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#5196, 30 November 2016

IPCS Discussion

Equality, Equity, Inclusion: Indian Laws & India’s Women

The Institute of Peace and Conflict Studies in the seventh interaction under the aegis of its Twentieth Anniversary Plenum Series, hosted Ms. Lalitha Kumaramangalam, Chairperson, National Commission for Women, who spoke on ‘Equality, Equity, Inclusion; Indian Laws & India’s Women’.
The interaction was held on Friday, 11 November 2016, at the IPCS Conference Room in New Delhi, and was moderated by Ms. Indira Jaising, Senior Advocate, Supreme Court of India. 

Indira Jaising
Senior Advocate, Supreme Court of India

Ladies and gentlemen, thank you very much for being here. On behalf of the IPCS, I extend a very warm welcome to Ms. Lalitha Kumaramangalam Ms. Kumaramangalam needs no introduction. She has been performing a critically important role in her capacity as the chairperson of the National Commission for Women (NCW), intervening whenever a problem has arisen. Ms. Kumaramangalam has extensive experience working towards the empowerment and advancement of women belonging to the vulnerable and under-privileged sections of society. She has worked on issues dealing with healthcare, HIV/AIDS prevention and has worked with the disempowered communities like truckers, sex-workers, the LGBT community, migrant and construction workers, SHGs and urban slum women. 

Ms. Kumaramangalam holds a Master's degree in Business Administration from Madras University and has graduated with honours in Economics from St. Stephen’s College, New Delhi.
I would now like to invite Ms. Kumaramangalam to address us. 

Lalitha Kumaramangalam
Chairperson, National Commission for Women

I thank you Madam for your very kind words.
Today as we talk about equality, equity and inclusion, in my point of view, we can cross out all the three given the situation in India today. Undoubtedly, we have some very strong laws on paper, but from my experience, in the last two years in particular, I have found that the implementation of these laws is subject to their interpretation, which is essentially biased in nature. This has much to do with the fact that we have very few female judges in the country, especially in the High Court and the Supreme Court of India. 

Statistically, they constitute less than 11 per cent of the total number of High Court and Supreme Court judges in the country, a number that is also much lower than the percentage of female members of parliament. A lot of the present situation has also to do with the fact that the existing judges are extremely gender-biased. Only last month, we witnessed a very biased judgement given by a two judge bench in the Supreme Court that allows a husband to file for divorce if his wife does not want to live in a joint family. We at the NCW are still trying to figure whether we should file a revision petition because the petition goes back to the same bench, or if we should look for other ways to counter this. Otherwise, this might become a huge problem, whereby any man can file for a divorce on such grounds. This is how I look at the concept of equality.

The concept of equity in this country insofar as women are concerned just does not seem to exist. It has to be pointed out that equal opportunity for women does not necessarily say that men and women are equal. This is a sort of fallacy that is being built up that says men and women are not equal and therefore there cannot be equal rules for the two. The other cry that has come is that women are misusing the law. The latter is a very difficult argument to believe because to be honest, a majority of women in this country do not even know the law. This is true even for me. Before I joined the NCW, all the laws that I knew dealt only with the communities that I was working with. My knowledge of all the other kinds of laws that existed in the country, constitutional or otherwise, was pretty limited. 

The fact is that even successful working women have limited knowledge about laws that exist on issues such as sexual harassment at the workplace and are therefore, majorly unequipped to point out its flaws or make suggestions for amendments. Their limited knowledge on laws such as the Maternity Benefits Act, 1961, which provides for a six month maternity leave to pregnant women, allows their bosses to circumvent the law and lay them off citing reasons such as their inefficiency and unpunctuality. There is another issue that Ms. Jaising also talks about in her recent article, Blind to what, Your Honour?, concerning how most of our laws are retrospective in nature, i.e. they are in place as a measure to put out a fire. They tend to address things that are already happening. 

If we look at the law against sexual harassment at workplaces, we find that in most of the cases the Internal Complaints Committees (ICC) are never set up. Even in the cases where they are, they normally comprise people junior to the ones who are committing the sexual harassment. Hence, in the event of an enquiry, almost nobody is found willing to come out and speak against a boss. As per the present law, only one outsider needs to be a member of the ICC, so the complaints committees packed with juniors from the same establishment are unable or unwilling to furnish proofs in majority of the cases. 

In the sexual harassment case filed against Rajendra Kumar Pachauri, we witnessed that despite the levelling of serious charges against him, RK Pachauri was still allowed to continue as the TERI chief for a while. It took sometime before the issue came out in the public domain and action was taken against him. The matter is sub-judice. While Pachauri has been replaced as the TERI Chief, we are yet to see how justice will be meted out in this particular case.
Talking about inclusion, I would like to narrate my experience in Chennai, where, in a conversation with Justice Sanjay Kishan Kaul, I raised the issue of women's participation in the judiciary. Justice Kaul very rightly pointed out that to increase the number of women in the judiciary, it was important for more young women to start practicing law and join the bar. We need more women at both the High Court and Supreme Court levels. He said surprisingly in all the exams of the lower judiciary, in Delhi, nearly 75 per cent of the successful candidates are women. In Justice Kaul’s view, many of the judgements relating to women passed at the lower judiciary in Delhi are more rational and far better thought out than those made at the High Court and Supreme Court levels.

Our judicial system is a man’s club. The recent judgement that we discussed, in view of some, could be a version of what the particular judge felt in terms of his personal version of what a woman’s duty is towards her marriage. In India, the question of marital rape does not even arise. It is very difficult for people to understand the concept of consent.
Inclusion in the legal profession has probably gone up but not significantly. The court judgements are hardly inclusive in nature. Women have to fight for everything. Take for instance the issue of Triple Talaq. Why is it being turned into a Uniform Civil Code issue? According to me, the civil code argument is merely an excuse. Women who came to us with the demand were very clear that Triple Talaq cannot be abolished across the table through negotiation or through appealing to any man’s humanity. They were also very clear that it is the religious clergy or the maulvis who seem to be ones determined to block this.

The concept of equality before the law deals with equal protection by law. The male versus female argument has degenerated into how women are misusing the law. This might be true for a few cases where women know the law and have the money to hire the lawyers, but a majority of women do not have access to lawyers, have limited knowledge about their rights guaranteed by the constitution and lack the courage to sit in the police station or before the court, where they are treated like absolute untouchables. 

Generally, women in want of judgement come across the reality that they are judged even before they are given any sort of hearing in the first place. Today, the NCW has placed trained councillors in the cells that deal with the cases related to violence against women in 11 districts in Delhi. We have started a programme called ‘Mahila Jan Sunvayi’ where we sit with the police and the complainants of the particular area. This was started in Delhi because the second largest number of complaints in such cases was received from Delhi and most of these were related to instances of domestic violence and property issues. However, in most cases, we realised that the programme needed the presence of male councillors for it to be effective.  The following incident is an example of why this is a requirement. 

In cases of domestic violence, the man in question is also to be called to the police station. In one such incident that involved a mother and her son, the son entered into a heated argument with me during the hearing of the case, in the presence of a woman ACP. Eventually, the Joint Commissioner was called upon. In the presence of a man, however, the man in question quickly calmed down. It was then that the Joint Commissioner suggested the need for us to include male counsellors for the initiative to be effective in practice.

This issue does not only concern the men. It also has a lot to do with the mentality of most women who believe very strongly in their ‘sense of duty’ and the concept of ‘lakshman rekha’, i.e. the archetypal Indian woman who has to be timid and stupid. Most women in India are looked at as a wife or a daughter or a daughter-in-law, but never as an individual. We need to get over the idea that all sorts of activism around women’s rights claim equality to men. The activism demands equal opportunity and equal chance in terms of access to life, nutrition, education, training, jobs, etc. I do not think we can get very far with the idea of equality and equity. The argument that says men and women are not equal can be turned down by saying that no two human beings are in fact equal. It is not just about the equality of the sexes. It is about gender neutrality. In India, very few people can appreciate the difference between the two concepts. It is also true for the rest of the world. Look at the recently held US elections. Many people are of the opinion that one of the many reasons why Hillary Clinton was not voted into power was because she is a woman, even though she is a white woman.

From every prism that one is looked at, one is not looked at as an individual, or as a contributing member of a society. The distinction between a man and a woman should not make any difference, but it is made practise. It is exactly the same when it comes to our laws. Some of our laws are pretty good, if they are actually implemented properly, if women understood the laws and understood their rights. The laws per se are not bad; it is the implementation proess that is flawed. 

The following case is an example of this problem:

A few days ago, I met a 16 year old girl from Bihar in my office. She was a victim of a gang-rape that had taken place in broad daylight. After being raped by a boy, the girl was then dragged out of her house and was gang-raped by his family and friends for filing a case against him. The barrel of a gun was also forced into her genitalia. There were many people who had witnessed the entire episode and were willing to bear witness for the same in the court. However, the medical report from the hospital did not confirm the rape. Even after repeated calls to the District Magistrate as well as the doctors involved, the hospital authorities refused to address the gap in the medical report. In the absence of a medical report confirming rape, it was difficult for authorities to take further steps. Thus even though we have the strictest possible laws on rape, the implementation of such laws becomes very difficult for the lack of credible evidence.

The law is strict, but the subversion of evidence and the lack of witnesses jeopardises the case. 

Another recent instance of this was when we had gone to Kerala regarding the Jisha murder case. When I was taken to the site of the murder, I realised that the site of the crime was left unprotected, and access to the site was not forbidden. People were allowed to walk in and out. The Superintendent of Police (SP) even confessed to me that the case was compromised from the very beginning. Eventually, an immigrant was caught and made an accused in the case. But to my belief, I do not think he was the one who had in fact committed the murder. The real accused in the case may never be found. From what we could gather about the case and from the looks of it, it probably was a murder disguised to look as a rape. 
In this country, as long as people continue to think of women as second class human beings or citizens, I do not think the question of equity or equality arises. While we are equal before the law, there is very little equality when the law is implemented.

When the NCW supported the ban on Triple Talaq, many senior lawyers said that there already existed a law on the issue. What was left out of the discussion was the fact that in the process of seeking a divorce, Muslim women have to go to court three times: for divorce; for maintenance; and then for custody. All other personal laws, including Hindu and Christian laws, are codified, which means that for women belonging to these sections, only one visit to the court is enough. Muslim women in our country are amongst the least educated and generally have no access to property or money. In any case women own only 2 per cent of the property. Going to court [legal processes] is a very exhaustive process, requiring both mental and physical energy. The psychological costs of it are not calculated. There are also very minimal facilitating circumstances that encourage women to even seek justice. Most women do not complain and they would rather come to a compromise than seek a trial or insist on an FIR in a domestic abuse case. 

Violence against women is therefore, not merely physical in this country. Even the regional bias against the women from the Northeast Indian states is most evident in our police system. After having spent thirty-six years in Tamil Nadu, I thought the north is far more gender biased than the south, but after hearing the complaints that come to me from the south, I realise that maybe it is just a different kind of gender bias. We have a large number of honour killings in the south. 

When I went to Dindigul in Tamil Nadu, I met the SP of the area who pointed out that the provision of Habeas Corpus posed major problems for the resolution of cases involving honour killings. Habeas Corpus in legal terms means 'produce the body'. In one such case, a young girl who had eloped with a boy was brought home and killed. Her body was burned using petrol and not a shred of evidence was available. In the absence of a body, a case then usually falls flat and in this case only circumstantial evidence could be used. 

In India, the attitude is that men are the superior race, and we do not teach our boys to respect women. So all the talk of gender neutrality, gender equality, training, skilling, orientation of the police etc. will be of no use unless a very deep rooted change takes place; and without this change, irrespective of whatever laws we may bring in, gender equity/equality/inclusion will not be a reality too soon.

Ms. Indira Jaising
Senior Advocate, Supreme Court of India

Thank you very much. I think it was an experience-based presentation and that is the best kind that you can have. There is nothing like explaining a concept using real life examples. However, a few things need elucidation. It has to be pointed out that those who have knowledge of law also have knowledge of how to break it and get away with it. 

In the law itself there are many exceptions. The heart of the law is in its interpretation. The constitution guarantees that you will be treated equally before the law. It is a question of how you enable people to be equal. Law enforcement agencies are required to implement the law. They have the discretionary powers that can be used in an arbitrary manner. This is where the non-implementation lies. All that is expected from the professional on the table is to report facts correctly. You will find that laws get very strongly implemented when it comes to disenfranchised people, but in case of the rich and the wealthy, the implementation process is very shoddy. There is an evident connection between power, hierarchy and sexual harassment. In the judiciary, there is no internal complaints committee for judges. This has led to many women dropping out from their jobs and this needs to be stopped. It is a case of word against word, but judges have to understand that a woman can tell the difference between an innocent and a sexually coloured gesture. 

The situation we are facing in this country is appalling for women judges in this country. Women are not given the opportunity that they deserve, leading them to drop out of courts. Where is the choice, I ask. The battle is of course very difficult. The barrier of prejudice is very high in the judiciary. But I choose to battle it out.

I do not think families can be trained towards gender sensitisation. Education for everyone in the family is very important. In many ways education broadens your perspective and that is probably the only thing that could eventually lead to some sort of a change. That said, I do not think there is any westernised educated country where women are completely equal to men.  I do not think there is any country in the world where women are considered equal to men.

Having a female chief minister does not automatically mean or ensure equality or strength of women. In fact, also, sometimes, women themselves impose patriarchy. Additionally, we have to remember that a very small pool of women have become chief ministers in India. Politics is a very male dominated club. However, in panchayats, where we actually have reservation, 53 per cent of panchayat pradhans in India are women. However, women are not trained in administration in this country. It is more a question of equal opportunity in politics and judiciary. Just having a woman chief minister does not quite ensure gender neutrality. Unless you fight against what you think is wrong, there will never be any sort of justice in this world. 

We need to read about what is going on in different parts of the world and ask why we cannot have that in India. Make a noise. Be aggressive and ask for your rights. The moment you give up, it means you have accepted the status quo.
Rapporteured by Niharika Tagotra, Research Intern, IPCS 

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