All is not well with India’s courts as an increasing number of women advocates and activists are calling for justice on gender issues that cut across the board.
Speaking on Thursday at a discussion on “Perspectives on Judgments Relating to Women Victims”, Senior Advocate of the High Court of Madras R. Vaigai said, “Most of the bias that happens in the judgments are subject bias (interested in one of the parties) and it happens because the victim is a woman.”
Add to this archaic criminal laws framed when India was still a British Colony and the deck is heavily stacked against women. R.Vaigai said while Article 14 of the Constitution states that ‘all are equal’ Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. She said ‘sex’ should be replaced by ‘gender’ as the latter better profiles socio-economic issues.
Two more advocates backed calls for more gender sensitivity at the seminar held at the Uniiversity of Madras. Brinda Karat, Politburo Member of the CPI (M) has also called the court order under discussion gender insensitive.
The case in question relates to a man who was accused of raping a 15-year old who (the victim) was then ordered by the Madras High Court to marry her rapist. “This happens because the judges’ minds are clouded by concepts of morality and shame,” R.Vaigai said. “The bias is an institutional bias in which the police, medical personnel and the judges all have their bias towards women.”
The same issue of bias echoed in the case relating to a differently enabled girl. The State Vice President of the All India Democratic Women’s Association (AIDWA) U.Vasuki pointed out that Madras High Court Judge C.N. Prakash weighed in with his personal views that the father of the girl was falsely accusing the neighbor. The matter is still sub – judice and the high court has to decide whether the case has to be handed over to the CBI-CID.
In the more recent Nirbhaya case the Justice Verma Commission said a woman gets victimized because of the police, medical personnel and judiciary. Addressing the seminar, Advocate of the Madurai Bench, High Court of Madras U. Nirmala Rani said Court of Madras said, “In judgments involving women victims there is a bias on the basis of caste, class and gender.” In her research on women victim judgments, she found that in 80% of the rape cases, the accused is charged for rape in the lower court but after the case comes to the High Court either the accused are acquitted or are charged for lesser crimes.
In 1996, the NGO Sakshi conducted a study on a judgment related to women victims and interviewed 109 judges. The results showed that 74% of judges felt marriage is sacred. They held the view that physical violence is provoked by women and they have to put up with it.
Vaigai said that a woman should be given “her right of agency” which means giving her the right to play an independent role in cases. She should have the right to voice her opinion. A crime should be defined in the perception of a woman. Laws need to be restructured for it.