive training of judicial and law
enforcement officers and other public officials", as essential to ensure effective
implementation of CEDAW.
In other words, an important emphasis of this legal document is that it branches into areas
of prevention and awareness-building rather than punishment, skills which have
traditionally been part of the larger women's movement and violence intervention but
which now find voice in an international document for women.
121
ibid., pars.10 and 13, pg. 3; CEDAW articles 2 and 3
79
vii. Women in the Courtroom
"W ’M’ T’hen women complain about violence, they are at some point required to attend
/ the court as witnesses. They normally do so unaware of the atmosphere,
▼
court.
▼
procedure and politics of speaking in
Given
that
most
violence
against
women is within the family the
experience of speaking openly in a public forum is for
Is the Courtroom atmosphere
conducive to women to be able
to speak openly about the
violence
most women complainant’s, at first.
they
have
experienced?
Judges were therefore asked whether they felt the
courtroom atmosphere is conducive to women speaking
Yes
36%
No
62%
No reply
2%
openly about the violence they have faced..Sixty-two
percent of judges felt it is not. In-camera trials alone
were deemed inadequate to solve the problem. As discussed later in this report, women
litigants we spoke to reaffirmed this view. By and large they experienced the following
kinds of inequality in taking their case to court:
Stereotyped expectations about ‘proper’ conduct for women
Female litigants are subject to disrespectful or demeaning forms of address by
opposing parties, lawyers, court personnel as well as judges
Sex-specific comments
Female litigants repeatedly claimed how they lacked credibility in the courtroom,
which was seen to relate to their gender.
While one judge was pessimistic in his view that nothing can be done to improve the situation
for women in court, others made recommendations which they felt might ensure a more
conducive atmosphere in the courtroom. These included:
80
Not only hearing such cases in-camera but also in chambers
Creating separate forums for crimes against women cases (68% expressed this view)
The need forjudges to be much more proactive in intervening during examination
of female witnesses especially where sexist conduct or innuendo arises
Securing the support of more women advocates and women judges
Conducting the trial in such cases on a day-to-day basis
Looking to the attitude of court personnel, 30% of judges claimed that remarks or jokes
demeaning to women are made in courts and in chambers. By and large, these remarks are
passed by advocates, courtroom staff, sometimes in the court premise by the general public
and other persons.
Judges are not unknown for remarks demeaning to women. In a case of father/daughter
child sexual abuse in May 1996 for instance, a judge of the apex court declared in open court
that mother’s who allege such crimes against the father of a child are “mentally sick” and
are “unnecessarily spoiling the child’s future prospects for marriage and a happy life”. In
another case of child sexual abuse, a sessions court judge dismissed the allegation as one of
a “promiscuous imagination”. Nineteen eighty-nine saw the well-publicised case of a woman
whose extra-marital lover murdered her two children born from her marriage. The woman,
tried for conspiracy, attracted more public and judicial censure than the actual murderer
himself. In a rare eight page bail judgement, the Court made an elaborate statement regarding
the woman’s sexual inclinations ending with the view that her bail should be rejected because
she was into “kinky sex. Ask Freud.”
Courtroom interaction per se reflects part of the formal inequalities women face when they
come to court. How women are perceived and treated here reflects larger social and legal
attitudes towards women. The court is where overt forms of gender bias surface. Changing
courtroom practices so that women who approach the system do not feel disadvantaged by
their sex is a challenge that the courts must meet. To do less is to ensure that unfairness and
inequality in the courtroom will continue.
81
vi. Women fs Access to Justice
ifty-two percent of judges interviewed felt women had access to justice less than
40% of the time. In this context, the majority ofjudges agreed that some degree of
gender inequality is evident:
Overall how often do you think
24% felt it exists in certain areas:
women in situations ofviolence have
23% felt it is widespread but subtle:
access to justice?
19% felt gender inequality is readily
apparent;
a) Less than 40% of the time 52%
b) 40%-60% of the time
28%
Only 22% of the respondents felt there is no such
c) 60%-80% of the time
7%
inequality at all.
d) 80%-100% of the time
2%
e) 100% of the time
5%
f) No reply
11%
f) Cannot Answer
5%
Perceptions of women clearly affect the attitudes,
practices and decision-making by judges. Inequality
is apparent in terms of battered women who are
viewed as partly responsible for the violence they
face, victims of sexual violence where the offence
is only ever perceived as truly serious when it happens to a “virgin” but even then not
sufficiently serious to warrant a mandatory minimum punishment; in dowry where the line
between violence and tradition are blurred depending on how much a women is expected to
tolerate. Evidence of gender inequality was clearly apparent from our interviews but the
spirit for change was equally so. Seventy percent ofjudges interviewed showed a willingness
to participate in gender equality programme on violence against women.
82
■
■
£
o
■
m
m
w
■
C WOMENLAWYERS
aw schools in the last two decades have seen an increase of women in the legal
profession. While there are no recent statistics on how many women are entering
this profession, their numbers are still few compared to male lawyers. The legal
profession being predominantly male, we sought to gauge the responses of women
lawyers on what discrimination, if any, they have to face in the profession as well as their
views on the courts and women litigants in situations of violence. To gather this information,
Sakshi teams were asked to follow certain guidelines against which the following findings
are recorded below. The survey was carried out with 80 women lawyers from Guwahati,
Delhi, Jaipur, Bangalore and Madras.
Our Findings:
L In the course ofyour work have you ever feltpatronised, ignored, demeaned, harassed
and/or treated as an outsider?
Sixty-four percent of women lawyers related how they
Patronised
18%
Ignored
13%
Demeaned
7%
Harassed
1%
Treated like an Outsider
8%
All
17%
and less serious than men, - “they are viewed as
No
36%
simply carrying out a past-time ”
often felt patronised, ignored, demeaned, harassed or
treated as outsiders in both subtle and apparent ways in
the course of their professional life. Such experiences
included the following:
Women lawyers are perceived as less intelligent
Woman lawyers feel they have to “work a hundred times harder than men to reach a
particular level in the profession which is more easily attainable for male lawyers”;
“there’s an expectation that we can’t do it so we have to work harder.”
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The obstacles for women lawyers are not necessarily tangible but rather invisible,
“more to do with attitudes towards and about women as a whole and not just as
lawyers”.
Women in the legal profession are constantly up against “a brotherhood”.
“I’ve known of women lawyers, especially at the junior level to be exploited by their
seniors.”
“Discrimination definitely exists between male and female juniors when it comes to
pay benefits and emoluments” or when “women junior advocates are often allocated
less serious cases than their male counterparts”.
“There is a popular notion that criminal law is not meant for women- the one area of
law that seems to impact on women most on women’s lives.”
ii. Have you ever experienced stereotyped expectations because you area woman?
Yes
47%
Forty-seven percent of women interviewed have experienced
stereotyped expectations of their work largely in the form of
No
31%
No response
22%
what their peers traditionally expect of women, irrespective of
their vocation. These expectations were understood to include
the following:
Stereotypes were attached to notions ofthe “decent women” such as quietness, reserve,
conservative dress, and those who “don’t make it a habit to talk to men”. Women
who fall outside of these expectations are commonly referred to as ‘chalu’ (a fast
woman).
Expectations of client’s who are sometimes averse to engaging female criminal
lawyers: “There is an expectation that criminal law is a dirty business and only male
lawyers are ‘capable’ of handling it.”
Stereotypes which are veiled in the logic of ‘tradition’ but are really intended to
degrade women as professionals. Comments such as “don’t work too much or soon
84
you’ll be an old maid with no one to marry” have to do with the kind of threat
women pose as competent professionals.
■
Women cannot be taken seriously as legal professionals. “Women are treated as
these showpieces who spend a little time in court till they get married. For that
reason we are often paid less and involved in less serious matters. That notion is also
based on the assumption that the practice of law depends on long hours which is not
necessarily related to the volume of work but the need to be seen to be present in the
office.”
Hi. As a woman advocate, have you ever experienced physical or verbal sexual
harassment by judges, lawyers, court personnel, others?
Apart from general attitudes expressed above, women lawyers had specific things to say
about more invisible forms of discrimination such as sexual harassment. Our survey indicated
that 54% of female lawyers reported verbal and physical sexual harassment from both judges
and other lawyers. The nature of harassment varied according to the court. In Delhi courts
for example, such harassment is referred to as “white collared” (i.e. subtle) harassment
when it occurs in either the High Court or the Supreme Court. In the lower courts harassing
behaviour manifests itself as offensive remarks or physical contact. Verbal harassment was
far more common than physical harassment and lawyers were more likely to be the source
of the problem than others, Sixty-five percent of women lawyers have reported that they
are sometimes or often subjected to, or have observed verbal or physical sexual harassment
from other lawyers. Approximately 20% ofthose surveyed identifiedjudges as a source of
verbal sexual harassment. Remarks from judges often include observations regarding dress,
referring to female counsel by her first name and allowing sexist remarks to be passed in
court without judges intervening. The nature of verbal sexual harassment experienced by
women from other lawyers included:
Use of stereotyped role characterisation. This included comments such as, “a woman's
place is in her home”; “what do your husband and children think of you going to
work”; “women advocates are here to mark time until they get married”; “the
85
courts are too tough for women” and “if you can’t argue, then you’re better off
cooking”.
Sexual innuendo. This referred to suggestive comments about the ‘nature’ ofa young
woman lawyer’s relationship with her senior. One lawyer disclosed how her “senior
would gloat over my dependence and never deny rumour of having an affair with
me. The personal life of women lawyers is always a part of the discussion”. Several
women lawyers spoke of suggestive remarks regarding their success implying that
“she slept her way up”.
Devaluation of women’s work. Male lawyers repeatedly viewed women lawyers as
second income earners in a marriage. As one lawyer put it- “I’m always asked what
my husband does first- it’s one way to find out if I’m married and otherwise indicates
that my male colleagues don’t take my being a lawyer seriously”- observations which
reaffirmed entrenched notions that the primary role of a woman is that of home
maker and not professional;
Appearances and character. Female advocates are common targets for comments
on dress as well as behaviour. Such comments include: “who is she trying to impress
today”; “its nice to see girls in skirts at court - makes it a better place”; and where
women lawyers get favourable orders the suggestion is that she “ must have managed
it through a connection”.
Obscene and vulgar language as well as offensive humour addressed to women
were also common occurrences.
Experiences of physical harassment occurred mostly in the “lift” and “crowded” court rooms in the narratives related to us. “In a lift, male lawyers take advantage to brush up
against us.” Referring to her black lawyers coat, one female lawyer stated how “this coat
covers a lot. I feel safer when I wear it. Lewd staring, objectionable remarks which have
sexual overtones are the order of the day but we’ve got used to it.” That comment
also reflects a common view amongst women lawyers who have grown complacent to
harassment largely because “you can never prove it”. “Harassment is there but it’s
subtle with the result that women lawyers are often forced to just compromise.” Put more
86
starkly: “Sexual favours are forced uponjunior women lawyers but no one talks about it
We are such a smallgroup, every thing becomes gossip and complaining will only ruin a
girls career99 Not surprisingly, a number of women advocates interviewed admitted to
experiencing some form of sexual harassment “off the record”, a response which reflects
traditional behaviour patterns of women despite being in empowered professions. This
preoccupation with “reputation” is what characterised two well-publicised incidents of
physical assault on a female advocate in a High Court and in the Supreme Court of India
respectively. In the High Court incident, a women advocate was openly punched by a male
colleague on the court premises for refusing to join him for a cup of coffee. When the
advocate attempted to report the incident, a senior member of the bar dissuaded the police
from filing the case on the ground that “it would tarnish the reputation of the bar.”122 In a
related incident, a male lawyer slapped a female lawyer on the Supreme Court premises.
Once again his reason for doing so was that she refused his advances. Not only was there an
insufficient quorum to attend a Supreme Court Bar Association meeting summoned pursuant
to the incident but also the agenda for the meeting simply intended to address “whether or
not action should be taken against the male lawyer. ”Women advocates also complained of
complete indifference by Bar Association to the issue of gender discrimination: “If the matter
is taken to the Bar council, it usually ends in a compromise and no action is taken against an
offender.”
iv. Have you ever been subjected to comments aboutyour physical appearance or dress
(when no such comments are made aboutyour male counterparts) ?
No
44%
The majority of women lawyers admit that they have
been subjected to comments related to their physical
Yes
55%
No response
1%
appearance and dress mostly from male lawyers
who “make fun at our expense.” In South India,
senior women advocates spoke of problems
encountered in the mid-eighties when they began to wear salwar kameez.
122This incident has ben more fuly documented by Asmitha (a Hyderabad based NGO) in 1995.
87
“Male counterparts resorted to sarcasm and jokes in order to demean women lawyers and
their ‘hep’ sense of dress.” In one instance a woman advocate described how a judge on
seeing her in salwar kameez admonished her in open court stating “shame on you and your
senior. You girls should wear sarees!” Questions like “whom do you want to please today or
whom do you want to kill today” are commonly asked of women lawyers in reaction to their
court attire.
v. Have you ever been subjected to remarks orjokes in court, your firm or in chambers,
which were demeaning either to you, or to women in general?
52%
No
Approximately forty-eightpercent ofthe women surveyed
said they either heard or experienced remarks or jokes that
Yes (unspecified)
48%
were demeaning to women. The respondents largely blamed
male lawyers, court personnel and judges respectively. While 52% of advocates responded
in the negative to this question, that view contradicted an earlier finding in which 54% of
women said they had experienced physical/verbal sexual harassment. It appears that
demeaning humour /remarks about women in general are not understood by the majority of
women (or men) as sexual harassment. Offensive humour which sexually degrades women
is socially recognised and accepted behaviour and is not commonly understood as offensive
to women. It is also possible to surmise that women are subjected to more serious forms of
sexual harassment than jokes or remarks. Irrespective, those remarks that were described by
the respondents as demeaning included the following:
A woman’s integrity is often put to question if male colleagues do not find her
sufficiently conservative. Comments on this score have recently been associated with
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Anjali Kapoor ,23- “■it’s easy for a woman to become a significant advocate, look at
Anjali Kapoor”.
♦
References to songs such as “choli ke peeche kya he” (what’s underneath the blouse)
are common refrains in the language of interaction between male and female advocates.
Remarks, which seek to devalue women’s work as a professional: “I think discrimination
in this profession is rampant. I can’t think of a single male lawyer who values the fact
that a number of women who want to be in this profession have to balance that with
domestic work. Instead, they are devalued for having that ability.”
♦
vi. Do youfeeljudges attach more credibility to the arguments ofmale lawyers over female
lawyers?
Yes
48%
No
52%
When looking at whether judges addressed male lawyers
differently to female lawyers, nearly half of the women
professionals expressed a difference. Women lawyers felt judges
could be either paternalistic or patronising when it came to women (particularly juniors)
arguing cases. One reason according to some women is that “judges continue to view women
as the weaker sex is in need of protection rather than as humans whose rights need to be
advanced.” “We are not treated on par with male lawyers” expressed others, attributing this
to a mind set where “judges do not take women lawyers seriously. They generally make us
feel that we are incompetent. Though they talk about encouraging women, this attitude is
largely patronising. Preference is always given to male advocates. Judges think women are
weak in arguing the case as well as less intelligent”.
vii. Is there anything in the language ofthe court or the process oflawyering thatyoufeel
is either offensive or demeaning to women and which ought to be changed?
123 Male members of the bar resorted to strikes and public criticism of Anjali Kapur an advocate for
modeling on the cover of "Fantasy" magazine, which has a largely male readership.
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Yes
43%
No
55%
No response
2%
The type of language used in the courtroom itself in cases
of violence is, according to women advocates,
“demeaning”. In cases of sexual abuse, "personal questions
regarding the sexuality of the victims are constantly asked
with a view to humiliate”. In one instance a victim was asked if she had ever “exhibited her
personal organs/private parts with a view to imply she was of‘loose’ character. “Even if she
was, so what" protested one women lawyer - “the wrong was done to her not by her!”
According to number of women advocates in such cases “it always seems as if the woman is
on trial, a basic reason why most felt, women in situations of violence are deterred from
approaching the legal system. The courtroom was considered by most of the complainants
as extremely unhealthy and insensitive”, when it comes to criminal justice for women and
one which allows women to be freely ridiculed. “ In the case of a woman seeking divorce,
the court staff was overheard to comment “yar jitni jan yaha laga rahi hai pati par lagati to
kabhi na chodta (had she put the same effort into her marriage as she is into the case, her
husband would not have left her). Such comments are deemed to be common in cases of
violence against women with women lawyers taking serious exception to the fact that “judges
never issue any reprimand because it’s considered acceptable to address a woman in such
terms.”
G. viii. Have you ever observed any gender specific bias against women in the court or in
chambers in a case involving violence against a woman?
Yes
38%
No
56%
No response
6%
Approximately 38% of the women advocates spoke of some
form of gender specific bias. While 56% expressed not
observing any gender bias, this appeared to be due to the fact
that not all of the women interviewed have dealt with cases
of violence against women. Those who did observe such discrimination related the following
instances and examples:
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The courtroom atmosphere is “not conducive to women to depose openly in
cases of violence against them.”
The courtroom atmosphere is “unhealthy and insensitive, compounded by a
majority of male advocates and court staff’
“The courtroom is unsympathetic to women and allows for women to be
ridiculed and made the butt ofjokes.”
“Bias definitely affects the outcome in a case of violence against a woman.
For example, whether or not relevant, the past character of a woman invariably
surfaces as a determining factor in a case.”
“Notions of family and the sanctity of marriage are paramount for most judges
and that is characteristic of the kind of bias women face in the court-room. In
one case a judge advised a woman plaintiff “mare ya jo bhi kare sasural hi
tumhara ghar hai”” (where you are beaten or whatever else is done to you,
your husband’s home is your home).
“The bias is so evident in the way judges punish rapists. In a case of gang rape
for example, not only were the accused sentenced to less than the mandatory
minimum, on appeal the judge reduced the sentence on the grounds of both
‘youth’ and that it was their only offence to date.”
While many women did not accuse judges of indulging in such behaviour they were critical
of the fact that “judges fail to put a stop to it.” The majority of women advocates expressed
the view thatjudges rarely ifever intervened to stop gender bias behaviour in the courtroom.
But as one District Court Judge in Guwahati told us: “I may not recognise what is gender-
biased behaviour. Gender sensitisation may increase that awareness.” In other words when
judges fail to correct behaviour it may be because they are unable to characterise
behaviour they observe or engage in as gender biased. Secondly, “judges may not
understand how objectionable certain kinds of behaviour is to women” stated one
advocate. Given the responses to the questionnaire survey forjudges, this statement is an
accurate assessment of how judges rate the extent to which they consider certain kinds of
behaviour towards women as discriminatory. While it is true that 72% of judges did
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advocate scolding in open court where sexist comments or offensive humour demeaning
to women are made, only 8% recorded observing any discriminatory behaviour in the
courtroom. This contrasted the experience of both women advocates and women litigants.
According to advocates, “judges may assess the offensiveness of a remark in light of a
particular situation, if at all, but they never apply a clear standard of offensiveness.” None
of the advocates we interviewed could relate to us an instance of judges intervening when
they themselves were aware of sexist conduct in the courtroom. More often than not,
especially in cases of VAW, advocates observed passive non-intervention. At the same
time, women advocates admitted hesitancy on the part of advocates to point out or object
to gender biased behaviour - “You are caught in a bind. On the one hand is your case and
your client and on the other hand you will probably be laughed at.” In other words
advocates feared refocusing attention of the case to gender issues. And even where they
did, the matter would generally be dealt with in a jocular fashion:
I recall a trial court in Jaipur where the defence counsel was harassing a victim who was
testifying in a rape case. The prosecution raised a meek objection. The judge simply
smiled and waved his hand in a gesture, which indicated that the prosecution restrains
him and not gets so worked up. It was totally patronising.”
In another trial involving child rape, the defence counsels (seven in number) repeatedly
laughed at every opportunity in an attempt to ridicule the very possibility of a father
taping a child and reduce it to “a western phenomenon.” Once again no intervention was
forthcoming from the judge hearing the case.
xix. Do you feel the justice system is gender sensitive or gender biased in cases of
violence against women?
92
Not sensitive
15%
Looking at over-all sensitivity of the legal system to cases
No reply, can’t say
12%
ofviolence against women, 58% ofwomen felt the system
Gender bias
43%
Gender Sensitive
30%
was either gender bias or gender insensitive, while 30%
felt it was gender sensitive. Twelve percent of the
respondents were unable to identify gender bias or gender
insensitivity and so were unable to answer this question. Those women advocates who did
perceive insensitivity and gender bias in the criminal justice system were vehement in their
views:
“The judicial system is so insensitive that women only come seeking justice when
their condition is unendurable. Gradually they are compelled to become immune to
the brutality of the court atmosphere.”
“There is no understanding of what actually happens in a woman’s life. The system
is so far removed from a woman’s reality”.
“There is no sensitivity on part of the judges. Women’s issues are not treated as
human problems”.
“The system is intimidating for women and rather than empower her, it seeks to
break her down.”
“Women seek to avoid unwanted experiences and generally shy away from court.
Most perceive the court as insensitive towards women’s issues”
“Cases of domestic violence are dealt with passively as if it’s no big deal, just an
ordinary crime like any other in the penal code- but these are human beings, women
with rights and feeling.”
“The justice system prefers to treat the violence as an “internal or private matter
rather than a violation of a women’s rights in which the court is expected to intervene
effectively.”
“Deserted or divorced women are not humiliated directly but often it’s stated clearly
that she should have adjusted.”
93
•
“Judges subtly but invariably advise a woman to compromise and settle the matter
whatever the degree of cruelty
“Judges take it for granted that woman have problems and keep crying for each and
every thing. So they take it as a routine”.
“They (judges) are so willing to give husbands the benefit of the doubt (reasonable
or not) even in cases of dowry death.”
“Even though a judge may be aware of the wrong being done to a woman in her
home, a “chaltha hai” [it happens] attitude prevails.”
x. Do you feel the court in which you function is accessible to women who experience
violence?
Sixty percent of women lawyers felt the courts were not accessible to such women who are
in situations of violence for the following reasons:
Not only is the courtroom atmosphere “not conducive to women speaking”, it is
often both ‘callous’ and indifferent.
Accessible
34%
Court staff will harass women who
Inaccessible
60%
No response
5%
Depends
1%
come to court. - “How do you think such
a woman feels when she comes to court
having already had to face ‘social’ and
family pressure and in most cases being unaware of her actual rights”;
“There is a tendency to hush up matters related to sexual violence. Delay in dispensing
justice also costs a female complainant more dearly. Not only is she in an
economically weaker position in the society but a traditional value system, the cultural
ethos, lack of self confidence and fear of social ostracism simply get re-affirmed
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•
“Judges look down at women especially in cases of rape, prostitution and obscenity.
The whole system is male dominated. That message tells women who come to court
I
not to speak openly about the violence they have faced.”
•
“In cases of sexual abuse male advocates will resort to intimate and demeaning
questions to embarrass a victim and prevent her from pursuing her case fearlessly.”
• “Acquittals/reduction of sentence in cases of violence against women are made on
flimsy grounds. What kind of justice are women having to access in a system that
views violence as an acceptable life condition for women?”124
The harshest criticism related by women advocates was directed at family courts, which
were condemned by the majority as “highly insensitive”.125 Instances cited included the
124 Situations described by lawyers themselves regarding grounds for acquittal included the
following:
I was able to get an acquittal for an accused in a rape case on grounds that the victims
could have run away while he removed her “tight” trousers.
In another case of dowry burning the husband threatened the wife that he will kill the child
if she speaks the truth, so she attributed her bums to an explosion of the kitchen stove. The
explanation was never verified and he was acquitted. She died three weeks after the incident.
* Even at the level of the Supreme Court, a recent appeal on the part of an accused was
admitted for the rape of a seven and a half month old on the ground that, the judge was not
prepared to believe that it is possible to commit rape on a child of that age.
125
Comments on family courts by lawyers included the following:
•
“Speaking of the family courts, even I as a lawyer am nervous about going there. Something
about the atmosphere and look of the place that makes me feel uncomfortable as a woman. I
wonder how women litigants must feel”;
•
"The reliance, evidence and procedure is burdensome especially for women; it is very difficult
to get proof of income or income certificates, especially if the husband is an independent,
professional. Secondly, women become the subject of a host of allegations intended to
blame her for marital problems such as she is insane or mentally unsound. Judges can be
sympathetic but they have fixed views about women and marriage and expect exceptional
tolerance from women who face problems including violence in the marriage.”
*
“I recall a divorce case, where a male advocate appearing for the defense began making fun
of the wife who alleged adultery. In his words “ the allegation is clearly the result of the wife’s
insecurity. After all, there is no witness to the fact that the my client actually engaged in
sexual intercourse with another woman." As a woman I would have been humiliated in such a
situation."
95
case of domestic violence where the judge ‘consoled’ the victim by saying it shouldn t
really matter to her too much- “After all it is your husband who is beating you”. Women
advocates related numerous instances in which women victims had suffered appalling levels
of physical violence yet family courts tended to adopt an aggressive tone or pose intimidating
questions to victims, only to compound that insecurity. “In the matrimonial courts, women
are treated in a callous and abusive manner, almost as if they are being blamed for bringing
their marriage to court.” Some judges were criticised as being “wholly unsuited to deal with
such matters. Women arrive before these judges already in a state of nervousness only to be
met with offensive language and disrespect - the objective being to intimidate her into some
kind of settlement ” Responses to this question were consistent with judicial belief that
most women in situations of violence have access to justice less than forty percent of the
time.
xi Does the fact that you are a woman advocate influence women clients who come to
you from situations of violence?
Yes
48%
No
47%
A majority of women lawyers felt their gender is important when
it comes to women clients who approach them is situations of
violence. Women lawyers perceive themselves as being “better
No Response
5%
equipped”, “more sensitive” and “more understanding”
especially in cases of “sexual violence and matrimonial issues.”
A contrary view advanced by some women lawyers is that in cases of very serious forms of
violence, “there is some tendency to prefer male lawyers. .. which is consistent with the
belief that criminal law is a ‘dirty game’ and requires aggressive, often ‘crude’ handling. ..
women lawyers are not encouraged in criminal law nor is there an atmosphere conducive to
women practising in this area”.
xii. Is there a need forgender equality education oflawyers on issues ofviolence against
women?
96
Sixty-four percent of women advocates we spoke with
Yes
64%
No
27%
No Response
9%
felt there is a need for gender equality education for all
advocates (both men and women). At the same time a
number of women advocates expressed hesitancy about
such education because they were concerned that the reaction of their male colleagues maybe
very defensive.126 Towards the end our survey, Sakshi decided to look broadly at the
perspective with which women lawyers often view violence against women. We discovered
that women lawyers also held internalised biases. In most cases this due was in part to a
literal understanding of the meaning and scope of gender discrimination rather than a
substantive one.
To corroborate this, the Delhi team conducted a random survey of an additional forty seven
women lawyers at the Tis Hazari District Courts and the High Court of Delhi. A similar
survey was carried out with women lawyers in the Madras District Court as well as
women lawyers of the Bangalore High Court. Women advocates were asked to respond to
myths on sexuality behaviour that constitutes cruelty and the conduct of women
126 A note from the teams;
Teams who actually conducted nterviews with women lawyers provided some feedback on regional
differences amongst women lawyers that we feel is useful to share here. Despite that our survey
showed ample proof of gender bias in all centers, women advocates at centers such as Jaipur
and Guwahati were much less forthcoming vide the implications of such bias., According to the
survey teams, this was in part due to women advocates being less willing to participate in
discussions on discrimnation. This was attributed to an overwhelming sense of professinal selfpreservation; "If you push women lawyers into talking about discriminatin, there is a fear that
somehow they are projecting themselves as vulnerable." Team members were often met with
arguments from individual advocates that "I succeeded in this profession so clearly there is no
discrimination". This formal notion of discriminatin is based on a traditional view that "women are
looking for equality with men" rather than equality per se. In other words some women advocates
were unwilling to address the issue of gender in terms of the differences between men and
women but preferred instead to look at them in terms of similarities. Assamese women lawyers
exhibited the most resistance in terms of articulating sex discrimination to the extent that most
97
victims. Our findings disclosed attitudes and concepts, which were largely conservative in
situations of violence. The views of women lawyers were similar to the judges
interviewed when it came to family unity, sexual autonomy and cruelty but to a lesser
degree. The majority of women lawyers surveyed found for example that it was not cruel
of a husband to tell jokes at the expense of his wife at a party or to want to have sex with
her when she did not. Most felt that men were justified in divorcing women who could
not bear children given that “such a man needs to remarry so that the family name will
continue.” In terms of family, a number of women were of the view that women should
think about their own behaviour when they experience violence at the hands of a husband.
Despite these views, women lawyers were still clear and progressive on a number of other
unconventional issues including:
>
a single slap by a husband to his wife is cruel
> there is no occasion in which violence against a woman, wife or otherwise is justified
>
the marriage does not need to preserved at all costs, especially where the woman is
facing violence
> there is no difference between violence against a woman in the street and in the home
In terms of gender equality education for lawyers, women lawyers proposed the following
suggestions:
1.
Training in legal counselling techniques especially with regard to violence against
women in terms of sex equality laws.
2.
Building a perspective and understanding of violence against women.
3.
Develop a process of intervention in support of female advocates subjected to
derogatory or gender insensitive conduct in the court.
4.
Ensure gender sensitivity education for male lawyers.
women advocates surveyed placed the onus on “female advocates to avoid any untoward
incidents” since "discrimination largely depends on female advocates themselves.”
98
5.
Evolve a participatory process for both judges and lawyers in such trainings which
allows each to hear what the other actually sees or experiences in a court-room around
gender (in) equality. Joint trainings should also take place with the police and criminal
lawyers to ensure a holistic process in terms of registration of a case and court
proceedings in VAW cases.
6. Dissemination of information on the development of legal concepts around gender
equality in the area of violence against women.
7. The need for Bar Associations to acknowledge the existence of gender inequality faced
by women lawyers and provide an effective response to address the problems raised by
women lawyers in this survey.
Women advocates were also prepared to lobby for a gender sensitive environment for
female professionals in terms of the following:
1. Build up unity amongst women lawyers as a class in terms of their concerns
experienced as women professionals.
2. Agitate Bar Associations to increase the number of women entering the profession.
3. Introducing a feminist perspective in the existing law school syllabus as well as
specific courses on women and law, in law schools.
4. Ensuring legal action be taken against those who behave in a discriminatory manner.
5. Collectively intervening in any sexually offensive incident of a colleague.
The effect of sexist conduct or gender biased attitudes towards women lawyers is to
undermine them as professionals who are equally concerned about client interests as their
male colleagues. It is the reason why most female advocates find themselves in difficult,
demeaning or harassing situations because of the power of the judge. If her response to
such situations is perceived negatively by a judge, the consequences for both her case and
her client could be adverse. While a lawyer as an individual may accept such
consequences, she will be less willing when it places her client’s interests in jeopardy.
The fact is, these women have limited avenues for redress, a statement, which was
99
reaffirmed by the fearfulness with which most women advocates spoke to the teams and
the effect it might have on them professionally.
At the same time, our survey also found the legal profession to be largely hostile and
exclusive. The numerous instances of masculine defined codes of conduct for women in
terms of dress codes and professional conduct forced many women to simply conform to
such code and conduct.
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D. WOMEN LITIGANTS
egal rights have little value if they cannot be enforced in practice. The third portion
of our study therefore looked at female victims of violence who chose to exercise
their right to take an accused to court and the barriers they faced in doing so. Forty-
four women litigants were interviewed on their perceptions and experience of going
to court, being in court, and what they thought in hindsight. The women represented a variety
of backgrounds, rural poor, middle class and upper-middle class as well as a cross-section
of experience with violence i.e. rape, domestic violence and dowry. Our findings in this
section are based on over-all perceptions rather than individual responses gathered from
discussions and workshops held by our teams, a process which was more conducive to
women sharing their experiences openly and honesty.
Our Findings
1. Why did women choose to go to court?
Most women who choose to go to court do so as a last resort despite strong apprehensions,
social implications and family opposition. This is largely because in our sample, the offence
against which they filed a case is often characterised by family or sexual violence. The
option of court was normally the result of having exhausted all other possible options including
tolerance, adjusting, enduring, shame, humiliation and anger:
i.
“I couldn’t bear the thought that my son-in-law having burnt my daughter to death,
could get away with doing it again. Who else was going to stop him.”
ii.
“Yes the option of court is not a pleasant one. But just the mere hope ofjustice and
the fact that you tried motivates you. At least our voice and grievance is heard.”
iii.
‘T got my children back. But only because I could afford to go to the Supreme
Court.”
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iv.
“I went to court to retrieve my self-respect. Even though the court has acquitted
my rapists, I will still appeal”
v.
“Justice is the least of what I expect when I go to court- a little heart and a little
luck- that’s all”
vi.
“I went to court just so my abuser wouldn’t think I’d been a coward. I realise there
is so much prejudice in a system which reaffirms stigma when a girl has been
raped but just filing the FIR meant something to me.”
vii.
“I would never advise my daughters to go to court if they were beaten- instead I’d
say just kill him.”
Women are also inclined to go to court for the process rather than justice itself, implying
somewhere that women approach the court with very little expectation and with the knowledge
that their gender per se will affect the quality of justice the get.
2. Are women victims reluctant to go to court? If so, why?
Consistent with this view is that the majority of women interviewed preferred alternative
methods of redress before approaching the courts such as:
i. the assistance of social organisations,
ii. family mediation with the help of an outside agency; and
iii. the police
“At first I thought that before I approach the court I should
Approximately 64% of the
women we spoke to were
reluctant to file their case up
until the very last moment.
solve the problem otherwise. I tried mediation through
family, friends and organisations. In a final effort I requested
my son-in-law to just send my daughter back home. Instead
he burnt her to death because I could not provide for more
dowry Then, I had to go to court. I couldn’t bear the thought
Fear was identified as the
that my son-in-law could burn my daughter to death and
primary hurdle women faced
then get away with it. At the time I thought, only the court
when going
to
court,
can stop him”
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an emotion rooted as much in social conditioning and low self-esteem as in their expectations
of the criminal justice system. Fear is also why litigation was for most women exercised as
a last resort: “At the outset I was afraid of going to court. The main reasons were fear of
breaking the family, fear of losing my honour, and fear of social stigma” said a litigant from
Bangalore. “I was most afraid of being judged” said another victim of wife-assault from
Delhi. In one instance of domestic violence, the victim avoided going to court for twelve
years to claim maintenance to which she was entitled just because “I was afraid I wouldn’t
be able to understand anything there and be worse off.”
Family is the second worst obstacle that women faces when they opt for court especially
women who experience violence within the family. Not surprisingly, “preservation of the
family at all cost” was a significant social norm for most respondents for which they dared
to abandon to go to court:
“My husband beat me for ten years. My parents paid him to keep me even when I
wanted to leave. For them, being a woman and divorced was a worse crime.”
“When I finally left my marriage, my own parents abused and threatened me and
accused me of ruining the family honour.”
“If it’s a choice between social ostracism and seeking justice, a woman prefers to
maintain silence ”
“Approaching the police or the courts should be avoided because justice is out of the
question there. It is a greater injustice if a woman separates from her family.”
“My parents brought me up to believe that family is what matters most. My worst fear
was that of humiliation for my parents if I failed to uphold that one belief.”
“When my daughter was burnt to death for dowry, I was determined not to spare my
son-in-law for what he did. My family and sons^resisted but I was adamant” says the
mother who eighteen years later lives with regret; “what is justice when it takes eighteen
years to get it. Today I feel those who loose their daughters in such a way should do
nothing. You have lost your daughter, why now destroy your home and your family.”
The woman left her home and family to fight for justice for her
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daughter. “I had to sell everything; I lost my family going to court simply destroyed my life.
And what for; today when I go to court, the man who killed my daughter is married, has
children and simply sits across from me giving dirty glances. It has been a humiliating
experience.”
Other factors that characterised women’s reluctance to go to court were:
• Hope that the situation would improve
• Future of the children and the effect litigation would have on them
• Financial burden
• Embarrassment of the court
• Family honour
• Fear of being stigmatised and of social ostracism
Court is the ultimate recourse when women have staked most of what matters to them such
as family, and when all other options have failed. Unfortunately, as our study revealed that
while women in situations of violence are conscious of their personal, economic and social
cost of coming to court when they finally do, it is with the expectation that the criminal
justice system will respond favourably (though differently), only to find the court reaffirms
all that she has feared in the first place.
3. What was yourfirst impression of the court when you entered?
Having finally entered the court, we asked women to relate their first impression of it.
Not a single female litigant spoke positively of her first impression. In addition to fear,
nervousness, intimidation and oppression, alienation was a feeling shared by all of the
women we interviewed, an experience which was more apparent amongst women
whose cases came before the district courts:
=> “I was amazed by the numbers and most of them men.”
104
“I had never stepped out of my house and here I saw the police, the accused, everyone
was there. I was expected to speak in front of them all. I had never learned the confidence
you need to deal with this.”
“It was disgusting. I felt like I was being measured head to toe everywhere I walked.
How can any woman be expected to go there and not feel totally alone.”
“There was no one to explain, no one to direct and no one to care. I was just one more
case.”
“On my first visit to the court” said one dowry victim, “I was scared. The whole
experience seemed awesome. The magistrate appeared to be the epitome of power and
authority but it was all an eyewash. In the end I felt as if I had committed some kind of
sin. This was not just about property; but about my rights. Yet what seemed to count
most in court was family, how I was destroying it and what a terrible daughter-in-law
I was for doing so.”
Most litigants also felt self-conscious as women in a predominantly male environment when
entering the courts. “Your gender is what alienates you most” was a common feeling. Not
only did women express their discomfort at being constantly stared at but many also faced
sexual comments and innuendo. In terms of hurdles they faced in the actual judicial process,
we were able to identify five recurring themes, which included loss of self-respect.
105
What was your first impression of the
4. Didyou feelyour gender disadvantaged you
court?
in any way in getting access to justice?
Hopefill
9%
Scared/fearful
54%
Unnerved/nervous
20%
Confident/comfortable
7%
Oppressed/intimidated
7%
No response
4%
Others
23%
Judges perception of women and gender roles was
identified as a serious obstacle to women’s access
to justice according to our survey. In fact, 66% of
those interviewed said they continued to feel
disadvantaged as litigants primarily because they
were women.
The fact of being a female litigant was in itself a
negative experience for women because “it meant
Of the 23% women whose responses
I had less money and therefore less access to a
were categorised under others, that better lawyer.” Four wopien litigants from Assam
includes: embarrassment, shock, shame,
spoke about how being a woman meant they were
guilt, sadness and feeling self- less listened to: “We are groomed to speak very
conscious,
additional
stigma,
little anyway, so we tend to talk less in the court.
disillusionment, lack of awareness about If we happen to speak out, we are told that that
the justice system, delay and cost.
this is the reason why our families are breaking
up.” For these women, their socially inferior status
for women was directly reflected in the court process. Further, in the absence of any help
from the women’s organisation, it would have been impossible to go to court.
Perception of judicial attitudes varied according to the experience of women litigants
surveyed. Fifty-five percent of the women interviewed had negative experiences with
judges who heard their case. A judge in one case for instance, informed a female litigant in
open court: “You are a woman, you should live like a woman, do not equate yourself with
men, you should accept your family tradition, money is very important in family matters
and for the development of women”. In rape cases we were repeatedly told of
106
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how indifferent judges appeared to be to offensive questions routinely put forward by the
defence. In one situation, the judge aided the defence by repeatedly asking the female
complainant to be more specific in describing her rape despite that the women was both
in a state of shock as well as embarrassed by the process: “I couldn’t believe the judge
was addressing me in this way. He did nothing to prevent me from being subjected to
humiliating questions despite objections raised by my lawyer. I felt like crying. This was
worse than the rape itself.” Twenty-five percent felt that while judges were polite and
courteous, their sympathy was not due to greater sensitivity towards gender issues, but
because it was civil to be that way. Approximately 10% of the respondents felt gender
made no difference to how they were addressed by judges.
As with lawyers, litigants targeted family courts as the worst when it came to handling
cases of violence affecting women litigants:.
•
“In family court the judge would constantly shut me up. My husband appearing
opposite me was encouraged to say his piece. I felt like a child who is told not to
speak unless spoken to.”
•
“The language used towards women in the family court is insensitive, demeaning and
often offensive. I have known women lawyers to walk out. Judges speak to women
victims as if only they are to blame and that they have no business bringing their
family problems to court.”
•
“You would think that after all the time, courage, money and guilt I had to go
through, the judge would advise me something more than just to go back to a violent
home”.
• Even those women who approached the courts through legal aid and/or
encountered family court counselors spoke of how most counselors and legal aid
persons held similar ideas about women andfamily. i(No one ever reaffirmed either
my belief or that of the law, that what my husband did to me was a crime. Most
made me feel guilty and ashamed for not being able to adjust to this violence.
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Tolerant, self-sacrificing, prepared to give more than you take and adjust were the
values advocated by most Family Court counselors. In two instances from Madras,
women spoke of how court counselors advised them to “adjust” and put up with the
violence at home. In another case the counselor had insinuated that the woman, a
victim of domestic violence, herself was responsible for the breakdown of her
marriage because she “was the one who decided to come to court. ” Another was
raped and needed a medical examination which required a magistrate’s order”.
Reported one rural level worker from Rajasthan who had been gang-raped “The
magistrate refused to grant me an order until the next day since it was after five
o’clock.” The motive behind the refusal was to delay the recovery of medical
evidence, which is otherwise considered so critical in a rape case. It seemed
astonishing that even from a health point of view (irrespective of evidence) a
magistrate was not prepared to accommodate the woman; once again reaffirming
the lack of seriousness with which the judicial system often perceives rape. The
experience of an upper-middle class woman from New Delhi who suffered ten years
of domestic violence revealed a humiliating experience at the lower court: “The judge
never felt or even began to empathize with what a woman has to go through when she
leaves her matrimonial home. Each time the judge's focus was to compromise. I felt
his response was cowardly.” In this case the woman succeeded only because she
could afford to access the Supreme Court.
108
facing
• The most telling remarks are those of a Delhi lawyer who was a
divorce in Rajasthan on
victim of dowry harassment and divorce “I never felt as if the
the grounds of her
judge had any inkling of what my experience was as a woman. I
husband’s cruelty was
don’t think he ever put himself in the position of a woman who is
told by the judge “you
beaten and still continues to stay with her husband for the sake of
are a woman, you
her family or of a woman whose parents will pay her husband
should remain one and
what he demands so they don’t have to take her back or of the
not confront men.”
woman who is raped and is constantly reminded that this is the
A
woman
worst thing that can ever happen in her life.”
An Assamese victim spoke of how a judge referred to her as “being like my daughter”
and said she should be reasonable, think of her future without a husband and return- to
the violent home from where she came.
In a Rajasthan case the support organisation for a rape victim spoke of how complacent
the judge was when sexual innuendo verging on obscene were simply overlooked or
when defence counsel would badger the witness.
It is no wonder that all of the women litigants interviewed felt they would have been unable
to attend the court unaccompanied. Even those women who had been exposed to the system
for many years in a given case felt they had insufficient courage to deal with the court.
Most women also expressed feeling self-conscious as women in a predominantly male premise
when entering the courts. “Your gender is what alienates you most” said one litigant. Not
only did women express their discomfort at being stared at but many faced sexual comments
and innuendo including:
“I felt both embarrassed and humiliated by the number of men who would stare at
me.”
109
•
One female litigant from Bangalore spoke of how overwhelmed she was just on
entering the courts and fainted.
•
“Lawyers are the worst. They stare at you as if you’re something cheap or else
something evil.”
5. As a litigant, did you feel in control ofyour case?
Given the number of hurdles women had to encounter in coming to court it is not surprising
that 64% of the respondents when asked whether they felt in control of their case responded
negatively. While this was in part attributed to a largely impersonal criminal justice system,
other reasons included:
As a litigant did you feel in control of
i. Lack of confidence in dealing with the system
your case?
ii. Embarrassment at “awkward questions'
Yes, felt in control
32%
iii. A predominantly male presence during
No, did not feel in control
64%
evidence
No response
4%
iv. Initial scepticism of the magistrate
v. Delay in procedure
vi. Their own ignorance of the law and legal rights.
vii. A general failure on the part of the court to condemn sexist conduct.
Despite the negative impact on
women going to the court
twenty percent of the women
spoke of positive experiences
in going to court. Some felt
empowered by the knowledge
they acquired while others
“My husband wanted me to be a nautch girl
and continued to beat me into submission yet
the court never makes you feel that what he
did was criminal. I never had control over
how the court saw my case but then neither
did the court.”
were pleased by a positive outcome though these women still spoke of a process
which was hostile to them and difficult to access. Of those women able to voice a
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positive experience, all had the advantage of a support group. In the words of one woman,
“When my marriage was falling apart because of the violence, the only thing that gave me
encouragement throughout my case was the non-judgmental response of a woman’s group
who stayed with me to the end.” A notch
6, What was the worst experience ofgoing to court?
In listing the worst experience of going to court women prioritised the following:
34%
Humiliation, shame, guilt
Social stigma, ostracism, social
pressure
32%
Mental agony, upheaval, trauma
30%
Others
(i.e. Fear of not getting help.
4%
fear of society)
Those experiences are perhaps why 66% (as opposed 30%) of women litigants felt judges
are not sensitive to gender and why 59% felt there was a clear need for gender awareness
training of the judiciary specifically in the area of violence against women.
When women opt to go to court in situations of violence, they do so against a background
of opposition from family, community and the police. Court is the final hope at the
ill
After your experience in court
cost of all else. Women litigants were finally asked
do you feel there is a need for
therefore whether in the same situation today they would
gender sensitisation, training
still take their case to court. Sixty-two percent said they
of judiciary.
would not. While, that the response has to do with the
Yes
59%
individual experience of those who went to court, it also
represents a common feeling that for a woman going to
No
14%
court means “you have to stake your reputation, your
No response
27%
family, your honour and your money that is the cost of
justice for a woman ’. The emotional trauma, expense and
invisibility of a women’s commitments and responsibilities outside of court led women to
feel that the experience just wasn t worth it” even in situations of a favourable outcome:
Yes, I was able to get custody of my kids and for that I am grateful but it was only because
I could afford to go to the Supreme Court of India; at the lower court I couldn’t believe the
insensitivity of the court to my situation. I have often wondered what happens to a woman
who hasn’t the financial resources to access the Supreme Court.... she doesn’t stand a chance.”
In terms ot actual hurdles they faced in the process of attending court, there were five recurring
themes affecting women’s access to justice. These included loss of self-respect; additional
stigma, disillusionment, lack of awareness about the justice system, delay and cost. In addition
women spoke of practical hurdles in which they claimed they were unable to obtain accurate/
adequate legal information, proper representation or that the law itself was ill-fitted to meet
their needs. They felt the process was by and large “indifferent” to their experience and gave
little if any credibility to a complaint associated with family or sexual violence.
From the experiences women encountered as women, significant barriers appear to impede
women s access to law and justice. Women’s spousal dependence ard disempowerment
which inevitably arises as areas of concern, are experienced by many women.
In addition women have little, if any, awareness of the law or their legal rights.
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More disturbing is that even if women have been enabled to access justice free from such
barriers, they repeatedly spoke of gender insensitivity and lack of understanding in the
court-room itself when it came to pursuing a remedy in situations of violence.
f
The apprehension that most women expressed before opting for judicial redress found
little consolation in the court itself. Rather than feel empowered by going to court, in the
end women were left feeling ashamed and would hide the fact that they have sought help
from the court especially in situations of domestic violence or rape. There is no instance
in which the women interviewed felt wholly secure or empowered on going to court. On
the contrary women spoke of enduring fear, loss of self-confidence and humiliation.
The fact that Family Court’s came in for severe criticism from all comers deserves special
mention. In 1975, a committee on the status of women recommended that 'all' matters
concerning the 'family' should be dealt with separately. Hence the family courts were
established to promote conciliation and speedy settlement of disputes unlike the marriage
laws which emphasised reconciliation. Apart from failing to tilt the balance in favour of
women, the Act was committed to preserving the institution of marriage. Worse still,
failure to give Family Courts jurisdiction over family matters which extended to interspousal rape, cruelty against wives, dowry, or violence per se within the family was yet
again a serious drawback given that women in precisely such situations were in need of
the less formal, and more active investigation procedure envisaged by the act.
In the same vein, a woman s survival beyond the family ambit has remained limited in
view of paltry maintenance awards, in particular under the Indian Penal Code.127 This
despite a 1989 Law Commission Report which clearly states that the meagre amounts i.e.
i.e.
a maximum of Rs. 500/- was wholly inadequate in view of the then existing consumer
price index which called for at least Rs.4500/- per month for a single women to sustain
herself. In the absence of the law s recognition of women’s economic security as a need,
127 see section 125, Indian Penal Code 1860
113
which must be perceived hand-in-hand with ensuring her right to be free from violence,
the law has continued to reaffirm notions of family and dependency.
In all of this, the final humiliation is that the law inevitably leads women back to court
where they must suffer the indignity of protracted litigation, cost, and social exposure to
attain those rights which are legitimately theirs. Rights which, they advocate simply in
order to be safe and free from a life of violence. Even then, the violence from which they
seek escape is largely accepted as one which is visible i.e. physical with little empathy for
what women suffer most, that which is invisible.
There is an assumption that when a husband and wife come to court, they do so on an
equal footing with equal bargaining power. That notion is clearly inaccurate given that
women do suffer from lack of personal confidence, financial resources and low self
esteem in a number of cases interviewed. Irrespective of law or law reform, women in
marital relationships proceed on an unequal footing. When it comes to issues of violence, a
woman's vulnerability in marriage is a consequence of the basic structural inequalities that
continue to exist. To be poor, financially dependent on their spouse, and the primary
parent makes up most of women's status as women. Victims of spousal violence are not
oblivious to that status. Which is why when she finally opts for legal recourse, it is as a last
resort and therefore with even greater expectations of the law. Yet often, judicial
interpretations of law transposes the problem into one that is then defined as having a
technical solution. It will either obscure her gender specific reality or while it may protect
her, refuse to change that reality.
In addition, the legal split, such as divorce which is the possible outcome of a violent
marriage, shows up the complete split that exists in the lives that Indian men and women
lead. She emerges from a completely privatised existence where family determines the
nature of her existence, her marriage, her behaviour, her expectations and her limits, all of
which work towards minimum development of her as an individual. In a tradition-bound
society, she will always be faced with justifying her behaviour whether to parents, children,
114
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Iriends, relations, the police or the law. And even when she does approach the law, most
women face an internal conflict between their sense of guilt (about reporting her husband,
exposing her family, exposing herself etc.) and her desire for liberation.
<
On the other hand, a more comforting set of dynamics continues to operate for the abusive
husband. He will continue to enjoy social and economic sanction through the support of
parents and family, work and financial status, and prospects for another marriage.
It is that distinction which has no place in the basic premise which governs judicial attitudes
towards marriage and divorce laws, which appear to project gender neutrality. Which is why
the emphasis of such attitudes is first and foremost to advise reconciliation. In other words
even where a woman files for divorce on the basis of cruelty, irrespective of the damage
done to her, the fact of her abuse would be secondary to preserving the marriage. The Family
Courts Act, rather than challenge such presumptions about marriage, has become a
dangerous tool in the hands of judges and legal practitioners. What might have been a means
of mediation and settlement serving the gender concerns of women in the area of child
custody, property and maintenance, once again compromised woman in favour of
reconciliation. In other words, cruelty or harassment for dowry would be perceived as a
'quarrel’ between two equal partners. At best a woman in such situations is simply told to go
back home!
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E. courtwatch summary
Much of what women litigants had to say about their experience with the judicial system
was repealed by women victims interviewed in the course of this survey which served to
reaffirm that women generally are apprehensive to approach the legal system in situations
of violence. Similar findings were also apparent from the Courtwatch survey of our studv.
In the final part of our survey, teams from different centres undertook court watches with
the following objectives in mind:
1. To observe how the courtroom environment affects women (either positively or
negatively) in cases, which address violence against women?
2. io assess the treatment of the women in the courtroom as clients and/or witnesses.
3. Io assess the conduct of judges, court masters and lawyers including the nature of
their language, appearance and responses to one another as well as to women in cases
addressing violence towards a woman (or women).
A total of eight courtwatches were carried out which addressed cases of cruelty, dowry
murder and gang rape respectively. In each courtwatch the team was directed to record its
observations on various aspects of the conduct of a VAW case in court from a gender
specific point of view. These included the judge, his/her attitude, the court atmosphere,
the court employees, and the lawyers.
Given that the findings corroborated what is already apparent in the rest of this survey, we
have given only a summary of our observations as under to avoid repetition:
116
1. Generally, all courtwatch's recorded a largely male presence in the courtroom even in
the case of in camera rape trials. In a gang rape case for instance, at the time of giving
evidence, the victim (a village woman) was produced in camera before a battery of
seventeen men present as either court personnel, lawyers, others etc. All the women
interviewed strongly protested the absence of women personnel in court.
2. “What has happened has happened*’. This attitude was common to all of the cases
surveyed in Court watch. In a case of down' death, the judge as w’ell as the defence
lawyers focused on the fact that the girl w'as dead, w'hich fact should not now “prejudice
the living”. According to the team, that view' affected a lenient outcome for the accused.
In another case, eight years had passed and the focus had shifted from murder of the
daughter-in-law to the amount of dowry involved. Dowry issues often get translated into
property issues rather than human rights violations of the woman who is harassed or
murdered for such down’.
3. Lawyers were criticised for indifference as prosecutors or aggressiveness as defence
lawyers. In a case of dowry harassment, the lawyer examined the victim witness, then
left the courtroom leaving her to face the defence questioning entirely on her own. In
another case of dowry harassment, the accused lawyer was “determined to brand her (the
victim wife] a women who was adequately dutiful as a wife and on that basis, her claims
of dowry harassment were baseless.” In a more humiliating encounter, a victim of gang
rape in the course of questioning was met with the following by the defence lawyer in the
course of examination without any intervention from either the prosecution or the judge:
“She is a liar; she is amongst the greatest liars in the world’’;
“Should the accused be hanged because of her lying”;
“A case should be brought against her for telling such a lie”;
Why did she never disclose to the police in her FIR more details as to how the rape was
committed; how wet was the lehanga [i.e. how much semen].”
117
4. Though judges were viewed as courteous for the most part, our courtwatches
repeatedly commented on the failure of judges to intervene when biased or discriminatory
behaviour took place. In a dowry death case, the underwear of the accused was openly
displayed before the court, with the prosecutor handling it with an expression of
discomfort; this in front of the family he was representing. In family court, hostility
towards the wife in a case of cruelty was more evident. “As it is women in court, speak
very little, so when a judges shouts at them to keep quiet, she is too scared to speak
thereafter. She comes to court feeling she has disrupted the family and the judge does
little to make her feel otherwise.”
5. Regarding the experience of Mahila Courts, while the presence of more women was no
doubt of benefit to women in cases of violence they have experienced, in the limited
access we had to this court in Delhi, it was observed that the presence of men in the court
still far outnumbered women. In the cases observed, only the prosecution was a woman.
The fact of a woman judge, may affect a women’s comfort level in being able to speak
yet the criticisms observed above were no different in the Mahila court. The case
illustrated problems with the assumption that women are better able to address women s
cases. In fact and as this report is intended to show, gender equality is not about which
sex dispenses justice for women but rather the perspective with which justice is dispensed
and that it takes into account the experiences of women as a gender in contexts which are
starkly different from men’s experience as a gender.
6. Several Courtwatch’s observed a general lack of respect when either judges but mostly
lawyers, addressed women lawyers. In some cases women advocates were addressed less
formally which team members felt demeaned or trivialised the professionalism of a
female advocate.
I
7. There was a general feeling in team observations that gender bias was apparent in
affecting the outcome of a case (i.e. reduction of sentence), stereotyped expectations of
118
women in marriage (in a case of cruelty filed by the wife) and the standard assumption
that women lie about rape.
The Courtroom environment is the most visible aspect of the legal system. The conduct,
practice and decisions that take place within that environment have a profound impact on
the nature of legal redress. In the case of women, language, attitudes and perceptions are
critical in ensuring that women, whether as professionals or as litigants, are not perceived
and/or treated as less credible than men in those same roles. When women’s are
diminished in any one of those roles when functioning within the legal system in any
way, the promise of equality is clearly placed in jeopardy.
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F. CONCLUSION
This report was an attempt to highlight judicial perceptions of women in situations of
violence and how such perceptions impact on gender equality. What we found was a clear
need to redefine how judges understand gender equality in situations of violence and how
much of what influences their personal perceptions of men and women determines the
nature of justice to which women have access.
Issues which, affect women in the
criminal justice system include home, relationships, family, stigma, economics, illiteracy,
ignorance of the law and dependency but are rarely understood as issues of concern when
it comes to defining equality.
In recent years legal redress all over the world has begun to stress the need to recognise
violence against women as a specific human rights violation which denies women
equality in law. At the 1993 World Conference of Human Rights, a draft UN declaration
on the Elimination of Violence Against Women stated:
“Gender -based violence and all forms of sexual harassment and exploitation, including
those resulting from cultural prejudice and international trafficking are incompatible with
the dignity and worth of the human person, and must be eliminated. This can be achieved
by legal measures and through national action and international co-operation in such
fields as economic and social education, safe maternity and health care, and social
support.”128
While this is only a draft declaration, it has the advantage of being universal in terms of
coverage. The adoption of this Declaration by the UN general Assembly placed VAW on
the human rights agenda. The Declaration was also to “strengthen and complement” the
process of effective implementation of CEDA W and recognise VAW as “ a manifestation
128 Vienna Declaration and Program of Action 1993 World Conference on Human Rights Vienna 14-25
June, 1993
120
of historically unequal power relations between men and women, which have led to
domination over and discrimination against women. Recommendation No. 19 of CEDAW
defined gender-based violence as, “a form of discrimination which seriously inhibits
women s ability to enjoy rights and freedoms on a basis of equality with men”129 while
article 1 of CEDAW prohibits all gender-based discrimination that impairs the enjoyment
of fundamental rights and freedoms and finds that gender-based violence (of all forms)
has precisely this effect on the fundamental rights of women, including the right to life,
the prohibition on torture and cruel treatments, equal protection of humanitarian law, the
right to liberty and security of a person, equal protection of law, the right to equality
within the family, the right to physical and mental health and the right to just and
favourable conditions of work.” 130
Although judges are not directly to blame for the lower status of women in the area of
equality, judicial perceptions of women as well as decision-making referred to here
indicate that gender bias is a formidable barrier to women’s equality. When women’s
perspective is not considered in a challenge to rights within the family, property,
mamage, workplace, or with respect to bodily integrity, the impact on women is
disadvantageous and therefore discriminatory. Our report found that distortions in the
way judges view women’s experience, biased the way they treat domestic violence,
dowry, and sexual violence.
Deeply held attitudes and beliefs about women highlighted in this study clearly stresses
the need to challenge and examine the way judges ultimately judge. Myths and biases
inherent injudicial perceptions of women need to be understood in terms of their impact
as well as the fair and equitable administration of justice. To the extent that it exists,
gender bias in the legal system prevents women from enjoying equality before law in
terms of both constitutional rights and benefits. In order to ensure the protection of human
129 Cedaw, Recommendation 19, Note 3
130 Cedaw, ibid, at 2-3
121
rights, without discrimination or bias, education of the judiciary on gender through gender
equality training is essential. This report is a first step towards paving the road to gender
equality for women in there desperate search for freedom, in particular, freedom from
violence.
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G. RECOMMENDATIONS
1. Judges at all levels of the judiciary need to be exposed to gender equality education
which would enlighten the judiciary on existing assumptions, myths and stereotypes
about women and how these can interfere with a fair and equitable administration of
justice. Some aspects of gender equality education which need to be addressed pursuant
to this report are suggested as under:
•
Judges, court personnel and lawyers need to be exposed to the nature of violence
against women, in particular domestic violence, sexual violence (including child
sexual abuse) and dowry offences. Education should also seek to educate on the
dynamics between victims and offenders in the case of violence against women and
on the impact of such violence on women as well as include instruction on how to
recognise as well as respond to gender bias behaviour in the courtrooms and
chambers.
•
The nature of language employed in official court correspondence, decisions, oral
communication when referring to women litigants, witness and lawyers to ensure that
it is not derogatory to women and does not perpetuate traditional myths about women
and their roles.
•
Exposing judges, court personnel and lawyers to the experiences and perceptions of
women victims through interactions at workshops, training etc. with women/human
rights groups, counsellors, social workers and educators.
•
Given that Family Courts came in for severe criticism in our survey, training on the
nature of family violence in the home is essential for police, court officers, lawyers,
members of judiciary and magistrates when dealing with family law and violence
matters.
•
Specific attention needs to be given to sexual violence cases in Gender Equality
education on pervasive gender-based stereotypes employed in trials of criminal sexual
conduct to develop the perspective to distinguish between defences which are
123
routinely used to morally derogate women (she asked for it!) and those which are
tenable as proof. Sentencing criteria needs to be highlighted in such education to
inform judges about gender fairness in sentencing looking at the existing law of
mandatory minimum sentencing of sexual offenders and the exercise of judicial
discretion in this regard.
2. The evolution of gender equality is possible only through a realisation that change has
to come from within. Gender equality education programmes should therefore be based
on personalising aspects of women’s rights so as to assist in unlearning inherent
prejudices and gender stereotypes. Judges must be challenged to participate in and take
responsibility for their own continuing education. For this reason Judges must be tapped
to lead and implement programmes on Gender Equality Education for judges which
would give both primacy as well as legitimacy to such a programme. At the same time,
the skill, expertise and know-how of non-judges i.e. lawyers, legal activists, NGO’s (in
particular the experience of Women’s NGOs’) and other members of the community will
be a necessary part of the process for gathering new facts and information based on skills
and experiences which are outside that ofjudges.
3. Workshops and training sessions must give space to non-judges to participate and
discuss the ground realities of their problems and experiences.
?
4. The establishment of a small but well-informed advisory body/task force consisting of
judges, legal activists and women’s rights/human rights organisations. The task force
could be constituted under the auspices of the National Judicial Academy or other like,
non-govemment body. Among the tasks assigned to this body, the following should be
included:
•
Review older judgements with a view to highlight aspects of gender bias/inequality in
decision-making, which would then serve as an input to gender equality education.
For this purpose, establish a panel of young lawyers under the supervision of a judge
124
to examine all judgements in a given year to review the existence of gender bias in
decisions affecting women and violence and on that basis propose corrective inputs
for the purpose of decision making. Such persons should have undergone gender
equality education before being engaged for this task.
•
Review all court forms, manuals and patterns of courtroom interaction to ensure that
they incorporate a gender sensitive response to women in situations of violence.
•
Initiate studies on family law and procedure on domestic violence to help, develop
legislation as well as court rules and procedures designed to resolve them. For this
purpose the assistance of psychologists, social workers and educators is necessary.
•
Initiate a system for collating cases on violence against women especially from the
trial courts where the data in terms of number of cases, nature and judgements can be
recorded to facilitate documentation and analysis for concerned training institutions.
•
To gather up-to-date information and developments with respect to International law
on VAW and in particular, CEDAW and violence and create a compilation together
with statistical developments on VAW and the development of law
5. Our survey found that women who accessed courts found it a frightening and traumatic
experience. The need therefore to moderate services within the courts is a clear one. It is
therefore recommended that under the initiative of the Supreme Court or other
appropriate body, violence against women units should be specifically earmarked in each
jurisdiction, beginning with the District Courts where a specialised group of prosecutors
and defence lawyers should be suitably trained on cases of violence against women with a
clear perspective of the underlying complexities for the woman victim \ client. Bar
Associations should create incentives for a larger number of professionals to receive this
training.
6. States should assist in making available funding for legal representation of women in
such cases. Whenever possible judges should award temporary advocate’s fees and costs
to the economically dependent women to enable her to pursue her relief
125
7. State Courts must look towards evolving a child sexual abuse support system which,
enables children to depose fearlessly in an environment conducive to them being able to
do so. This may require the development of guidelines which direct the method of trial,
recording of evidence and counselling services necessary in child sexual abuse cases as
well as the role of support organisations. Most importantly the court atmosphere which
includes language and procedure should be suitably modified to allow a child to access
the court without fear or diffidence.
8. In terms of courtroom interaction, a guide needs to be developed forjudges on ensuring
a gender fair atmosphere to provide a uniform method for using procedure and
accessibility to women in a process which is largely peopled by men.
9. The Supreme Court or other appropriate body should issue a general directive on the
use of unbiased language in court documents, brochures and in forms.
10. Consistent with the last recommendation, State courts should issue uniform standing
guidelines regarding the manner in which violence against women cases need to be
handled.
11. Lawyers clearly influence judicial thinking and in turn, the development of law.
However, in the area of gender discrimination and the law, law schools are seriously
lacking. Globally the development of a women sensitive jurisprudence has grown rapidly
yet in India, short of token seminars, little if any attention is given to developing skills
and knowledge on gender. Law schools need to take serious initiatives in incorporating
such jurisprudence. Such education should take time to expose students to ground
realities of women through interactions with the community. Education must begin to
incorporate those areas of law, which impact on the human rights violations specific to
women such as domestic violence, dowry and sexual violence. Violence Against Women
is not typically the subject of legal education either forjudges, lawyers or students of law
nor is it anywhere a general compulsory course such as property law, contract,
126
constitution or administrative law. Not only is there a need to recognise this area of law as
one which is a prominent aspect of women’s human rights but that recognition should
encourage the development of course materials on key thematic areas of violence. While
some attention has been given to rape, little or no attention is given to domestic violence,
child sexual abuse and other more indirect forms of VAW such as sexual harassment,
media representation of women, pornography, and medical abuse to name a few.
12. Bar Associations must establish a grievance procedure for women professionals and
court personnel who experience gender bias behaviour and/or sexual harassment as well
as set up a mechanism for providing in-house redress for women professionals who
encounter such behaviour/attitudes. This would initially entail affirmatively raising the
issue of sexual harassment in Codes of Conduct which affect the day-to-day function of
advocates. Genuine remedies need to be evolved which would meet the needs of the
victims.
13. Gender Equality training programmes and law schools must specifically address
CEDAW.
14. It is recommended that this report might be used to initiate additional and more
detailed surveys in all High Courts and District Courts on the matter of gender inequality
to help initiate both awareness about the issue as well as evolve a participatory process
which enables lawyers as well as judges to input into the nature as well as need for gender
equality education.
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APPENDIX ‘I’
Sakshi Survey of Pending Supreme Court Cases of VAW (Jung. 19S5)
In June 1995, in the course of the gender and judges project, the Hon’ble Chief Justice of
India requested Sakshi to examine sexual assault cases currently pending before the
Hon’ble Supreme Court of India. At the time we were given access to existing appeal
cases based on which we made our findings. Eight appeal cases of rape were pending
before the Hon’ble Supreme Court. Given that the cases may still be subjudice, the
present report refers to the same anonymously and numerically.
Over-all we found the following common features were characteristic of decision-making
in rape cases by the time they reached the apex court:
I. The average time period taken for a case ofrape to find its way from the Sessions Court
to the Supreme Court was between ten to fifteen years. In at least five of these cases, the
victims were minors, a fact that is consistent with the increasing visibility given to child
sexual abuse in recent years.
2. In five of the cases researched, the Sessions Court had awarded a conviction against
the accused. On appeal to the High Court, three convictions were overturned. The reasons
for convictions compared to reasons for acquittal tended to be inconsistent with one
another. One reason for such contradictions was in the undue emphasis placed on the
medical report of a victim. For example:
In Case //I (a case of rape) the lower court in Maharashtra relied on medical evidence
which revealed a tom hymen and body pain by the 13 year old victim. The High Court
131 Between 1992 to '94, newspapers reported at least 48 cases of child sexual abuse involving
children averaging between 8-10 years of age, the youngest of who was 6 months. It should be
kept in mind that such cases cover only a tiny fraction of the actual abuse occurring against
minors. We wish to draw your attention to a booklet published by Sakshi entitled “Child Sexual
Abuse:- Beyond Guilt, Fear and Shame."
128
relied on the fact that no traces of sperm or semen were found. The High Court further
relied on “the absence of injury on the male organ of the accused” which according to the
learned judge “speaks eloquently for their innocence.”
In Case #2, the High Court of Maharashtra overturned a conviction of rape by relying on
a medical examination carried out by a junior doctor (not a gynaecologist) who stated that
the victims’ hymen was intact while ignoring the assessment of the senior gynaecologist
who reported a small tear in the hymen, semen as well as absence of injury to the male
organ.
Apart from the myths and inaccuracies which arise from interpreting medical evidence in
this way, there several prejudices which also work against women as a result of such
evidence:
i. Legally, rape is a crime in which penetration ‘however slight’ is sufficient. While there
is no requirement in law for the hymen of a rape victim to be tom, this criteria finds
constant repetition in the medical-legal understanding of rape as well as in judicial
interpretation of rape. The emphasis placed on a tom hymen, semen or even injury to the
male organ is not only beyond the scope and purview of the existing law, it completely
ignores the larger impact and understanding of rape as women experience it. As a result,
medical reports of a rape victim will commonly state the following: “not a virgin”;
“hymen tom”; “used to sexual intercourse”; “vagina easily admits two fingers.” Such
language and focus clearly places the experience of rape in terms of a women’s
experience of sex, a view which is anachronistic when viewed against the increasing
global perception of rape in terms of how women experience it,132 a perception which has
132... in rape... the intent is not merely to “take”, but to humiliate and degrade ... Sexual Assault in
our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male-onfemale offense. Tradition and biologic opportunity have rendered vaginal rape a particular political
crime with a particular political history, but the invasion may occur through the month or the
rectum as well. And while the penis may remain the rapist’s favorite weapon, his prime instrument
of vengeance... it is not in fact his only tool. Sticks, bottles and even fingers are often substituted
for the “natural” thing, and as men may invade women through other orifices so too, do they
invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal
129
begun to acknowledge other aspects of the crime in terms of the impact on women i.e.
psychological, emotional, social.
2. Medical language gives vent to the presumption that a woman whose medical report
falls outside a traditional perspective of ‘a women’s virtue’ is less likely to be believed.
This is how the medical report was interpreted in each of the three cases referred to.
3. The stress in medical reports on an intact hymen, semen and virginity apart from being
legally incorrect, fails to take into account the reality of rape as women, and especially
children, experience it. In biological terms alone, it is often not possible to penetrate a
child sexually. In any event, sexual abuse takes into account a wide range of abuse, which
is wholly absent from the existing law. This includes:
•
“An adult exposing his/her genitals to a child or persuading the child to do the same.
•
An adult touching the child’s genitals or making the child touch the adult’s genitalia.
•
An adult involving a child in pornography (which includes exposing a child to
pornographic material).
•
An adult having oral, vaginal or anal intercourse with a child.
•
Any verbal or other sexual suggestions made to a child by any adult.
•
An adult persuading children to engage in sexual activity.”
9^133
The problem is that none of these forms of abuse are addressed by the existing
interpretations of law as recent judgements have disclosed. Such interpretations eclipse all
other forms of sexual abuse which do not fit within the narrow requirement of
‘penetration’ by the penis into the vagina.
4. Perhaps the most disturbing observation in the area of sexual abuse of children was in
the case of, Case #3 from Punjab. The case involving the rape of a 9 year old by a 60
penetration is a lesser violation of the personal, private inner space, a lesser injury to mind, spirit
and sense of self.?” (Susan Brownmiller Against Our Will, 1986)
130
year old in 1981 was dismissed at the Sessions Court with the following comment: (<that
children of tender age often mistake forms for reality... repeat glibly as of their own
knowledge what they have heard from others and are greatly influenced by fear of
punishment or hope of reward, is too well known and the same finds support through
common experience as such to ignore these factors would amount to ignoring the reality
of the situation. ”
The case was ultimately dismissed on the grounds that only some indecent act had been
committed upon her. An observation which has nothing to do with the experience of
children who have been sexually abused. The fact is that, children who have been raped
do not understand the sexual element of what they have experienced. They will often
express harm in language which is familiar to them but which has nothing to do with the
law or legality. At the same time, it is common to find judgements in which judges do not
even appreciate the exact definition of rape - the search for semen or a tom hymen
becomes evidentiary proof of rape as opposed to a victims state of mind or what she has
described- placing physical violation above all else.
5. Finally, the ultimate complication in a case of child sexual abuse is when it occurs over
a protracted period of time and is not a single instance of abuse. In the case of the Under
secretary’s daughter, this factor was completely overlooked and several episodes of abuse
were simply understood as one instance. In addition, the under-reporting of child sexual
abuse is partly due to the fact that children often realise the nature of such abuse only
after having become adults- when under the existing law it is too late to seek any kind of
redress.
6. Another problem arising from the existing cases is what judges perceive to be
‘characteristic’ behaviour of a rape victim. Once again, the stereotype of a withdrawn,
weeping women is considered to be consistent with ‘believable’ victims. In case #4 the
victim and her aunt were on route to Chandapur by train on 24.7.79. As they were
133 Child Sexual Abuse, Beyond Fear, Secrecy & Shame (Sakshi, 1994)
131
traveling ticketless, they were asked by the ticket checker to get down at Pulgaon. At the
waiting room in Pulgaon, the seven accused had already been passing obscene comments
and throwing pebbles at the victim. Soon after, the victim and her aunt boarded the train
for Wardha at night. The seven accused also entered the same compartment. After 15
minutes, they switched off the light and threatened aunt at knifepoint while raping the
girl. Near Wardha they pushed the girl out and jumped down to assault her again. The
aunt, on reaching Wardha station immediately reported the case. A search party was sent
and apprehended the accused in the act.
Subsequent medical evidence showed the victim’s hymen was tom and that she showed
symptoms of rape within 5-6 hours before examination. Seminal stains and blood were
also found. While the sessions court convicted the accused and sentenced them to seven
years, the High Court acquitted because of possibility that girl was a consenting party.
According to the High court the fact that the prosecutrix was not hysterical or crying, nor
in a state ofshock went against her: “...the fact remains the immediate conduct ofthe girl
after she was so rescued was not consistent with the conduct ofperson who was recently
dealt with atrociously. The conduct on the other hand appears consistent with the conduct
ofa guilty person... ”
7. The notion of a victim’s conduct is perhaps the most problematic myth of all. In no
other crime does the ‘conduct’ of a victim receive the kind of attention and focus as that
of a rape victim. Which clearly assumes that there are justifications for why women get
raped; a belief which simply casts doubts on a women’s experience of rape. In the present
case, the judges assumptions about the victim implies that she wanted to have ‘sex’ with
seven men on board and then jumped off to have more. In other words what otherwise
might have been considered in the domain of violence was here considered part of the
sexual pleasure.
Unlike India, other countries have begun to acknowledge a woman’s behaviour or
reaction to her rape in support of her case. Thus for example, ‘rape trauma syndrome’ has
132
increased recognition and acknowledgement that there is no immediate reaction to rape
and has also been acknowledged as part of expert testimony in court cases.
8. A final observation arising from the pending cases is the relevance of ‘character’, not
of the accused but rather, of the victim. The only defence to rape is consent. Neither
revenge nor character of the woman has any legal value when it comes to determining the
guilt of the accused. The allegation of bad character is most commonly alleged in all rape
cases, an allegation which continues to perpetuate the myth that women who are raped
are inevitably bad-character. The stress of the law and the legal system is on how to place
the rape or its occurrence on the behaviour, conduct, or character of the victim. And that
means determining the character of a woman on sexual terms. A fact which creates a
hierarchy of victims- those who ‘deserve’ what they get and others, who ‘deserve’
redress. If that is the case, according to the legal trend, allegations of bad character being
so common, it follows that there are few women of sufficient integrity to warrant redress.
Given these myths and moral overtones, it is no surprise that sixty-two percent of judges
felt that the courtroom atmosphere in cases of violence against women is not conducive to
a women speaking openly about her experiences our interviews with litigants revealed
one reason why this is so is because judges tend to remain passive observers rather than
active intervenes in cases of violence against women. This is especially true and the trial
court level.
It is no wonder that many of the victims we spoke to in the course of the Gender and
Judges survey said that they would never report a sexual offence. That fact is clear from
the marginal number of cases which are actually reported, compared to the incidence
which while not tabulated has become increasingly apparent.
If rape which has some understanding in the public mind allows women limited redress,
sexual harassment has even less so. Most judges were unable to provide a known
definition of sexual harassment. No doubt the term is alien in the Indian context and has
received little discussion.
133
The opportunity to take a preliminary look at the few pending rape cases before the
Supreme Court disclosed that the whole issue of sexual abuse, in particular, where it
involves children, is subject to standards of scrutiny by the judiciary which work against
both women and children. A number of these responses are based on myths that continue
to characterise sexual abuse crimes, which prejudice victims.
134
APPENDIX ‘II’
(Text of the Convention on the Elimination of Discrimination Against Women)
Convention on the Elimination of All Forms of Discrimination
Against Women
The States Parties to the present Convention
Noting that the Charter of the United Nations reaffirms faith in fundamental human
rights, in the dignity and worth of the human person and in the equal rights of men and
women.
Noting that the Universal Declaration of Human Rights affirms the principle of the
inadmissibility of discrimination and proclaims that all human beings are bom free and
equal in dignity and rights and that everyone is entitled to all the rights and freedoms set
forth therein, without distinction of any kind, including distinction based on sex,
Noting that the States Parties to the International Covenants on Human Rights have die
obligation to ensure the equal right of men and women to enjoy all economic, social,
cultural, civil and political rights.
Considering the international conventions concluded under the auspices of the United
Nations and the specialised agencies promoting equality of rights of men and women,
Noting also the resolutions, declarations and recommendations adopted by the United
Nations and the specialised agencies promoting equality of rights of men and women,
Concerned, however, that despite these various instruments extensive discrimination
against women continues to exist,
Recalling, that discrimination against women violates the principles of equality of rights
and respect for human dignity, is an obstacle to the participation of women, on equal
terms with men, in the political, social, economic and cultural life of their countries,
hampers the growth of the prosperity of society and the family and makes more difficult
the full development of the potentialities of women in the service of their countries and of
humanity.
Concerned that in situation of poverty, women have least access to food, health,
education, training and opportunities for employment and other needs,
135
Convinced that the establishment of the new international economic order based on equity
and justice will contribute significantly towards the promotion of equality between men
and women,
Emphasising that the eradication of apartheid, of all forms of racism, racial
discrimination, colonialism, neo-colonialism, aggressions, foreign occupation and
domination and interference in the internal affairs of States is essential to the full
enjoyment of the rights of men and women,
Affirming that the strengthening of international peace and security, relaxation of
international tension, mutual co-operation among all States irrespective of their social and
economic systems, general and complete disarmament, and in particular nuclear
disarmament under strict and effective international control, the affirmation of the
principles of justice, equality and mutual benefit in relations among countries and the
realisation of the right of peoples under alien and colonial domination and foreign
occupation to self-determination and independence, as well as respect for national
sovereignty and territorial integrity, will promote social progress and development and as
a consequence will contribute to the attainment of full equality between men and women,
Convinced that the full and complete development of a country, the welfare of the world
and the cause of peace require the maximum participation of women on equal terms with
men in all fields,
Bearing in mind the great contribution of women to the welfare of the family and to the
development of society, so far not fully recognised, the social significance of maternity
and the role of both parents in the family and in the upbringing of children, and aware that
the role of women in procreation should not be a basis for discrimination but that the
upbringing of children requires a sharing of responsibility between men and women and
society as a whole.
Aware that a change in the traditional role of men as well as the role of women in society
and in the family is needed to achieve full equality between men and women,
Determined to implement the principles set forth in the Declaration on the Elimination of
Discrimination against Women and, for that purpose, to adopt the measure required for
the elimination of such discrimination in all its forms and manifestations,
Have agreed on the following:
PART 1
Article 1
For the purposes of the present Convention, the term “discrimination against women”
shall mean any distinction, exclusion or restriction made on the basis of sex which has the
136
effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their martial status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the political, economic, social, cultural, civil
or any other field.
Article 2
States Parties condemn discrimination against women in all its forms, agree to pursue by
all appropriate means and without delay a policy of eliminating discrimination against
women and, to this end, undertake:
(a)
To embody the principle of the equality of men and women in their national
constitutions or other appropriate legislation if not yet incorporated therein and to ensure,
through law and other appropriate means, the practical realisation of this principle;
(b)
To adopt appropriate legislative and other measures, including sanctions where
appropriate, prohibiting all discrimination against women;
(c)
To establish legal protection of the rights of women on an equal basis with men
and to ensure through competent national tribunals and other public institutions the
effective protection of women against any act of discrimination;
(d)
To refrain from engaging in any act or practice of discrimination against women
and to ensure that public authorities and institutions shall act in conformity with this
obligation;
(e)
To take all appropriate measures to eliminate discrimination against women by
any person, organisation or enterprise;
(f)
To take all appropriate measures, including legislation, to modify or abolish
existing laws, regulations, customs and practices which constitute discrimination against
women;
To repeal all national penal provisions which constitute discrimination against
(g)
women.
Article 3
States Parties shall take in all fields, in particular in the political, social, economic and
cultural fields, all appropriate measures, including legislation, to ensure the full
development and advancement of women, for the purpose of guaranteeing them the
exercise and enjoyment of human rights and fundamental freedoms on a basis of equality
with men.
137
Article 4
1.
Adoption by States Parties of temporary special measures aimed at accelerating de
facto equality between men and women shall not be considered discrimination as defined
in the present Convention, but shall in no way entail as a consequence the maintenance of
unequal or separate standards; these measures shall be discontinued when the objectives
of equality of opportunity and treatment have been achieved.
2.
Adoption by States Parties of special measures, including those measures
contained in the present Convention, aimed at protecting maternity shall not be
considered discriminatory.
Article 5
States Parties shall take all appropriate measures:
(a)
To modify the social and cultural patterns of conduct of men and women, with a
view to achieving the elimination of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women;
(b)
To ensure that family education includes a proper understanding of maternity as a
social function and the recognition of the common responsibility of men and women in
the upbringing and development of their children, it being understood that the interest of
the children is the primordial consideration in all cases.
Article 6
State Parties shall take all appropriate measures, including legislation, to suppress all
forms of traffic in women and exploitation of prostitution of women.
PART II
Article 7
State Parties shall take all appropriate measures to eliminate discrimination against
women in the political and public life of the country and, in particular, shall ensure
women on equal terms with men. The rights:
To vote in all elections and public referenda and to be eligible for election to all
(a)
publicly elected bodies.
(b)
To participate in the formulation of government policy and the implementation
thereof and to hold public office and perform all public functions at all levels of
government.
138
(c)
To participate in non-governmental organisations and associations concerned with
the public and political life of the country.
Article 8
States Parties shall take, appropriate measures to ensure women on equal terms with men
and without any discrimination, the opportunity to represent their Governments at the
international level and to participate in the work of international organisations.
Article 9
1.
State Parties shall great women equal rights with men to acquire, change or retain
their nationality. They shall ensure in particular that neither marriage to an alien nor
change of nationality by the husband during marriage shall automatically change the
nationality of the wife, render her stateless or force upon her the nationality of the
husband.
2.
rStates "Parties
• shall grant women equal-rights with men with respect to the
nationality of their children.
PART III
Article 10
States Parties shall take appropriate measures to eliminate discrimination against women
in order to ensure to them equal rights with men in the field of education and in particular
to ensure, on a basis of equality of men and women:
(a)
The same conditions for career and vocational guidance, for access to studies and
for the achievement of diplomas in educational establishments of all categories in rural as
well as in urban areas; this equality shall be ensured in pre-school, general, technical,
professional and higher technical education, as well as in all types of vocational training.
(b)
Access to the same curricula, the same iexaminations teaching staff with
qualifications of the same standard and school premises and equipment of thej same
quality.
(c)
The elimination of any stereotyped concept of the roles of men and women at all
levels and in all forms of education by encouraging coeducation and other types of
education which will help to achieve this aim and, in particular, by the revision of
textbooks and school programmes and the adaptation of teaching methods.
(d)
The same opportunities to benefit from scholarships and other study grants.
139
(e)
The same opportunities for acces to programmes of continuing education,
including adult and functional literacy programmes, particularly those aimed at reducing,
at the earliest possible time, any gap in education existing between men and women.
(0
The reduction of female student drop-out rates and the organisation of programme
for girls and women who have left school prematurely.
(g)
The same opportunities to participate actively in sports and physical education.
(h)
Access to specific educational information to help to ensure the health and well
being of families, including information and advice on family planning.
Article 11
1.
States Parties shall take appropriate measures to eliminate discrimination against
women in the field of employment in order to ensure, on a basis of equality of men and
women, the same rights, in particular:
(a)
The right to work as an inalienable right of all human beings;
The right to the same employment opportunities, including the application of the
(b)
same criteria for selection in matters of employment;
(c)
The right to free choice of profession and employment, the right to promotion, job
security and all benefits and conditions of service and the right to receive vocational
training and retraining, including apprenticeships, advanced vocational training and
recurrent training;
(d)
The right to equal remuneration, including benefits, and to equal treatment in
respect of work of equal value, as well as equality of treatment in the evaluation of the
quality of work;
(e)
The right to social security, particularly in cases of retirement, unemployment,
sickness, invalidity and old age and other incapacity to work, as well as the right to paid
leave;
The right to protection of health and to safety in working conditions, including the
(f)
safeguarding of the function of reproduction.
2.
In order to prevent discrimination against women on the grounds of marriage or
maternity and to ensure their effective right to work. States Parties shall take appropriate
measures:
140
(a)
To prohibit, subject to the imposition of sanctions, dismissal on the grounds of
pregnancy or of maternity leave and discrimination in dismissals on the basis of marital
status.
To introduce maternity leave with pay or with comparable social benefits without
(b)
loss of former employment, seniority or social allowances.
(c)
To encourage the provision of the necessary supporting social services to enable
parents to combine family obligations with work responsibilities and participation in
public life, in particular through promoting the establishment and development of a
network of child-care facilities.
To provide special protection to women during pregnancy in types of work proved
(d)
to be harmful to them.
3.
Protective legislation relating to matters covered in this article shall be reviewed
periodically in the light of scientific and technological knowledge and shall be revised,
repealed or extended as necessary.
Article 12
1.
States Parties shall take appropriate measures to eliminate discrimination against
women in the field of health care in order to ensure, on a basis of equality of men and
women, access to health care services, including those related to family planning.
2.
Notwithstanding the provisions of paragraph 1 of this article, States Parties shall
ensure to women appropriate services in connection with pregnancy, confinement and the
post-natal period, granting free services where necessary, as well as adequate nutrition
during pregnancy and lactation.
Article 13
States Parties shall take appropriate measures to eliminate discrimination against women
in other areas of economic and social life in order to ensure, on a basis of equality of men
and women, the same rights, in particular:
(a)
The right to family benefits.
(b)
The right to bank loans, mortgagees and other forms of financial credit.
(c)
life.
The right to participate in recreational activities, sports and all aspects of cultural
141
Article 14
1.
States Parties shall take into account the particular problems faced by rural women
and the significant roles which rural women play in the economic survival of their
families, including their work in the non-monetised sectors of the economy and shall take
appropriate measures to ensure the application of the provisions of this Convention to
women in rural areas.
2.
States Parties shall take appropriate measures to eliminate discrimination against
women in rural areas in order to ensure, on a basis of equality of men and women, that
they participate in and benefit from rural development and, in particular, shall ensure to
such women the right:
To participate in the elaboration and implementation of development planning at
(a)
all levels;
To have access to adequate health care facilities, including information,
(b)
counselling and services in family planning;
(c)
To benefit directly from social security programmes;
To obtain all types of training and education, formal and non-formal, including
(d)
that relating to functional literacy, as well as, inter-alia, the benefit of all community and
extension services, in order to increase their technical proficiency;
To organise self-help groups and co-operatives in order to obtain equal access to
(e)
economic opportunities through employment or self-employment;
(f)
To participate in all community activities;
To have access to agricultural credit and loans, marketing facilities, appropriate
(g)
technology and equal treatment in land and agrarian reform as well as in land resettlement
schemes;
To enjoy adequate living conditions, particularly in relation to housing, sanitation,
(h)
electricity and water supply, transport and communications.
PART IV
Article 15
1.
State Parties shall accord to women equality with men before the law.
State Parties shall accord to women, in civil matters, a legal capacity identical to
that of men and the same opportunities to exercise that capacity. In particular, they shall
2.
142
give women equal rights to conclude contracts and to administer property and shall treat
them equally in all stages of procedure in courts and tribunals.
3.
States Parties agree that all contracts and all other private instruments of any kind
with a legal effect which is directed at restricting the legal capacity of women shall be
deemed null and void.
4.
State Parties shall accord to men and women the same rights with regard to the
law relating to the movement of persons and the freedom to choose their residence and
domicile.
Article 16
1.
States Parties shall take appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations and in particular shall
ensure, on a basis of equality of men and women:
(a)
The same right to enter into marriage;
(b)
The same right freely to choose a spouse and to enter into marriage only with their
free and full consent;
(c)
The same rights and responsibilities during marriage and at its dissolution;
(d)
The same rights and responsibilities as parents, irrespective of their marital status,
in matters relating to their children; in all cases the interests of the children shall be
paramount;
(e)
The same right to decide freely and responsibly on the number and spacing of
their children and to have access to the information, education and means to enable them
to exercise these rights;
(f)
The same right and responsibilities with regard to guardianship, warship,
trusteeship and adoption of children, or similar institutions where these concepts exist in
national legislation; in all cases the interests of the children shall be paramount;
(g)
The same personal right as husband and wife, including the right to choose a
family name, a profession and an occupation;
(h)
The same rights for both spouses in respect of the ownership, acquisition,
management, administration, enjoyment and disposition of property, whether free of
charge or for a valuable consideration.
143
2.
The betrothal and the marriage of a child shall have no legal effect, and all
necessary action, including legislation, shall be taken to specify a minimum age for
marriage and to make the registration of marriages in an official registry compulsory.
PARTY
Article 17
1.
For the purpose of considering the progress made in the implementation of the
present Convention, there shall be established a Committee on the Elimination of
Discrimination against women (hereinafter referred to as the Committee) consisting at the
time of entry into force of the Convention, of eighteen and, after ratification of or
accession to the Convention by the thirty-fifth State Party, of twenty-three experts of high
moral standing and competence in the field covered by the Convention. The experts shall
be elected by States Parties from among their nationals and shall serve in their personal
capacity, consideration being given to equitable geographical distribution and to the
representation of the different forms of civilisation as well as the principal legal systems.
2.
The members of the Committee shall be elected by secret ballot from a list of
persons nominated by States Parties. Each State Party may nominate one person from
among its own nationals.
3.
The initial election shall be held six months after the date of the entry into force of
the present Convention. At least three months before the date of each election the
secretary-general of the United Nations shall address a letter to the States Parties inviting
them to submit their nominations within two months. The Secretary-General shall prepare
a list in alphabetical order of all person thus nominated, indicating the States Parties
which have nominated them, and shall submit it to the States Parties.
4.
Elections of the members of the Committee shall be held at a meeting of States
Parties convened by the Secretary-General at United Nations Headquarters. At that
meeting, for which two thirds of the States Parties shall constitute a largest number of
votes and an absolute majority of the votes of the representatives of States Parties present
and voting.
5.
The members of the Committee shall be elected for a term of four years. However,
the terms of nine of the members elected at the first election shall expire at the end of two
years, immediately after the first election the names of these nine members shall be
chosen by lot by the Chairman of the Committee.
6.
The election of the five additional members of the Committee shall be held in
accordance with the provisions of paragraphs 2, 3 and 4 of this article, following the
thirty-fifth ratification or accession. The terms of two of the additional members elected
144
on this occasion shall expire at the end of two years, the names of these two members
having been chosen by lot by the Chairman of the Committee.
7.
For the filing of casual vacancies, the State Party whose expert has ceased to
function as a member of the Committee shall appoint another expert from among its
nationals, subject to the approval of the Committee.
The members of the Committee shall, with the approval of the General Assembly,
8.
receive emoluments from United Nationals resources on such terms and conditions as the
Assembly may decide, having regard to the importance of the Committee’s
responsibilities.
9.
The Secretary General of the United Nations shall provide the necessary staff and
facilities for the effective performance of the functions of the Committee under the
present Convention.
Article 18
1.
States Parties undertake to submit to the Secretary General of the United
Nationals, for consideration by the Committee, a report on the legislative, judicial,
administrative or other measures which they have adopted to give effect to the provisions
of the present Convention and on the progress made in this respect:
(a)
Within one year after the entry into force for the State concerned; and
(b)
Thereafter at least four years and further whenever the Committee so requests.
2.
Report may indicate factors and difficulties affecting the degree of fulfilment of
obligations under the present Convention.
Article 19
1.
The Committee shall adopt its own rules of procedure.
2.
The Committee shall elect its officers for a term of two years.
Article 20
1.
The Committee shall normally meet for a period of not more than two weeks
annually in order to consider the reports submitted in accordance with article 18 of the
present convention.
2.
The meeting of the Committee shall normally be held at United Nations
Headquarters or at any other convenient place as determined by the Committee.
145
Article 21
1.
The Committee shall, through the Economic and Social Council, report annually
to the General Assembly of the United Nationals on its activities and may make
suggestions and general recommendations based on the examination of reports and
information received from the States Parties. Such suggestions and general
recommendations shall be included in the report of the Committee together with
comments, if any, from States Parties.
The Secretary General shall transmit the reports of the Committee to the
Commission on the Status of Women for its information.
2.
Article 22
The specialised agencies shall be entitled to be represented at the consideration of the
implementation of such provisions of the present Convention as fall within the scope of
their activities. The Committee may invite the specialised agencies to submit report on the
implementation of the Convention in areas falling within the scope of their activities.
PART VI
Article 23
Nothing in this Convention shall affect any provisions that are more conducive to the
achievement of equality between men and women which may be contained:
(a)
In the legislation of a State Part; or
(b)
In any other international convention, treaty or agreement in force for that State.
Article 24
States Parties undertake to adopt all necessary measures at the national level aimed at
achieving the full realisation of the rights recognised in the present Convention.
Article 25
1.
The present Convention shall be open for signature by all States.
The Secretary General of the United National is designated as the depository of
the present Convention.
2.
The present Convention is subject to ratification. Instruments of ratification shall
3.
be deposited with the Secretary General of the United Nations.
146
4.
The present Convention shall be open to accession by all States. Accession shall
be effected by the deposit of an instrument of accession with the Secretary General of the
United Nations.
Article 26
1.
A request for the revision of the present Convention may be made at any time by
any State Party by means of a notification in writing addressed to the Secretary General
of the United Nations.
2.
The General Assembly of the United Nations shall decide upon the steps, if any,
to be taken in respect of such a request.
Article 27
1.
The present Convention shall enter into force on the thirtieth day after the date of
deposit with the Secretary General of the United National of the twentieth instrument of
ratification or accession
2.
1For each State ratifying the present Convention or acceding to it after the deposit
of the twentieth instrument of ratification or accession, the Convention shall enter into
force on the thirtieth day after the date of the deposit of its own instrument of ratification
or accession.
Article 28
1.
The Secretary General of the United Nations shall receive and circulate to all
States the text of reservations made States at the time of ratification or accession.
2.
A reservation incompatible with the object and purpose of the present Convention
shall not be permitted.
3.
Reservations may be withdrawn at any time by notification to the effect addressed
to the Secretary General of the United Nations, who shall then inform all States thereof.
Such notification shall take effect on the date on which it is received.
Article 29
1
Any dispute between two or more States Parties concerning the interpretation or
application of the present Convention which is not settled by negotiation shall, at the
request of one of them, be submitted to arbitration. If within six months from the date of
the request for arbitration the parties are unable to agree on the organisation of the
147
arbitration, any one of those parties may refer the dispute to the International Court of
Justice by request in conformity with the Statute of the Court.
2.
Each State Party may at the time of signature or ratification of this Convention or
accession thereto declare that it does not consider itself bound by paragraph 1 of this
article. The other States Parties shall not be bound by that paragraph with respect to any
State Party which has made such a reservation.
3.
Any State Party which has made a reservation in accordance with paragraph 2 of
this article may at any time withdraw that reservation by notification to the Secretary
General of the United Nations.
Article 30
The present Convention, the Arabic, Chinese, English, French, Russian and Spanish texts
of which are equally authentic, shall be deposited with the Secretary General of the
United Nations.
IN WITNESS WHEREOF the undersigned, duly authorised, have signed the present
Convention.
148
APPENDIX ‘III’: Recommendation #19 (CEDAW) on Violence Against Women
Convention on the Elimination
of all Forms of Discrimination
Against Women
Distr.
LIMITED
CEDAW/C/1992/L/l/Add. 15
29 January 1992
ORIGINAL: ENGLISH
COMMITTEE ON THE ELIMINATION OF DISCRIMINATION
AGAINST WOMEN
Eleventh Session
New York, 20-31 January 1992
Item 7 of the agenda
ADOPTION OF THE REPORT
1.
MATTERS BROUGHT TO THE ATTENTION OF STATES PARTIES
General recommendations
The Committee on the Elimination of Discrimination against Women brings to the
attention of the States parties to the Convention on the Elimination of All Forms of
Discrimination against Women, the following general recommendations:
General recommendation No. 19 (eleventh session, 1992)
Violence against women
Background:
1.
Gender based violence is a form of discrimination which seriously inhibits women
ability to enjoy rights and freedoms on a basis of equality with men.
At its eighth session 1989, CEDAW recommended that States should include in
their report information about violence and about measures introduced to deal with it
(General recommendation 12, eighth session.)
2.
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3.
At the tenth session in 1991, it was decided to allocate part of the eleventh session
to a discussion and study on article 6 and other articles relating to violence towards
women and the sexual harassment and exploitation of women. This subject was chosen in
anticipation of the 1993 World Conference on Human Rights.
4.
The Committee has concluded that the reports of States parties do not all
adequately reflect the close connection between discrimination against women, gender
based violence, and violations of human rights and fundamental freedoms. The full
implementation of the Convention requires States to take positive measures to eliminate
all forms of violence against women.
I.
VIOLENCE AGAINST WOMEN IS A FORM OF DISCRIMINATION
5.
The Committee recommends
recoi nijil
to States parties that in reviewing their laws and
policies, and in reporting under the Convention, they should have regard to the following
comments of the Committee concerning gender-based violence.
GENERAL COMMENTS
Gender based violence is discrimination
6.
The Convention in article 1 defines discrimination against women as meaning:
“any distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their martial status, on a basis of equality of men and women, of human
rights and fundamental freedoms in the political, economic social, cultural, civil or any
other field”, (article 1)
7.
This definition of discrimination includes gender based violence - that is violence
which is directed against a woman because she is a woman or which affects women
disproportionately. It includes acts, which inflict physical, mental or sexual harm or
suffering, threats of such act, coercion and other deprivations of liberty. Gender based
violence may breach specific provisions of the Convention, regardless of whether those
provisions expressly mention violence.
Gender based violence violates human rights
8.
Gender based violence which impairs or nullifies the enjoyment by women of
human rights and fundamental freedom under gender international law or under specific
150
human rights conventions is discrimination within the meaning of article 1 of the
Convention. These rights and freedoms include, inter alia
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Page 3
the right to life,
the right not to be subject to torture or to cruel, inhuman or degrading
treatment of punishment,
the right to the equal protection of humanitarian norm in time of
international or internal armed conflict,
the right to liberty and security of person.
the right to the equal protection of the law,
the right to equality in the family,
the right to the highest standard attainable of physical and mental
health, and
the right to just and favourable conditions of work.
The Convention covers public and private acts
9.
The Convention applies to violence perpetrated by public authorities. Such acts of
violence may also breach that State’s obligations under general international human rights
law, and under other conventions, in addition to being a breach of this Convention.
10.
It should be emphasised, however, that discrimination under the Convention is not
restricted to actions by or on behalf of Governments (see articles 2.e, 2.f and 5). For
example, under article 2.e the Convention calls on States to take all appropriate measures
to eliminate discrimination against women by any person, organisation or enterprise.
Under general international law and specific human rights convenants, States may also be
responsible for private acts if they fail to act with due diligence to prevent violations of
rights, or to investigates and punish acts of violence, and to provide compensation.
11.
States parties should take all appropriate and effective measures to overcome all
forms of gender based violence, whether by public or private act.
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COMMENTS ON SPECIFIC PROVISIONS OF THE CONVENTION
Article 2 and 3
12.
Under article 2 and 3 States are to take all appropriate measures to overcome
discrimination in all fields. The kind of measures to be taken are not restricted to the
matters covered by specific articles of the Convention. Article 2 and 3 establish a
comprehensive obligation to eliminate discrimination in all its forms in addition to the
specific obligations under articles 5-16.
!
13.
States should ensure that, laws against family violence and abuse, rape, sexual
assault and other gender based violence give adequate protection to all women, respect
their integrity and dignity. Appropriate protective and support services should be
provided for victims. Gender sensitive training of judicial and law enforcement officers
and other public officials is essential for the effective implementation of the Convention.
14.
States should encourage the compilation of statistics and research: out the extent,
causes and effects of violence, and on the effectiveness of measures to prevent and deal
with violence.
Traditional attitudes, customs and practices (Article 2.f 5 and I Ox)
I
15.
Traditional attitudes under which women are regarded as subordinate or as having
stereotyped roles perpetuate widespread practices involving violence or coercion, such as
family violence and abuse, forced marriage, dowry deaths, acid attacks, female
circumcision. Such prejudices and practices may justify gender-based violence as a form
of protection or control of women. The effect of such violence to the physical and mental
integrity of women deprives them of the equal enjoyment, exercise and knowledge of
human rights and fundamental freedoms. While this comment addresses mainly actual or
threatened violence the underlying (structural) consequences of these forms of gender
based violence help to maintain women in subordinate roles, contribute to their low level
of political participation, and to their lower level of education, skills and work
opportunities. The full implementation of the Convention requires that effective measures
be taken to overcome these attitudes and practices. States should introduce education and
public information programmes to help eliminate prejudices which hinder women's
equality (Recommendation No.3,1987)
16.
These attitudes also contribute to the propagation of pornography and the
depiction and other commercial exploitation of women as sexual objects, rather than as
individuals. This in tum contributes to gender based violence. Effective measures should
be taken to ensure that the media respects and promotes respect for women.
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17.
States reports should identify the nature and extent of attitudes, custom and
practices, which perpetuate violence against women, and on the kind of violence which
results. They should report the measures, which have been undertaken to overcome
violence and the effect of these measures.
Exploitation of prostitution and trafficking in women (Article 6)
18.
Article 6 requires States parties to take measures “to suppress all forms of traffic
in women and exploitation of prostitution of women”.
19.
Poverty and unemployment increase the opportunities for trafficking in women. In
addition to established forms of trafficking there are new forms of sexual exploitation,
such as sex tourism, the recruiting of domestic labour from developing countries to work
in the developed world, and organised marriages between women from developing
countries and foreign nationals. These practices are incompatible with the equal
enjoyment of rights by women and with respect for their rights and dignity. They put
women at special risk of violence and abuse. Specific preventive and punitive measures
are necessary to overcome trafficking and sexual exploitation.
20.
Poverty and unemployment also forces many women, including young girls, into
prostitution. Prostitutes are especially vulnerable to violence, because their status, which
may be unlawful, tends to marginalise them. They need the equal protection of laws
against rape and other forms of violence.
21.
Wars, armed conflicts, occupation of territories often lead to increased
prostitution, trafficking in women and sexual assault of women which require specific
protective and punitive measures.
22.
State reports should describe the extent of all these problems and the measures,
including penal provisions, preventive and rehabilitation measures, which have been
taken to protect women engaged in prostitution or subject to trafficking and other forms
of sexual exploitation. The effectiveness of these measures should also be described.
Violence and equality in employment (Article 11)
Equality in employment can be seriously impaired when women are subjected to gender
specific violence, such as sexual harassment in the workplace.
23.
Sexual harassment includes such unwelcome sexually determined behaviour as
physical contacts and advances, sexually coloured remarks, showing pornography and
sexual demand, whether by words or actions. Such conduct can be humiliating and may
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constitutes health and safety problem; it is discriminatory when the woman has
reasonable grounds to believe that her objection would disadvantage her in connection
with her employment, including recruiting or promotion, or when it creates a hostile
working environment, Effective complaints procedures and remedies, including
compensations, should be provided.
States should include in their reports, information about sexual harassment and on
24.
measures to protect women from sexual harassment and other forms of violence of
coercion in the workplace.
Violence and Health (Article 12)
25.
Article 12 requires States to take measures to ensure equal access to health care,
Violence against women puts their health and lives at risk, State should establish or
support services for victims of family violence, rape, sexual assault and other forms of
gender based violence, including refuges, specially trained health workers, rehabilitation
and counselling.
26.
In some State there are traditional practices perpetuated by culture and tradition
which are harmful to the health of women and children. These practices include dietary
restrictions for pregnant women, preference for male children and female circumcision or
genital mutilation. States should take measures to overcome such practices and should
take account of the Committee’s recommendations on female circumcision
(Recommendation No. 14) in reporting on health issues.
27.
Compulsory sterilisation or abortion adversely affects women’s physical and
mental health, and infringe the rights of “women to choose the number and spacing of
their children” (16.1(e). States should ensure that measures should taken to prevent
coercion in regard to fertility and reproduction and---- ensure that women are not forced
to seek unsafe medical procedure such as illegal abortion because of lack of appropriate
services in regard to the fertility control.
State reports should report on the extent of these problems and should indicate the
28.
measures which have been taken and their effect.
Rural women (Article 14)
29.
Rural women are at risk of gender based violence because of the persistence of
traditional attitudes regarding the subordinate role of women, which persist in
many rural communities. States should ensure that services for victims of violence
are accessible to
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rural women and that where necessary special services are provided to isolated
communities. Girls from rural communities are at special risk of violence and sexual
exploitation when they leave the rural community to seek employment in towns
Measures to protect them from violence should include training and employment
opportunities and the monitoring of the employment conditions of domestic workers.
30.
States should report on the risks to rural women, the extent and nature of violence
and abuse to which they are subject, their need for and access to support and other
services and on the effectiveness of measures to overcome violence.
Family violence (Article 16)
31.
Family violence is one of the most insidious forms of violence against women. It
is prevalent in all societies. Within family relationships women of all ages are subjected
to violence of all kinds, including battering, rape, other forms of sexual assault, mental
and other forms of violence described under article 5 which are perpetuated by traditional
attitudes, Lack of economic independence forces many women to stay in violent
relationships. The abrogation of their family responsibilities by men, in situation of
financial difficulties, can be a form of violence and coercion. These forms of violence put
women’s health at risk and impair their ability to participate in family life and public life
on a basis of equality. Measures which are necessary to overcome family violence
include:
criminal penalties where necessary and civil remedies in case of
domestic violence,
legislation to remove the defence of honour in regard to the assault or
murder of a female family member,
services to ensure the safety and security of victims of family
violence, including refuges, counselling and rehabilitation
programmes,
rehabilitation programmes for perpetrators of domestic violence,
support services for families where incest or sexual abuse has
occurred.
32.
States should report on the extent of domestic violence and sexual abuse, and on
the preventive, punitive and remedial measures which have been taken.
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IL
MEASURES NECESSARY TO OVERCOME VIOLENCE
In light of these comments, the Committee recommends:
That States take all legal and other measures which are necessary to provide
1.
effective protection of women against gender based violence,
including, inter alia:
(a)
effective legal measures, including penal sanctions, civil remedies and
compensatory provisions to protect women against all kinds of violence, including inter
alia violence and abuse in the family, sexual assault and sexual harassment in the
workplace;
(b)
preventive measures, including public information and education programmes to
change attitudes concerning the roles and status of men and women;
(c) protective measures, including refuges, counselling, rehabilitation and support
services for women who are the victims of violence or who are at risk of violence.
That States report on all forms of gender based violence, and that such reports
2.
include all available data about the incidence of each form of violence, and about the
effects of such violence on the women who are victims.
That States reports include information about the legal, preventive and protective
3.
measures which have been taken to overcome violence against women, and on the
effectiveness of such measures.
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