August-September 2009 
Year 16    No.143
Women's Rights


Gender injustice  

There is an urgent need for judicial introspection to measure the actual benefits to those women who approach the courts for justice as against the perceived benefits to them

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.

(Aparna Bhat is an advocate, Supreme Court of India.)

Note: Names have been deliberately omitted to protect the identities of the persons concerned. However, all the case studies mentioned in this article are actual cases that have been heard by various courts in India.


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