BY APARNA BHAT
Writing about gender and commenting on the harassment that women
continue to suffer is passé. A lot has been written about it and more will yet
be written. On the one hand, we have a woman president, have had a woman prime
minister, the most powerful person in the ruling party is a woman, we have a
Dalit woman who is a powerful politician. But on the other, an ordinary woman
still faces a huge challenge in terms of a dignified life. Negotiating space in
her home, on public transport, in the workplace and on the street is a constant
battle. When it comes to violence against women, there is no age, class or
religious barrier.
The legal system has grudgingly acknowledged this reality and
made tangential interventions which superficially address and attempt to redress
violence against women. When women have clung to these logs of hope in a
turbulent system, there is a stinging rebuff that comes from the least expected
quarters, which makes them shudder, rethink and return to the starting point.
The question that continues to haunt all those who work with women in various
capacities is how much have we progressed since 1947 as far as women are
concerned?
It may be interesting to examine this question from the
perspective of women who have tried to use the law for the benefit of their
gender.
A single woman, the mother of two children, was being stalked by
a co-worker. He called her regularly after office hours and on more than one
occasion he told her that he admired her because she was a strong woman and
would like a friendship with her. Often these calls crossed the line of decency.
She rejected his advances and advised him to keep things limited to a
professional relationship. As he continued to stalk her, she made an oral
complaint to her seniors at work, requesting them to warn off the man. However,
the harassment continued. She was then forced to complain in writing. Following
this complaint, the management decided to follow a "democratic process", seeking
the opinion of all staff members about the best course of action that could be
taken in the circumstances.
Such a thing is unheard of, never resorted to even in decisions
involving collective bargaining, let alone in disciplinary proceedings. The
democratic process resulted in a decision that both the woman and her stalker
should be transferred, to two different branches of the organisation. The
management found it convenient to implement this decision and wasted no time in
passing transfer orders. Outraged, the woman filed a complaint against her
supervisor for ignoring the sexual harassment. The offending man was making it
impossible for her to carry on working with dignity and peace in her workplace.
The transfer order only added insult to injury. She reminded the management that
the law warranted an inquiry, as it was a case of sexual harassment.
The management then grudgingly set up a committee which looked
into the complaint. The man admitted before the committee that he used to stalk
the woman and also used to call her. He however justified his actions, claiming
that he did so because he admired her. The committee accepted his justification
and ruled against the woman. The woman then approached the high court to seek
redress, certain that she had a clear case in her favour. The high court
entertained the petition and asked the management to present its version before
the court but did not pass any interim orders. The fact that the woman chose to
go to court did not go down well with the management. Despite the pendency of
the petition in the high court, with utter arrogance and in complete disregard
of the proceedings before the high court, the management decided to initiate
disciplinary action against her with regard to some travel bills she had
submitted a few years earlier. This inquiry was stopped only after the high
court intervened.
However, by this time the woman was exhausted from pursuing the
case, faced with the burden of bringing up her two college-going children
without an income. When the high court suggested to her that she return to work
in a branch of her choice, and on the assurance that her stalker would never be
posted in the same branch, she readily accepted even though that was not the
remedy she had originally wanted. The management was directed to pay her wages
for the period that she was unable to work and she returned to her job. At the
end of it all, she essentially remained where she had started even as the
offending man suffered no consequences.
Another case involves a mother who sought justice for her child,
a victim of sexual abuse by a teacher. The child, who was only four years old,
told his mother about how he had been sodomised by his teacher, a person he was
petrified of. The mother filed a police complaint and also complained to the
school. Surprisingly, the school management chose to support the teacher,
claiming that the sexual abuse complaint was untenable. The child had to be
shifted to another school.
In the criminal trial that took place, despite the fact that the
family had engaged a counsel and the court and the prosecutor were aware of
this, charges were framed in her absence after a manipulated transfer of the
case to a different judge and a change of date. While the police had registered
a case of sodomy, the charges framed were for attempt to commit sodomy. This
basically meant lesser punishment. When the whole process of framing the charges
was challenged, the court was of the opinion that no harm was done and in the
event of there being adequate evidence that sodomy was committed, the charges
could be altered. The mother accepted this, as she had full faith in what her
child was saying and was also confident that the child would depose truthfully
in court, which would result in the charges being altered. Little did she
realise then that alteration of charges was not a simple affair. With full faith
in the judicial system, supported by an order from the high court which allowed
the child to depose outside the court, evidence was recorded. The child’s
testimony took a long time, at the end of which the judge was convinced that
this was a case of sodomy, not one of attempted sodomy. Accordingly, charges
were altered.
In the criminal justice system, when charges are altered, the
accused has the right to cross-examine the witness in the light of the fresh
charges framed. The accused in this case obviously wanted to take advantage of
this privilege and sought permission to cross-examine the child. By then the
child was exhausted, traumatised and undergoing therapy for the abuse and the
post-abuse court processes. It was cruel to drag him back into the trial. The
mother challenged this judicial process in a superior court. The trial came to a
standstill and after keeping the matter pending for a long time, the high court
rejected her plea. However, she still did not lose faith and challenged the high
court’s order in the Supreme Court.
As the arguments proceeded in the apex court, she realised that
the only option available to her was to negotiate with the court and limit the
charges to attempted sodomy. This was the only way for her to ensure that her
son was not subjected to yet more gruelling cross-examination many years after
the incident. The child is 10 years old today and the Supreme Court is
considering whether the trial should proceed on the attempt to commit sodomy
charge. Exasperated by the vagaries of the legal system, the hapless mother is
now fighting to get to where she had first started.
Yet another case involves the harrowing ordeal of a mother who
had lost her son in a communal riot. He went missing in the midst of the
violence. She feared that he had been killed, for a lot of people known to her
who were also reported ‘missing’ around that time were subsequently found to
have been killed. Along with others who were in a similar situation, she
approached every single police and government authority for help in locating her
son’s body. But none of them provided her any support.
A few years later she learnt that the bodies of a large number
of people who had been killed during the carnage had been dumped in a nearby
forest. She and others approached the local police through a citizens’
organisation, asking for help. When the police refused to give them any
assistance, the group decided to act on their own. Digging in the suspected
area, they discovered the bodies dumped in a mass grave. Having discovered the
bodies more than four years after the killings, she and the rest of the group
could have found emotional closure by performing the last rites of their loved
ones and giving them a dignified burial. Instead, this woman chose to seek
justice for her son who was denied dignity in death. Supported by the citizens’
organisation, she approached the high court. Her plea was simple – an
investigation into the manner in which her son and other victims had been buried
without their families’ knowledge. A reluctant high court then ordered DNA
testing to ascertain whether the deceased were in fact relatives of the
complainants.
Out of the 21 DNA samples tested, four years notwithstanding,
the samples from eight bodies actually matched those of their kin. The woman and
her supporters were now confident that an investigation would be ordered and
they would finally get justice. Unfortunately, the legal system has not been as
straightforward as one thinks it is. The petition was rejected on the ground
that these people had taken the law into their own hands and hence did not
deserve any justice. The court also ruled that there was no denial of justice at
all since the state machinery had taken all the steps it ought to have taken.
Yet the mother did not give up. She appealed against the high court order in the
Supreme Court.
The Supreme Court initially entertained the petition but
rejected it without any reason two years later. None of the bodies that were
taken for DNA sampling have been handed over to the relatives and so the
question of a dignified burial does not arise. All these women sincerely
believed that they would get justice from the system. They were not looking for
money, property, power or any other mundane relief that companies and business
persons usually seek from the court. All they asked for was redressal in the
form of some acknowledgement that a serious offence had been committed. But
unfortunately for these women, the judiciary failed to deliver.
The experience of these women and others similarly placed in the
course of exhausting, long-drawn-out legal battles leaves them feeling that
justice is not something they can get from the legal system. In all these cases,
the remedy they sought was possible, as all of them had foolproof evidence and
the law provides for a remedy. However, all of them were denied it.
Often, after encountering experiences of this kind, one might
wonder whether the legal system is inherently designed to delay and finally deny
justice. But the truth, despite all the loopholes in the system, is otherwise.
The truth is that to a large extent those in charge of dispensing justice seem
to have lost direction and are helping to create excuses for those who deny
justice. Today there is an urgent need for a complete overhaul, in their
thinking, in their exposure to and their awareness of the realities of the
people who approach them. The courts are very quick to pass orders on issues
that concern a large number of people: maintenance of law and order, conditions
in jail, the need to conduct speedy trials. But judges are very conservative,
almost stingy when it comes to passing orders in individual cases.
While we get judgements about sexual harassment in the
workplace, child-friendly trials, appointments to certain key posts, felling of
trees, etc, individuals who seek the same from the courts never get what the
judgements promise. This macro justice remains only in theory. It gets worse for
women because of both a lack of understanding as well as a lack of empathy for
the distressed. This, added to the general vulnerability of the woman by the
time she chooses to go to court, makes her accept any suggestion made by the
court even if her primary purpose of going to court was to oppose that very
situation. There are rare occasions when a judge overreaches the hurdles in the
system and actually provides unimaginable utopian justice. But these are far too
few to even begin to make a dent.
Women’s efforts to reach out to the judiciary have not really
been effective for a variety of reasons. Perhaps it is time for judicial
introspection to measure the actual benefits to those women who approach the
courts for justice as against the perceived benefits to them. Perhaps this
introspection will get us judgements which do not say that getting kicked is not
cruelty.