Inclusive justice in the Indian Courts

Session Report
Asra Malik

A lack of Inclusive justice and perpetuated violence against women is a pervasive and multidimensional issue that demands a comprehensive response across multiple fronts which was discussed by the third speaker, Advocate Dr. Shalu Nigam emphasized, providing closure and psychological healing for survivors through neutral platforms is crucial, given the differential resources and access to justice for victims versus the accused in gender biased cases, which involve the deprivation of fundamental liberties on the 5th day of the “Ending Gender-Based Violence Cohort 2” online national spring school program organized by IMPRI and the Gender Impact Studies.

The judicial system, meant to uphold justice and equality, often grapples with deeply ingrained gender stereotypes that undermine the pursuit of true equity. The Supreme Court’s handbook on combating gender stereotypes serves as a guide, suggesting changes to language used in legal parlance, such as using “homemaker” instead of “housewife” and “menstrual products” instead of “feminine hygiene products.” These linguistic shifts aim to dismantle the stigma and prejudices associated with traditional terminologies.

The handbook also challenges the correlation between women and their perceived nature based on prejudices, urging a shift in societal attitudes.

Representation of women in the Justice system

Ensuring adequate representation of women in the legal fraternity is a pressing concern. The Women’s Reservation Bill or the Nari Shakti Vandan Act-2023 propose reserving 33% of positions for women, aiming to fundamentally reshape gender dynamics and empower women’s rights. However, the current landscape paints a grim picture – since 1950, only 4% of judges in courts have been women, with a mere 11 women entering the High Courts and only 3 sitting judges out of 33 in the Supreme Court. The statistics are equally dismal among advocates, with women comprising only 15% of the 1.7 million registered professionals. 

This gender imbalance extends to other marginalised communities, with a disproportionate representation of Scheduled Castes (23 out of 790 HC judges), Scheduled Tribes (10), Other Backward Classes (76), minorities (36), and women (111) in the higher judiciary, where 70% of judges are male.

Infrastructural Deficiencies in the Indian Courts

The lack of basic infrastructure and facilities within courthouses further pushes a need for inclusive justice. Some courts still lack properly functioning toilets, posing a fundamental impediment to women’s participation and well-being. Moreover, the courtroom environment itself can be hostile and exclusionary, characterized by stigma, lack of legal approaches, and an overall culture that hinders women’s equal access to justice.

The underrepresentation of women in law enforcement further compounds the issue, with women constituting only 3.5-10.5% of the police force across various states, and a national average of just 8.2%.

Gender-based Discrimination and non-inclusive justice

Advocate Dr. Shalu Nigam cited examples that underscore the gravity of the problem. In one case, a judge in Uttar Pradesh, who had filed a complaint against a colleague, was advised to end her life by the Chief Justice of India, highlighting the potential for retaliation and dismissal of legitimate grievances. Her petition seeking the transfer of the accused judge was dismissed by the Supreme Court within 8 seconds.

In another instance, women advocates at the Supreme Court had to file a case to demand the installation of sanitary pad vending machines on the premises, a basic necessity that should have been readily available. The Delhi High Court subsequently installed such machines, and the Ministry of Home Affairs allocated ₹21 million in 2019 to provide these facilities in all court premises.

Patriarchal Narratives and Regressive Judgments

Despite incremental progress, many court decisions continue to uphold patriarchal narratives and reinforce regressive gender stereotypes. For instance, in some cases, a wife’s refusal to observe traditional rituals like Karva Chauth or wear symbols like mangalsutra or sindoor has been deemed grounds for divorce, reinforcing the notion of a “good wife” as subservient and submissive. Women who prioritize their careers or choose to live separately from their in-laws are often labeled as “bad wives,” with courts granting husbands the liberty to obtain divorces on these grounds.

Instances of judicial decisions reinforcing patriarchal logic, such as Arup Hazra v Manashi Hazra (2009), where the wife was found guilty for refusing to cook and serve her husband and in-laws, or Praveen Mehta vs Inderit Mehta (2002), where the wife’s illness was deemed an insufficient excuse for her lack of sexual cooperation, highlight the deeply entrenched biases within the legal system.

Breaking Barriers: Landmark Cases

Despite the challenges, there have been instances of women challenging discriminatory practices and paving the way for progress. C.B. Muthamma, the first woman to clear the Indian Civil Services examinations, the first woman Indian Foreign Service officer, and the first Indian woman diplomat, fought against the discriminatory Rule 18(4) of the IFS (RCSP Rules, 1961), which stated, “no married woman shall be entitled as of right to be appointed to the service.” Her victory in 1979 marked a significant milestone in dismantling gender-based barriers in the civil service.

Similarly, the Madras High Court’s ruling in September 2023, which acknowledged a homemaker’s entitlement to an equal share in property, challenged long-standing patriarchal norms and paved the way for greater financial empowerment of women.

The Need for inclusivity in Indian Courts

To combat gender-based violence and ensure justice for survivors, a multi-stakeholder approach is vital, involving reforms in laws, policies, governance, awareness, and justice mechanisms. Institutional reforms, survivor-centric processes and infrastructure, education, and updated socio-cultural narratives promoting equality and inclusion are crucial. Continued civic participation and adaptation to evolving challenges will be key to dismantling the systemic barriers and biases that persist within the legal system.

Advocate Dr. Shalu Nigam’s insights underscore the urgent need for the courts, as custodians of constitutional values, to uphold the spirit of the constitution, protect the rights of citizens, and disburse justice free from stereotypes and prejudices. Only by actively challenging deep-rooted biases and embracing inclusive and equitable practices can the judicial system truly fulfill its mandate of safeguarding the rights and dignity of all individuals, regardless of gender or social standing.

Marginality as a Site of Resistance

As Bell Hooks eloquently stated, “I am located in the margin. I make a definite distinction between that marginality that is imposed by oppressive structures and that marginality one chooses as a site of resistance – as a location of radical openness and possibility.” This notion of marginality as a site of resistance highlights the importance of empowering marginalized voices and creating spaces for radical change and transformation.

The session underscored the need for multi-stakeholder action across laws, policies, governance, awareness, and justice mechanisms to holistically combat gender-based violence – whether through institutional reforms, survivor-centric processes and infrastructure, education, or updated socio-cultural narratives promoting equality and inclusion. Continued civic participation and adaptation to evolving challenges will be key to dismantling the systemic barriers and biases that persist within the legal system and society at large.

Conclusion 

The session also featured nuanced analyses of real-world case studies, diving deep into the legal intricacies and available support structures for victims based on their specific circumstances. These discussions provided invaluable context on navigating the complexities that frequently arise.

Overall, the engaging Q&A involving participants and regulators facilitated a multi-stakeholder dialogue on identifying pragmatic solutions. It is through such inclusive conversations that we can make substantive progress in combating sexual harassment more holistically and effectively.

Acknowledgement: Asra Malik, Research Intern at IMPRI.

Read more event reports of IMPRI here:

A talk on of gender-based violence with the LGBTQIA+ community

Harassment Against Women: A Pervasive and Multidimensional Issue