May 1, 2017

Gender Justice: Judicial & Legislative Interventions

There is no tool for development more effective than the empowerment of women”.

– Kofi Annan

Various articles of the Indian Constitution and plethora of legislations advance the cause of gender justice and women empowerment in India. Still, we are struggling to achieve befitting and deserved share of rights for women in society. Recently, the World Economic Forum Global Gender Gap Report ranked India at 139 out of 145 countries on the economic participation and opportunity gap. India’s overall female labour force participation (FLFP) rate has dropped from 35% in 1991 to 27% in 2014 while the world average is around 50%.  Moreover, as per the figures from the National Crime Records Bureau, the year 2015 saw the registration of 3,27,394 cases under the head of Crimes against Women. It is pertinent to mention here that significant number of such crimes go unreported owing to some or the other factors including but not limited to attachment of some degree of social stigma in such cases.

This article seeks to identify the core legal issues involved in addressing the issues faced by women through discussions related to judicial intervention coupled with legislative efforts and recent policy framework in order to pursue related concerns of gender justice.

Judicial Pronouncements

“Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable.  It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men”. This was pointed out by the Hon’ble Supreme Court in State of Madhya Pradesh v. Babulal AIR 2008 SC 582.

It is generally said that law begins from the point where morality ends. The same also goes for offences against women.  Sexual violence apart from being a dehumanising act is also an unlawful intrusion on the right to privacy and sanctity of a female. It degrades and humiliates the victim and leaves behind a traumatic experience. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The courts are, therefore, expected to try and decide cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.

It is worth noticing at this juncture that it is a settled position of law that if a Court of Law finds evidence of prosecutrix truthful, trustworthy and reliable, conviction can be recorded solely on the basis of her testimony and no further corroboration is necessary. However, the judiciary itself has not remained untouched from criticisms and has rendered several judgments which can be regarded as injudicious. The case of Mohd. Habib v. State 1989 CriLJ 137is one such example.

The facts of this case included that appellant, aged 21 years, was alleged to have been arrested at the spot, for the offence of rape. On medical examination, it was found that the appellant had three simple injuries; one was on the skull, the second on right thumb and the third on the left hand. The prosecutrix was between 7 to 10 years of age. The medico-legal certificate even showed that there was a bite mark on the right thigh of the prosecutrix and that her hymen was also ruptured.

The counsel for the appellant, apart from others placed reliance on Rahim Beg v. The State of U.P. 1972CriLJ 1260 (paragraph 26), in support of his plea. In paragraph 26 of that judgment, it has been observed that:

“…If a girl of 10 or 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected by the doctor on the male organ of the accused. The absence of such injuries on the male organs of the accused would thus point to their innocence.”

The Court arrived at the conclusion that the medical evidence falsifies the evidence of the two eye witnesses as well as of the prosecutrix, and accordingly acquitted the accused. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court.

Yet another disputed judgment rendered in “The Mathura rape case” related to an incident of custodial rape in the year 1972, wherein the victim, a young tribal girl, was allegedly raped by two policemen in the compound of Desai Ganj Police Station in Chandrapur district of Maharashtra. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby suggesting no struggle and therefore no rape.  After the Supreme Court acquitted the accused, there was public outcry and protests, which eventually led to amendments in Indian rape law via – The Criminal Law (Second Amendment) Act 1983.

Another infamous case pertains to gang rape of Bhanwari Devi by a group of men as she attempted to stop a child marriage in their family. Bhanwari Devi was a social worker (saathin) at rural level in a development programme initiated by State Government of Rajasthan, aiming to curb the evil of child marriages in villages. The trial court acquitted the accused in this open and shut case. However, the case paved the way for the famous judgment called Vishaka and others Vs. State of Rajasthan and Others  AIR 1997 SC 3011, which for the very first time gave the definition of sexual harassment.

Vishaka Judgment

The Vishaka Judgment highlighted that it is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines in order to ensure the prevention of sexual harassment of women. It casted a duty on the employer or other responsible persons in work places and other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. It further defined “sexual harassment” and included such unwelcome sexually determined behaviour (whether directly or by implication) as:

  1. a) Physical contact and advances;
  2. b) A demand or request for sexual favours;
  3. c) Sexually coloured remarks;
  4. d) Showing pornography;
  5. e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

In cases where any of these acts is committed, the circumstances can be humiliating for the woman and may constitute health and safety concerns. It is discriminatory, for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.

Victim’s Privacy

Yet another issue relates to the publication of the name of the victim relating to certain offences like offence of rape. The same is against the letter and spirit of section 228-A of the Indian Penal Code. However, it is witnessed in several of the cases that the court itself has committed such a mistake. Although the courts are not bound by the provisions, but the court in such cases should carefully decline to mention the names of the victim to protect her civil liberties.

Noting this culture of publishing names of victims, it was laid down by Hon’ble Supreme Court in Bhupinder Sharma v. State of Himachal Pradesh AIR 2003 SC 4684,
“We do not propose to mention name of the victim, section 228-A of the Indian Penal Code, 1860 (in short ‘IPC’) makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C, or 376-D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publishing of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated we have chosen to describe her as ‘victim’ in the judgment”

Women in Judiciary

Some of these judgements, committing the error of severe social implications, are because of the gender imbalance within the judiciary. There exists a severe scarcity of female judges and lawyers. Supreme Court of India has only seen six female judges (till October 2016) since its inception in 1950. The 24 High Courts in the country have severe dearth ofof women judges with many High Courts not having even a single woman judge. The number of women that get recommended by the collegium to the government is also very low. It took more than four decades after independence for a woman to be appointed as a Supreme Court judge. A woman was appointed to the High Court only in 1959. At no point have there been more than two women judges in the Supreme Court.

While women got the right to practice in 1922, the first woman additional solicitor general could be appointed only in 2009. The country has not had a woman Solicitor General or Attorney General.

Sexual and Financial Harassment

The legal profession is male-dominated. Women face sexual harassment of varying degrees and sexual harassment laws need to be interpreted to keep in mind such instances. First, sexual harassment laws usually address harassment at the workplace. For women lawyers, the ‘workplace’ is often the courts. However, lawyers practising in the courts are not ‘employees’ of the judges, and therefore the definitions of workplace, employers and employees in sexual harassment law needs to be interpreted broadly.

Secondly, it is extremely difficult for women lawyers to complain of harassment. Women lawyers would face sexual harassment in various ways – from co-lawyers; senior lawyers; judges; co-workers and their employers.  Law students, legal interns and paralegals are particularly prone to harassment as well as others who access the system such as clients or litigants. The court corridors become a hub where almost every woman lawyer is observed and discussed by male lawyers, with respect to their dress, mannerisms and relationships. This gossip often gets carried to the judges, courts staff and clerks. Complaining against a senior lawyer or a judge too has huge repercussions on the woman’s future legal career perspectives.

Even today, there are clients who prefer male lawyers over female lawyers, mainly because of the traditional belief that the former are more capable of handling legal cases. Such preference is also attributed to the fact that India is still a male dominated society. Though women face challenges in the legal profession, no one can stop them to work in the field which is quite paying and rewarding if hard work and dedication is put in. Giving women more opportunities and by treating them equal to men in the legal field will give impetus to a lot of female lawyers to join litigation and make a good legal career for themselves. Appointments and special legal positions should be offered to women to create inspiration for the rest.

Empowerment through Employment:

For a long term commitment to improve the situation of women in society, empowerment has to be looked at beyond legislative measures and judicial pronouncements. Financial inclusion and independence is the surest means to empower women as it removes their dependence upon men. Financial independence also has a direct correlation with crimes against women. But instead of putting restrictions on women’s freedom, empowerment should be done in a more tenable and by socially wiser approach. Some of the judgments of Apex Court are worth discussing in this regard.

The Apex Court in Anuj Garg and Ors. v. Hotel Association of India and Ors: (2008) 3 SCC 1, declared ban on employment of women in establishment where liquor was served, as discriminatory as well as violative of Articles 14, 15, 19 and 21 of the Constitution. The Hon’ble court also observed that with the advent of modern State, new models of security must be developed. It suggested that there could be a setting where the cost of security in the establishment be distributed between the State and the employer.

In the case of AIR India v. Nergesh Meerza and Ors (1981) 4 SCC 335 validity of Service Regulations 46 and 47 were in question. Regulations 46 and 47 were contended as discriminative and ultra vires by respondents. Regulation 46 was related to termination of service of air hostesses (AH) upon attaining age of 35 years or on marriage, if it took place within 4 years of service or on first pregnancy whichever occurs earlier.

With regard to air hostesses, the contention of the management was that they are in a special class. They have to deal with passengers of various temperaments, and a young and attractive air hostess is able to cope with difficult or awkward situations more competently and more easily than an older person with less personal prepossessions. It was held that the condition namely ‘or on first pregnancy whichever occurs earlier’ was unconstitutional, void and violative of Article 14. Regulation 47 provided for extension of service of AH at option of Managing Director (MD). Thus, it conferred wide and uncontrolled power on MD and suffered from excessive delegation of power and hence the same was also held violative of Article 14.

However, the said judgment is criticised on the ground that, in holding that AFPs (Assistant Flight Pursers) and AHs (Air Hostesses) constituted separate classes, and therefore different service conditions were valid, the Court ignored the fact that the classes themselves were constituted along the lines of sex.

It can be concluded that sex discrimination in jurisprudence is still developing with time. However, the ongoing support of the apex court with respect to permanent commission of women pilots and similar issues are commendable. A socially sensitised judge is better armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and complicated provisos.

Recent Policy Redesign

The government, in the recent, has also strived hard by way of its recent policy redesign to make gender justice accommodative and considerate enough to incorporate all related concerns.  It was in the year 2001 that National Policy for the Empowerment of Women was launched with an objective to bring about the advancement, development and empowerment of women. The policy was widely disseminated to encourage active participation of all stakeholders for achieving its goals. The recent years saw the launching of various programmes by the government to address and take forward such goals.

Skill development and Employability

The Ministry of Women & Child Development has been administering ‘Support to Training and Employment Programme for Women (STEP) Scheme’ since 1986-87 as a ‘Central Sector Scheme’. The STEP Scheme aims to provide skills that give employability to women and to provide competencies and skill that enable women to become self-employed/entrepreneurs. The Scheme is intended to benefit women who are in the age group of 16 years and above across the country. The Rashtriya Mahila Kosh (National Credit Fund for Women) was set up in 1993 to make credit available for lower income women in India. The government’s investment in skills training through schemes like the Deen Dayal Upadhyaya Grameen Kaushalya Yojana is also laudable in this aspect.

The Ministry of Women & Child Development has also recently launched “Mahila E-Haat” a bilingual portal in March, 2016. This is a unique direct online marketing platform leveraging technology for supporting women entrepreneurs. This exclusive portal is the first in the country to provide a special, focused marketing platform for women. It aims at financial inclusion and economic empowerment of women.

Improving Child Sex Ratio

Declining Child Sex Ratio (CSR), defined as number of girls per 1000 of boys between 0-6 years of age, in past few decades is alarming. The decline in the CSR is a major indicator of women disempowerment. Social construct discriminating against girls on the one hand and easy availability, affordability and subsequent misuse of diagnostic tools on the other hand, have been critical in increasing sex selective elimination of girls leading to low child sex ratio. In this respect, the recent initiative called ‘Beti Bachao Beti Padhao’ can be a game changer. This is being implemented through a national campaign and focussed multi sectoral action in 100 selected districts low in CSR, covering all States and UTs. The objectives of this initiative aims to prevent gender biased sex selective elimination, ensuring survival & protection of the girl child and imparting education and participation of the girl child.

Improving Health & Nutrition

India has a high neonatal mortality rate. It is estimated that out of all the infants who die in India, 70 percent die in the first month. The issue is directly attributable to the poor health/ malnourishment of pregnant mothers. It is pertinent to mention here that on prevalence of anaemia in women of reproductive age, India ranks 170 out of 185 countries at 48.1% (Global Nutrition Report). A mother’s health and nutritional status significantly affect the biological development of the foetus.

The National Food Security Act, 2013 legislated a universal cash entitlement for pregnant women of atleast six thousand rupees. This program presents a promising opportunity to help improve nutrition during pregnancy.  Also, Janani Suraksha Yojana (JSY) – safe motherhood intervention under the National Rural Health Mission (NRHM) being implemented with the objective of reducing maternal and neo-natal mortality by promoting institutional delivery among the poor pregnant women aims to improve the situation in this respect.

Recently, the Maternity Benefit (Amendment) Bill, 2016 was passed by Rajya Sabha in August 2016, seeks to increase the period of maternity benefit to 26 weeks from the present 12 weeks. The Bill also introduces a provision to grant 12 weeks of maternity leave to a woman who legally adopts a child below three months of age and also to a commissioning mother. It is estimated that the bill will help nearly two million women employed in the organised sector. However, on closer analysis it can be argued that the Maternity Bill may not be as progressive as it sounds as it can further make women less desirable as employees in free market enterprises. For example, employers would like to avoid employees who may take half a year off in the foreseeable future.

When it comes to ensuring Gender Justice in India, the three arms of the government – legislative, executive and judiciary – have to work in tandem for a Gender Just nation. We still have a long road to traverse.

(Ravi Prakash is an Advocate based in Delhi and Patna.)

(This article is carried in May-June 2017 issue of India Foundation Journal)


Latest News

Leave a comment

Your email address will not be published. Required fields are marked *