India ranked first among issues of sexual slavery, violence, abuse, as per Thomson Reuters research. We often point out Afghan’s religious persecution, Syria’s prolonged battle histories and Somalia’s lack of governance over four decades, at length, and forget about our own going backs on the matters of personal liberty and gender justice.
The Indian Judiciary, a sovereign and prime preserver of the lives of 138 crores people, has been criticised for a lack of timely hearings of habeas corpus petitions and rejection of bail grants overruling the High Court’s orders. Figures have no truth to them since Bihar, Jharkhand, and Uttar Pradesh have reported only 0.5% of complaints of sexual violence.
Despite the adaption of Article 15(3) of the Indian Constitution, Dowry and Domestic Violence Prohibition Acts, Vishakha guidelines’ formation and Criminal Law and Triple Talaq Amendments, social conditions remain the same. No normative changes have been able to bring social reforms. Believe it or not, the law is not a major regulating factor of society nor is it consumed on the plates of every household.
Go-Backs On Matters Of Gender Justice
Early reforms for women empowerment brought by the High Court and Supreme Court put forth the protective approach or the doctrine of sameness instead of substantive equality, where men and women are different but not inferior to each other and promote differential treatment. On July 9, 2019, the Delhi High Court gave ambiguous judgment in the case of Anita Suresh v Union of India, wherein a working woman filed a complaint of sexual harassment against an employee of her workplace.
After years of pendency, the Courts concluded that the case, in the name of lack of evidence, was a false complaint by the woman, and charged her with a fine. The High Court ignored the fact that the nonpresence of witnesses doesn’t mean fake allegations and took no notice of Section 14 of the POSH Act.
Another such contrary opinion clash was seen in 2010, when a liberal opinionated Justice Markandey Katju termed the second wife as a mistress who had no maintenance claiming rights. In 2011, Judge Gyan Sudha Mishra took over the reign and gave allowance to the deserted wifes’ maintenance rights irrespective of the validity of the marriage.
The case of Prakash v Phulavati represented the judgment conflicts and questioned the judiciary’s definite powers. Under this case, the retrospective nature of women’s coparcenary rights under the Hindu Succession Act was challenged. Again, the HC responded here in a positive tone, whereas, the SC gave dissenting ruling towards it and commented on the discriminating nature of the Muslim Personal Law, which sounds like a matter of judicial overreach.
In the Narendra vs K Meena (2016) case, a Hindu wife was willing to live with her husband but not in-laws. The bench of Justice Dave and Nageshwar Rao favoured her as it is a matter of her choice, whereas, on the other side, the SC quashed this order and upheld that in India, people generally do not subscribe to the Western thought whereupon getting married or attaining majority, the sons get separated from the family.
In normal circumstances without justifiable reason, a wife is expected to be with the family of the husband after the marriage as an ‘integral part’ of the family. In Muslim law, the husband must give his wife a separate house and if not a house, then a separate door so she doesn’t bump into her in-law if they are not on good terms.
And if we go as per the apex court’s views and accept a wife as an integral part of the family, then why not make her a coparcenary in the family property as well?
Under the bench of Justice Adarsh Goyal and UU Lalit in the case of Rajesh Sharma vs State of Uttar Pradesh, Section 489 of the IPC was in question regarding the punishment of cruelty. In this case of dowry, the courts supported the in-laws and not the tortured woman by stating, ‘No urgent arrest under such cases’ and demanded the formation of a family welfare committee in cities accompanied by proper evaluation and then FIR. Didn’t these rules sound like protecting the accused against a woman?
Under the infamous case of Hadiya, a 24-year-old woman who decided to get married as per choice was labelled vulnerable, weak and indecisive by the Courts. Even the executives and legislators are not way behind in this run. Don’t you think how challenging it would be for the government that abrogated Article 370 within seconds to pass a 33% Women’s Reservation Bill in Parliament to promote equity?
The way we are dealing with these cases over a long period says that we are compromising with the hard-earned independent agency of women.
The Nagpur Bench of the Bombay High Court once stated, ‘Rape convict can benefit if he agrees to pay rupees 1 lakh to the victim’. Since the survivor was poor, she accepted the money. Sounds like a blood-money concept, right? And a license to rape women with lakhs in the pocket.
Another strange order by the Madras High Court stated, ‘Divorcees should also mean sexual purity to claim alimony.’ Here, the Courts had taken away the woman’s freedom of choice and applied the same discipline over divorcees as during the subsistence of marriage. Doesn’t the judgment drag down women’s bodies merely to sex objects?
In one case of the said nature, the Madras High Court ordered bail to the accused so that he can mediate with the survivor. Later, the Supreme Court intervened and cancelled it.
In the case of the triple divorce as well, the term ‘Gender Justice’ has been used nine times during the pleadings, whereas the judgment did not represent any of its elements while striking it down. The only grounds courts narrated for its invalidity are — it is not given in Islam, and second, Justice Rohinton found it arbitrary.
India asks for slow reforms in the system so that they can be accepted more by society. But that never means hypocrisy will be regulated. The law lacks broader and open grounds, especially the female experience of life at large. And if you think that admitting more women to the high judiciary will work on it, then that can be a point but not an absolute solution.
As per solutions, in terms of judicial judgments, there is one interesting and ongoing project in America in which its apex court is rewriting all its age-old judgments via a feminist perspective.