India’s Judiciary is facing criticism over remarks made by the Chief Justice of India in a sexual rape case hearing.
As per NCRB report 32,032 rapes were reported in 2019 (88 incidents a day) – to deal with these increasing crimes against women, Gender Sensitivity among Judicial members is a pre-requisite.
Need for Gender sensitivity in Judiciary
- · Increasing gender violence: Reported rape cases have increased by 88% in the past decade. 4 lakh cases of crimes against women were reported in 2019.
- · Patriarchal mindset of Indian society at large: Judges are part of our society; hence this mindset creates a bias in their approach to gender sensitive cases.
- · Varied approaches towards Gender crimes: While few treats marital rape as a crime, many don’t. Few allow the accused to pay compensation to the victim to go free. Few questions the victim’s character, when allegations of rape are raised.
- · Societal strata & myths extend into Judiciary: Indian society’s caste system, class system, pre-conceived notion of the elderly not committing crime, chastity as a condition, societal norm of wives living with in-law’s creep into rulings of Judiciary.
- · Psychological trauma of the victims: Having a panel of male Judges enquiring a case makes the women litigants feel intimidated. Challenges in having a Gender sensitive Judiciary
- · Protective approach of Judiciary: Women are considered weak, vulnerable and hence courts adopted a protective approach. This brings in formal equality rather than substantive equality. This creates hurdle to develop a gender-just jurisprudence.
- · Role of negotiator to hide public shame and stigma: Instances of Judiciary mediating between parties to transform the accused into a brother by tying Rakhi to the victim highlights the Judiciary’s failure in challenging such gender stereotypes.
- · Less number of Women Judges: Currently, Supreme court has only 2 women judges (against overall count of 34), Only 7.2% of Judge Strength in High Courts compose of women. India has never had a women CJI.
Lack of women Judges questions the Judiciary’s legitimacy as a representative of the societies.
- · Bare provisions of IPC: Sector 375 of IPC lays down bare provisions for what constitutes rape per se, with no details about after-rape victimology. These lead Judges to question on the nature of behaviour of women post-rape. This is a continuation of gender orthodoxy, on which IPC provides no clarity.
- · Faulty notion of low conviction: Dowry cases, under Section 498A, faces low conviction rate (at 18% in 2016) – stating this as a reason, automatic arrests were stalled with setting up of a Family Welfare Committee. This is despite Section 498A being non-bailable, noncompoundable and cognizable in nature.
Way forward
- · Gender diverse bench: Empirical studies show that having even one woman on a threeJudge panel has an effect on the entire panel’s decision-making in gender sensitive cases.
- Having women Judges encourage more women to approach the system to report violence and crimes happening on a daily basis.
- · Women of Diverse backgrounds: Studies show that personal values, experiences and many other non-legal factors influence judicial decisions. Supreme Court has not had a single Dalit woman Judge so far!
- · Broader outlook of Gender crimes: Justice J.S. Verma Committee, had said that rape should be viewed not as an infringement of a woman’s chastity but a violation of her bodily integrity and sexual autonomy. This autonomy cannot be permanently lost by entering into marriage. Rape remains rape irrespective of the relationship.
- · Independent Judicial Appointments Commission: This can ensure appointment of diverse social group-based Judge, breaking the Glass Ceiling existing for women.
- · Judicial Activism: Vishaka guidelines has been significant step by Judiciary – on similar lines, Judiciary must up the ante to create a gender-friendly jurisprudence. It should also act as role model for the entire society in its approach to confront the root cause of gender crimes.
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