Indira Jaising: What Stops Indian Courts from Delivering #Justice to #Women?
(Additional Solicitor General of India)
I write to lodge my strong protest against the comments made by the Judge [Kirubakaran] to the effect that women are responsible for crimes against them. The clear inference is that women would be well advised to stay at home to avoid being raped.
It is the primary duty of all courts to eliminate all forms of discrimination, bias and prejudice against women. No amount of Fast Track Courts and Special Courts will deliver justice to women, if those who hold the high office of a Judge of the High Court hold and express such male chauvinistic views.
Of all the promises made in the [Indian] 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 [Indian] 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.
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?
[It is because we in India] women and men, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgments.
[Judges] 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 [with a promotion] by being appointed to the High Court.
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 demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws.
It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgments 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.
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
ABOUT THE AUTHOR
Indira Jaising is the Additional Solicitor General of India. The above are excerpts from a letter of protest she sent in August 2013 to the Chief Justice of India, P Sathasivam, to bring attention to Judges who pass gender biased comments and judgments in Indian courts, as well as an excerpt from an earlier article by her ‘Blind to what, Your Honour?’ in The Times of India, on the same issue.