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Blind to what, Your Honour?
By Indira Jaising | Dec 30, 2012, 05.32 AM IST

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Of all the promises made in the Constitution, the most important are
the promises of the 'right to life', the 'right to dignity', the
'right to personal liberty' and the 'right to bodily integrity and
health'. However these promises are yet to be redeemed for women. Rape
and other forms of sexual assault,domestic violence,dowry death and
honour killings — the most brazen violation of these rights — are a
real and daily danger for most women.

The cry that has been reverberating in the streets of the capital —
and across the country — from a new and younger generation of citizens
is: "We want justice". It is addressed to us judges and lawyers whose
primary responsibility is to protect the rights of the people. The
women of this country are no longer willing to tolerate the
unconscionable delays in the delivery of justice. It is the sacred
duty of judges to prevent violence against women in the home; at the
work place and on the streets and hold the perpetrators accountable.
What is it that stops courts from securing justice for women? Why has
the law not been able to convict the accused when it comes to crime
against women? The situation is best summed up by a famous Orwellian
quote—' to see what is in front of one's nose needs a constant
struggle'.

To see the lack of judicial will to get justice for victims of
gender-based violence, as stemming from a deeply entrenched prejudice
and misogyny in the justice delivery system, including the courts and
their judges, is an exercise demanding a constant struggle. It is so
much in front of our noses that we, women and men included, legitimise
the presence of sexism in our lives and carry it to the corridors of
the court and into the courtrooms and into judgements.

This is a part of the Indian reality; from the private sphere of the
'home' to the public space like places of work; from the open streets
to the corridors of courts playing out in the theatres of justice.
Today, the belief in equality is not sincerely held at all. On the
contrary, the social system, including the judicial system, is built
on a hierarchy along caste and gender lines.

It is no secret that violence against women stems from the deeply
unequal relationship between the two sexes in private and public life.
It is also no secret that this misogyny is deeply rooted in our
society, including within the system of administration of justicefrom
investigation to trial, to judgment. A high court judge in Orissa in
his judgement once famously held, that it was not possible for a man,
acting alone, to rape a woman in good health. There you have it, the
distinction between "legitimate" rape and " illegitimate" rape (to
borrow from the infamous comment by Todd Akin) coming from a high
court judge.

This is the same thing you hear so often from judges that "women are
misusing the law." They decide what is the legitimate use of the law
for women, based on a deeply sexist view of how a woman should behave;
what she should desire and how much violence she should tolerate. A
casual glance at the kinds of questions a woman is asked in any
prosecution of gender- based violence or a reading of judgments of the
court will reaffirm this view. On one occasion when a woman lawyer
asked for an adjournment, a district judge said, " I know how you
women lawyers make it". He was rewarded by being appointed to the high
court.

Sexual violence against women is unique as it begins in the home and
moves out to public places. The problem begins with the assumed
consent that women give to sexual intercourse within a marriage. Rape
by a man of his wife without her consent is not an offence. Since this
is a settled norm, it matters little whether forcible sexual
intercourse is with the wife or a stranger on the street. With this
accepted culture of rape within marriage standing tall, we have little
hope of changing the culture of violence against women anywhere. The
assumed consent of a woman to sexual intercourse becomes ingrained in
the psyche of a man — as a husband, a son, a brother and this psyche
continues into public spaces. Thus it is imperative to recognise that
non-consensual sexual intercourse is unacceptable regardless of
whether it is with a wife or a stranger, if we want sexual violence
against women to stop. A legal culture that creates 'legitimate and
'illegitimate' violence needs to change.

It is heartening to see for the first time, a large number of men on
the streets protesting against sexual abuse of women. It is a new
generation which brings hope that the tendency for violence against
women is about to end as men of future generations will not tolerate
such violence.

Lack of adequate number of judges or excessive workload is no longer
an acceptable excuse to the women of this country for delaying
judicial decisions. They know that it is the abuse of the process of
law by vested interests and the utter indifference to women who have
been sexually abused, that cause delays, not lack of infrastructure.
An approximately 40% increase in the number of judges between 2005 and
2012, has not produced a corresponding decline in the pendency of
cases. Justice does not reside in the brick and mortar courtrooms but
in the heart and soul of judges and lawyers who represent victims of
injustice. Any judge worth the name knows how to prevent delays and an
abuse of the process of law by the rich and the famous.

The first duty of judges is to give cases of sexual assault priority
and deal with them expeditiously with zero tolerance for delay. The
demand for fast track courts is a metaphor for the intolerance of a
dysfunctional legal system. While dedicated courts may go some way in
dealing with the issue of delays, they will have to be accompanied by
support structures, which enable a fair investigation and prosecution.

Women are conspicuous by their absence from the courts as lawyers and
as judges. On the other hand, our law schools have at least 50% women
students. Yet due to the patriarchy embedded in the judiciary and the
legal system, the number of women lawyers and judges is negligible.
Even those who manage to penetrate the highly patriarchal framework
are discriminated against in terms of appointments, designation as
seniors and promotions. Women are constantly under the microscope
being pushed to prove themselves while male lawyers need pass no test
of competence. The old boys network effectively keeps women out of the
span of all zones of influence.

All talk of increasing the penalty for rapists to death is hollow. As
the law stands today, a m a n fo u n d guilty of rape can be given a
life sentence, And yet in my entire career as a lawyer spanning over
40 years, I have yet to see a single case in which a life sentence has
been meted out to a rapist, what then to talk of the death penalty!
This calls for urgent action plan by the Chief Justice of India and
the chief justices of all high courts to raise as fast as possible the
number of women judges in our courts. A few years ago, a woman who I
represented in a classic case of sexual harassment, once asked me why
her appeal was not being listed before a woman judge in the Supreme
Court. My answer was simple, "because there is no woman judge in the
Supreme Court." At this she expressed her amazement and asked, if the
Supreme Court could mandate that the chairperson of a sexual
harassment committee which was to be set up by employers must be a
woman, how come that law does not apply to the court itself ? I had no
answer.

A critical mass of women in the judicial system and in the prosecution
will inspire confidence in the system for women. The world over, this
is known to happen. Women today have no stake in the judicial system
and this is reflected in the cry "We want justice".

A demand for accountability of institutions of justice delivery, the
police and the courts must accompany the demand for appropriate laws.
Accountability of the police must start with a complaints procedure
within the police service itself where a complaint can be lodged for
non-performance of duties. A clear command responsibility must be
articulated within this mechanism so that in case of non-performance
of duties by a junior, the senior officer is held liable. When a
pattern of non-performance emerges, leading to a permanent sense of
insecurity in which women live, the accountability must be that of the
head of the police, and of the political establishment. Confidence in
the administration can only be restored by measurable action against
people in positions of power.

The judiciary has long been a selfregulating, self- appointing
institution. We need a transparent method of appointment of judges
where the antecedents of the proposed appointee can be publicly
scrutinised. Accountability of the legal system must carry with it,
accountability of judges. We need an official mechanism for monitoring
the performance of the judiciary to check how content of their
judgements meet the constitutional goals of equality. We need
independent special rapporteurs drawn from civil society to report
directly to Parliament on the performance of the legal system, the
judicial system and the police system and violence against women.

It is time for standards to be put in place as to how judges must
behave with women lawyers and litigants. The language of the law must
be sanitized of all its male chauvinist content. No judge, let alone a
Supreme Court judge must ever be allowed to use sexist language in
judgements or during the course of arguments in court. Accountability
starts at the top with the Supreme Court, what a judge of the Supreme
Court thinks and says today, will be said and done by the 17,000
subordinate court judges who deliver justice under the supervision of
the high courts.

We need a protocol on how judges ought to behave with women in courts
and how they should address women's issues in their judgements. Gender
sensitive language must reflect in judgements dealing with women. This
is not a matter of form but of substance. Changing culture and
mindsets often requires language to change and rules and regulations,
which reflect the change and do not permit a fall from standards. This
is the time when the Chief Justice of India must rise to the occasion
and speak to the nation and inform us what will be done to restore the
confidence of the people in the justice system. Besides his role as a
judge, he has a role as the head of the judiciary responsible for the
administration of the justice.

The single most important statement we would like to hear from him, is
that discrimination against women by judges will not be tolerated; the
judiciary will have to exhibit and demonstrate zero tolerance of
violence against women in the home, and on the streets.

The goal of law is to sustain life not support its destruction. This
is what the 23-year-old was trying to tell us, before she died. "I
want to live," she said, not die of shame. She changed the way society
looks at rape — from blaming the victim to focusing on the rapist. All
law reform must move in that direction, asking how we can build a new
life-sustaining legal culture, a more equal culture, with justice for
all. That is the question we must address — with or — without a
special session of Parliament.

The writer is Additional Solicitor General of India
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Mary Breeding (Washington, DC)
10 hrs ago
Note--5 rights every woman in India should be fighting for today: 1. A
better police force—better training and gender awareness 2. Judicial
reforms—shorter wait times for court cases (particularly for violent
crimes) 3. Revisions to how the Indian Penal Code defines sexual
assault 4. A secondary system for faster trial in sexual assault
crimes (Australia has one.) 5. More female judges in courts

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Namit (India)
10 hrs ago
Dear author, I read your article and many sensible people have same
thoughts. But have you done your duty fully as additional solicitor
general of India? Have you taken stand against corruption and other
cases in the government or supported them in the courts? you may say
that you are there to do the good. But if you cant do the good due to
pressure from politicians, why not leave the job and expose them?
Writing articles is one thing, how many judges, lawyers, politicians
etc actually do practice that and think of betterment of society? We
all need to look within..

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Jim (USA)
11 hrs ago
Waiting to see what kind of response this thoughtful article gets
here. This is a forum full of hateful, bigoted, semi-literate wretches
who can barely write one straight sentence but spew venom and malice
against one and all -- misanthropes and misogynists who are full of
poison. Let's see if they are constructive in this debate.

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Fauzia (Canada)
1 day ago
Bollywood actually is responsible for showing awful provocotive
moovies . Indian Govt must ban the provocotive mooies and especially
songs that create a chaos in the minds of youth and they go out and do
shameful acts. Indians must see around for goodness. The actors just
make money but at what cost? They dont care that they have changed the
tone of the country. They should be shameful. The actresses half naked
are taking over the minds of Indian men, who disrespect women, by
raping, inappropriate touchings and even with their looks. Indian
women must stand for their respect by not watching these filthy
moovies for themselves, for partners or their children.

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Indur Chhugani (Mumbai, Maharashtra)
70 Followers
1 day ago Silver: 315211
Reproducing a Para from SLP - which will be filed at Supreme Court in
next 10 days - Need help of some prominent Lawyer at the Supreme
Court. K. The High Court Judgement erred in para 29, and has left the
Petitioner dumb founded. Petitioner in his written submissions for
Crwp 2 414 /05 has stated :: " Pervert actions of Respondent No 3.
A. All details of the behavior of this police officer towards the wife
of Petitioner Smt Rekha I Chhugani are stated in para (7) (l) onwards
on page 28 – However Petitioner does not wish to pursue this matter
now". It was the Judges who Suo Moto took up this issue very strongly,
they went through Affidavit of Mrs Rekha Chhugani, Psychiatrist
Prescription and petitioners complaint dated 30th May 2005 to Khar
Police and Rekha Chhugani's attendance diary to the police station,
which are all in the writ petition and insisted that the Police
explain what inquiry they conducted and police had no explanation.
Petitioner reiterated on 2 occasions "We do not wish to pursue action
on this count, since 7 years have elapsed" – So this para stating
"Such allegations are intended to deviate the real case against the
petitioner" is most shocking.

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KJoshi (USA)
1 day ago
Another facet of injustice Indian females citizens have to bear is
acid attack on their faces. Change the law to reflect that a person
convicted of disfiguring a female face should also be disfigured by
acid. The targeted injury on the culprit should be 200% of that
inflicted on the victim. The current law is too lenient & does not
stop the crime to be repeated again. The iron is hot, so lawmakers hit
the nail on the head & amend the laws. Amen.

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Srinivasan Gopalarao (india)
3 Followers
1 day ago Silver: 1414232
The constitutional guarantee is only in paper. It never got to the
stage of execution. The rights of indian citizens is not one of
constitutional guarantee. The constitution can only acknowledge a
natural right.This is where most of the educated make the mistake. The
judiciary gets its legitimacy only through the constitution and the
constitution should have got its legitimacy from people. The
constitution is a lengthy document which was approved by 200 0dd MPs
elected during British rule and could not have possibly understood the
implications. The preamble itself is a lie:"We the
people....................." never happened "

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priya (Mumbai)
1 day ago
We keep blaming the police, politicians etc etc, but none have as yet
pointed fingers at judiciary, come on guys, it's the judiciary which
actually sucks, have you heard of any cases of near past which has
been dealt with real fast? 2G scamsters are roaming free, so are CWG
scamsters, trial of kasab took 4 years and 40 crores, why all those
couldn't have been dealt in couple of months time? In Singapore they
take only a months time to come to decision, maybe this why crime
rates are extremely low there, unlike in India, even kasab could have
come out in bail if he was represented by a ' smart lawyer'

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Indur Chhugani (Mumbai, Maharashtra) replies to priya
70 Followers
1 day ago Silver: 315211
Priya - Please read my post - 3 posts after you - It is the rotten
Judiciary, who is more responsible for the sate of affairs in the
country --- Not only did they not take action against a Police officer
, who misbehaved with my wife AFTER he put me in police lock up in a
false case --- BUT the HC Judges written a remark against me - "Such
allegations are intended to deviate the real case against the
petitioner" .

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Bhaskar Bhatt (New York)
1 Follower
1 day ago Silver: 63133
Very well said We need next chief justice of India a women

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kannansivaramapillai (Madurai)
1 day ago Bronze: 20811
I fully agree with the views of the additional solicitor general of India

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kk (delhi)
1 day ago
Change is needed both in law and mentaly Only then such crimes will stop.

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--
Saurav Datta

Twitter: SauravDatta29
Mobile : +91-9930966518

"To those who believe in resistance, who live between hope and
impatience and have learned the perils of being unreasonable. To those
who understand enough to be afraid and yet retain their fury."

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