“When a woman navigates through these processes of entering or engaging with the criminal justice system, the first entry itself is a barrier. Therefore, there is no chance that a majority of the women will approach the legal system to get any kind of relief.”
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ON February 23, the Centre for Women’s Rights [CFWR] at Jindal Global Law School, O.P. Jindal Global (Institution of Eminence Deemed to be University), held an inaugural webinar, as a first in a series of webinars on the theme – ‘Ear to the Ground’ which aims at examining the lived experiences and struggles of women in their engagements with the law. The webinar, titled Emerging Challenges on Women & Law in India, was a panel discussion with Apoorva Kaiwar, Regional Secretary, South Asia office, IndustriALL Global Union; Adv. Sandhya Raju, Founder and Managing Director of the Centre for Constitutional Rights Research and Advocacy; and Adv. Veena Gowda, a women’s rights lawyer, as panelists. The webinar was moderated by Prof. (Dr.) Saumya Uma, Director of CFWR and Professor at Jindal Global Law School.
This is the second part of a three-part series covering the webinar, and looks at Raju’s address. To view the first part, click here.
Saumya Uma (moderator):
I now call upon Sandhya Raju to speak about the emerging challenges for women in the area of criminal law.
Sandhya Raju:
Thank you Saumya. It has been a pleasure coming here and speaking among my colleagues. It has been a long time since we met, meeting them like this has been one treasure!
The traditional and the societal pressures which are on them, very often restricts them from seeking legal recourse. The common refrain is that the reputation of the family will go or that the family is going to disintegrate. If a woman ever approaches the police station for filing an FIR, she crosses the barrier of the “reputation pressure” which restrains her, and has gathered her courage.
When we talk about criminal law and the challenges that women face, many of the issues which we generally talk about women are issues relating to violence. And when we talk about violence, it is linked to criminal law invariably. At the first instance, when we talk about criminal law, it is about going to the police station, filing an FIR [first information report], which is the first step for initiating a criminal legal action. When we talk about challenges, a woman starts facing challenges from that particular instant. Registering an FIR is, in itself, a major barrier for women in accessing the legal system.
When we are students and learning criminal law, we are learning CrPC [Criminal Procedure Code], IPC [Indian Penal Code] and [Indian] Evidence Act, but we are not aware of ground realities. Sometimes we are so insensitive and ask the woman – “Why didn’t you go file an FIR? Why didn’t you go to the police station, you should have done that at the first instance!” Most often when women go to file an FIR at a police station, it is for issues relating to sexual harassment or domestic violence. Both are issues which are so close to their person. The traditional and the societal pressures which are on them, very often restricts them from seeking legal recourse. The common refrain is that the reputation of the family will go or that the family is going to disintegrate. If a woman ever approaches the police station for filing an FIR, she crosses the barrier of the “reputation pressure” which restrains her, and has gathered her courage.
Also read: First Information Reports (FIR): An explainer
Once she reaches the police station, the approach of the investigation officer who is recording her statement is casual, procedural and devoid of diligent work. Very often in domestic violence cases, women don’t even get a receipt for the complaint they have lodged. As an organization that is helping victims of domestic violence, we have had to wait for three or four hours at the police station because we have insisted that we wanted a receipt as proof. Imagine the barriers and the challenges that a woman faces when she interacts with the criminal procedure. Criminal procedure which is set up according to the Criminal Procedure Code, is very clear and says that if someone files a complaint, they have to be issued a receipt. There are many judicial decisions which lay down these guidelines.
It requires constant mental alertness to find out whether the chargesheet has been filed, whether the legal procedures are being followed and keep track of the court dates – and all of this when lay women do not even know the basic law on domestic violence.
Now, let us say she has crossed this barrier. If she gets the help of a lawyer, then good; but if she doesn’t (many of them do not have the assistance of a lawyer), they would go to the police station and tell them this is what happened. The police will be casual, and will not even register a proper complaint. The issue is that the complaint that the woman had given will actually be in the dustbin. The issue is that when a woman navigates through these processes of entering or engaging with the criminal justice system, the first entry itself is a barrier. Therefore, there is no chance that a majority of the women will approach the legal system to get any kind of relief. There exists a belief that no decent woman approaches the police station for filing a case. We need to look at these societal attitudes which prevent a woman from going to the police station to file an FIR.
Let us take the example of domestic violence – why does a woman go to the police station? So that she gets help against her husband who is assaulting her. What does the police do? Instead of taking action, the approach is to counsel her – “Why don’t you try to adjust?’, they ask. When the [Protection of Women from] Domestic Violence Act was enacted in 2005, the expectation was that when a woman approaches the police station for filing a complaint of domestic violence, she should be directed to the protection officer. But what is happening is that most of the police personnel do not even know about who is the protection officer. Instead of a protection officer, the police officers themselves start counselling the woman concerned or the drunk husband. The woman then feels that yes, he would not repeat the domestic violence, and she goes back home. But the fact is that the cycle repeats, and there is no stop to something like this. If it is sexual violence, then God forbid! The mere fact that the woman is coming to the police station to file an FIR means that she has made efforts in taking action against the person who has abused her or assaulted her. However, the attitude of the police officers acts as a barrier to her access to justice.
I will tell you two instances of cases that we are handling, both the women are from marginalized sections of the society, from the Dalit community. As Apoorva was talking about sexual harassment at workplace, both were sexually assaulted by their employers. One was by a company, one was by the owner of the house. Both were influential and were trying to coerce the women to settle the case. In one instance, it took almost three months for the wife to even tell the husband that she was assaulted by her employer. The husband only came to know after the employer started threatening to lodge a case against the women, and after she had stopped going to work. After she told her husband, he asked her to file the complaint. It took her almost three months. In the other case, the husband came to know about it and they went and filed a complaint immediately. In one case there was a delay in reporting, in the other case it was reported immediately. But, despite their statement, the police didn’t make any effort or refused to take/sieze the phones which would have the incriminating photographs of the women. They kept waiting for the police to do something, arrest the accused, but even after a year, the accused were not arrested or chargesheet filed. Nothing was done except that the FIR was lodged. We had to file a petition at the High Court saying that though FIR was lodged, no chargesheet had been filed. And that is when we got to know that both these cases were investigated and the police found them to be “false.”
Both the women continue to undergo the trauma of the violence that they faced, even a year after the incident. Due to the financial influence of the accused persons, the cases were completely overturned. We filed a protest petition in the lower court because we wished to pursue the case, but how many people will have the energy to do a follow up like this? It requires constant mental alertness to find out whether the chargesheet has been filed, whether the legal procedures are being followed and keep track of the court dates – and all of this when lay women do not even know the basic law on domestic violence. After a long time when they feel that nothing is happening in their case, they approach a lawyer who then tries to expedite the case. But again, a lawyer needs to be sensitive to them.
It is also not necessary that everyone has the financial capacity to take these cases up and actually follow them through. When they come to court, the court asks – “Why didn’t she lodge the complaint immediately?” The woman is going through trauma, and still trying to have a grip over the entire incident where someone has invaded her bodily privacy. She still hasn’t overcome the trauma, and the court asks her why she didn’t file the FIR in time. When the case ends up in an acquittal because of this, the woman is definitely even more demoralized. This is the ground reality.
We have another case where an eight–nine year girl child was sexually assaulted by three men. She didn’t tell her mother. The mother was busy with the marriage of the elder daughter, and this was the time when the child was assaulted. It was almost after a month that the mother came to know, and that too by accident. The mother immediately went to the police, an FIR was lodged, and an accused was arrested. The girl was also trying to gain more confidence in the meantime. She said that there were two more people who assaulted her. The mother informed the Child Welfare Committee, which, in turn, informed the police. It has been almost a year, and despite a magistrate recording her statement twice, there has been no move to arrest the other two accused.
The mother was ignorant of the law, and we say ignorance of law is no excuse; how was she to know what action has to be taken? And, in between, we had the police trying to dissuade them from actually proceeding with the case, and trying to portray the mother as someone who is scheming and trying to extract money from the accused.
The mother was ignorant of the law, and we say ignorance of law is no excuse; how was she to know what action has to be taken? And, in between, we had the police trying to dissuade them from actually proceeding with the case, and trying to portray the mother as someone who is scheming and trying to extract money from the accused. This is the ground reality we face, and these are the challenges we are looking at in criminal law.
Another recent case which has been talked about is the nun’s rape case against Bishop Franco Mulakkal. We have innumerable decisions of the Supreme Court which have laid down the principle that the sole testimony of the woman is valid if the witness is found to be credible. In this case, the nun, while she was testifying in court, was emotional and almost cried. She could not speak about it. And the judge could not believe her sole testimony? When we conduct legal awareness sessions, we encourage the participants to go to the court for grievance redressal, and assure them that if they testify honestly in court, the accused will be convicted. But, this case has completely overturned all expectations. How do we now tell lay women to approach the court with confidence? Now, we also have to create awareness around what kind of evidence can be used to substantiate the aggrieved woman’s statement.
These are the kinds of challenges, and issues faced. And all of this starts from the very first stage of filing an FIR till the end (conviction or acquittal). The woman has to transcend the attitudinal barriers of the police, judges, the prosecution and the defence lawyers. Most often, it is the version of the defence lawyer that is accepted more easily than the prosecution’s statement.
There is another case in which a woman actor was assaulted by another major actor who is the accused person, and she has been fighting the case. The trial judge is a woman, whom the aggrieved woman finds to be hostile. The entire atmosphere of the courtroom is hostile. There were around ten accused in that case, and when she testified in court, there were twenty male lawyers present. This was an in-camera trial. 20+ male lawyers were present from the accused’s side, waiting to hear the aggrieved woman’s testimony. The prosecution had only three or four lawyers, again all men. We talk about in-camera trials, we talk about trying to give a comfortable atmosphere for the victim to depose. But the entire purpose of the in-camera trial is defeated when the woman has to talk about her ordeal in the presence of 20-25 lawyers because there are ten accused. And this, with no female lawyer, even within her team of lawyers.
Even in the Bishop’s case, there were around ten lawyers for this one Bishop, and we had three lawyers for the aggrieved nun, including me. If I was not in the team, there would have been no female lawyer for the aggrieved nun. How is this woman going to feel? She is not going to feel comfortable at all! And these are aspects which we don’t think about. When we are talking about a gender sensitive environment, we have to address this issue. When we talk about sensitizing the judges, the lawyers, the systems, and there are innumerable sensitizing sessions being conducted, what are the nature and contents of such sensitization programmes? I am convinced that at some point or the other, a resistance to sensitization programmes has developed. This takes us several steps backward in our pursuit of gender justice in courts of law.
As lawyers, the challenge that we face is trying to balance, instead of surrendering to the patriarchal system. If the victim looks empowered enough or strong enough, the entire attitude sometimes changes. As lawyers, we have to try and balance, and see that our client does not feel guilty for who she is – for feeling confident, or because she is empowered enough to approach the court.
In domestic violence cases, we sometimes hear judges suggest that the woman settles the matter. This is the attitude. As lawyers, the challenge that we face is trying to balance, instead of surrendering to the patriarchal system. If the victim looks empowered enough or strong enough, the entire attitude sometimes changes. As lawyers, we have to try and balance, and see that our client does not feel guilty for who she is – for feeling confident, or because she is empowered enough to approach the court. There was a family law case in which the woman had been subjected to forcible anal intercourse. When we were arguing, the judge refused to believe that there can be anal intercourse. There are medical certificates which have been produced, but the court refused to believe the woman. This is the kind of insensitivity that we face within the legal system. We are constantly trying to counter patriarchal systems, navigate the legal system and the aggrieved women’s narratives, with sensitivity, so that women get justice.
Moderator’s comments:
Thank you so much Sandhya. I think you highlighted so many aspects that act as barriers in women’s pursuit of justice in criminal law. You talked about attitudinal barriers of the actors within the criminal legal system – the judges, the prosecution, the defense lawyers, the police; also about the institutional bias and influential accused persons and how they manage to use the criminal law and processes to their advantage.
Your last point was very interesting where you talked about how you try to balance between patriarchal expectations of a victim within the criminal legal system and helping clients not to feel guilty for being confident. This reminds me of something that one of our friends – Adv. Vasudha Nagaraj – had said long ago and it stayed with me, where she said that “as a feminist lawyer, I face dilemmas in court. The court wants the perfect victim, who will look shattered and harassed, who will not be confident and yet as a feminist lawyer, I want to my client to feel confident, I want her to be empowered and all the time it is like being torn between what is the expectation and what I as a feminist lawyer wish to do, in accordance with my principles.”
Thank you once again Sandhya, for sharing your thoughts and experiences.
(Transcription by Navami Krishnamurthy and Payal Mangla, students of Jindal Global Law School)
The next parts will contain coverage of the address by Gowda as well as the Q&A session with all three speakers.
