Updated: Jan 19
The Law occupies a novel position in postcolonial societies. While it retains the character of the instrument of the colonizer, on the one hand, thereby perpetuating oppression and marginalization, it schizophrenically also fuels the promise of transformation of a highly unjust and unequal society. It thus acts as a double-edged sword- for the emancipation of and justice for, the marginalized on the one hand, and for the reinforcement and institutionalization of privilege and hierarchies on the other.
The Indian Constitution, itself the product of the death of a colonial state and the birth of a modern one, was drafted with a vision of transformation, to establish a State that guarantees justice to its citizens. The upliftment and mainstreaming of women was core to this task of transformation. For this reason, the Constitution held out the promise of equality between sexes under Art.14. Art.15, confirmed that this was a promise of substantive equality, protecting legislation meant to overcome pre-existing disadvantages faced by women. The Indian Constitution also recognized that the guarantee of rights and justice is incomplete without a guarantee of redressing its violations. Therefore, Arts.32 and 226- the right to judicial remedies- enshrined the right of citizens to access justice when it is denied. While these legally operate to correct wrongs perpetrated by the state to the rights of the citizens, the state also separately provides mechanisms to the citizens to access the official state system for protection against private wrongs.
However, the structure of judicial remedies has proved to be often insufficient to serve the needs of women in accessing justice. For this machinery presumes that those who avail it have knowledge about their rights, the material resources and time to pursue legal remedies,[i] and the opportunities to access the state system. The specific location of women within the private sphere, where their status in society is intricately linked to their status in the home, the injustice and violence perpetrated upon them get shrouded with dense silence. The material dependence of women upon the male patriarchs within the family alienates the resources, time and opportunity for them to truly access justice. The public perception of the character of women, fraught with flawed essentializing and stereotyping tendencies makes the state entirely unresponsive to the calls of women for justice and dignity.
It is at this juncture that Indian law reveals its nature as a postcolonial legal system, struggling in its role of emancipation and oppression of women at the same time. The Constitutional guarantee of substantive equality would imply not only that women should be provided with avenues of judicial redressal, but also that they should be enabled to access it. Unfortunately, alongside these Constitutional guarantees reside laws and perceptions that overtly and covertly discriminate against women, reinforce patriarchy and inhibit their access to justice.
The mandate of ensuring access to justice for women, therefore, is fundamental to the crusade of women empowerment and emancipation, to secure their fundamental rights and the guarantee of dignity. Alongside efforts at social, economic and political mainstreaming of women must also lie the endeavour of legal mainstreaming, i.e., of bringing women into the folds of the judicial system.
It was in the same vein that Justice M. Jagannadha Rao, former Chairperson of the Law Commission of India noted: [ii]
The words ‘access to justice’ immediately stir up in our mind the idea that every person who seeks justice must be provided with the requisite monies to approach a Court of Justice. But, that is not the only meaning of these words. They also refer to the nature of different rights, to the number of Courts, to the quality of justice, to the independence of the Judges who man the Courts, to legal aid and public interest litigation and so on.
Justice Rao correctly adverts that access to justice extends beyond solely the availability of material resources. Access to justice also includes the bundle of rights that is granted to women, and to the size, composition and character of the judicial system. Policies attempting to overcome sex discrimination and secure greater access to justice for women, therefore, must target two dimensions of the law. The first is ‘the justice chain’, which refers to ‘the series of steps that a woman has to take to access the formal justice system or to claim her rights.’[iii] Reforming the justice chain should be motivated by the need to eliminate the threshold barriers that prevent women from reaching formal judicial mechanisms. The second is the substantive barriers to justice. Here, justice is imagined as a substantive normative value affecting the content of laws, and the rights they confer upon women, and not merely the roadmap to the judicial system. This impacts not the process of accessing the judicial systems, but the outcome of the judicial process. Access to justice here turns into a pursuit of the substantive legal recognition of the rights of women and implementing them within the legal system.
This paper proceeds in two parts. The first analyses the threshold barriers that women face in accessing the legal system to obtain justice. The second analyses the substantive barriers to justice due to the inability of the law to respond to the specific situation of women within the rights framework.
THE JUSTICE CHAIN AND THRESHOLD BARRIERS
Justice YK Sabharwal correctly identifies that if ‘justice’ is identified as a bundle of rights within the modern nation-state, then access to justice must be secured through machinery that makes these rights actually justifiable.[iv] However, hindrances in attempts at prosecuting those rights often render the rights themselves nugatory. For this reason, the Law Commission of India, in the 189th Report acknowledged that access to justice is a fundamental human right. [v]
Lord Woolf, in his iconic Access to Justice a report in UK in 1995, identified 8 principles that a judicial system should meet to make justice accessible. These are: (a) be just in the results it delivers; (b) be fair in the way it treats litigants; (c) offer appropriate procedures at a reasonable cost; (d) deal with cases with reasonable speed; (e) be understandable to those who use it; (f) be responsive to the needs of those who use it; (g) provide as much certainty as the nature of particular cases allows; and (h) be effective: adequately resourced and organised.[vi]
These principles advert not only to procedural reforms that make litigation speedier and less expensive but also to the need to respond to the substantive location, character and choices of the citizen. This is important to mainstream the particular needs and experiences of women, which raise specific demands for the construction of a responsive model for access to justice. This section analyses, in this light, the general causes of marginalization from the justice of women as a group, and the specific causes that raise demands on the legal system to be more gender-sensitive as well. First, the impact of illiteracy, poverty and ignorance of women to access justice is discussed, along with existing models and other innovations that may be devised to tackle them. Second, structural disabilities faced by women due to legal policies and mindsets of officials within the state system are discussed. Third, this section looks at the efficacy and desirability of alternative dispute resolution mechanisms in making justice more accessible to women.
Poverty, Illiteracy, Ignorance
The lack of access to justice is most commonly attributed to illiteracy, ignorance and poverty. While poverty impacts the material resources that a litigant has to pursue legal remedies in courts, ignorance and illiteracy prevent her from even knowing that the wrongs done to her are justiciable. Women, lying at the intersection of poverty and gender-based discrimination, face a twin disadvantage. While the high costs associated with litigation, compounded by their protracted length, debar persons from accessing courts generally, women suffer more since they already do not enjoy control over financial and other resources within the family. In this manner, poverty cripples not only the ability of women to access justice but also their agency, since the eventual decision to pursue legal remedies lies with the male head of the family.
For this reason, Art.39A of the Constitution assumes significance. Located in Part IV on the Directive Principles of State Policy, Art.39A obligates the State to make endeavours to provide legal services to those who are unable to access it. In pursuance of this, the Legal Services Authorities Act, 1987 was passed. This aspires to overcome the financial disabilities of women (and other groups) in accessing courts and the judicial system, by making them eligible for legal aid, irrespective of their economic status.[vii] This Act arose largely in response to the observations of the Supreme Court in the case of Hussainara Khatoon v. the State of Bihar, [viii] where free legal aid and the speedy trial was elevated to the status of a fundamental right.
“[T]here can be no doubt that speedy trial, and by speedy trial, we mean reasonably the expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21…legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possible eventuality.”
This was not the first time that free legal aid was declared as a fundamental right under Art.21, as an essential component of the ‘just, fair and reasonable’ standard. Previously, Suk Das v. Union Territory of Arunachal Pradesh, [ix] and M.H. Hoskot v. State of Maharashtra [x] had held to the same effect.[xi]
In practice, this legal aid is fraught with its own difficulties. The funds earmarked for this purpose are not always sufficient and are also not released easily and efficiently. This is compounded by the ignorance of several women of this provision. This calls for a revision in not only the legal aid provisions of the law but also in the court fee structures and other expenses associated with litigation. For instance, women are not required to pay any court fee in maintenance suits in the state of Maharashtra, while this requirement still exists in most other states. The absurdity of asking a woman who is seeking maintenance to pay a court fee is evident on the face itself.
For criminal offences, following the model of rehabilitative justice, states have been encouraged to pass rehabilitation schemes for victims of rape. The Supreme Court in the case of Delhi Domestic Working Women’s Forum v. Union of India directed the governments to formulate Rape Victim Compensation Schemes and a Criminal Injuries Compensation Board, which would provide not only compensation to the victims but also defray expenses for prosecution.[xii] S.357A was introduced in the Criminal Procedure Code in 2009, much beyond the 6-month time limit imposed by the Supreme Court in the Domestic Working Women’s Forum case. This provision obligates State Governments to prepare schemes for the victim compensation in consultation with the Central Government, in pursuance of which, 21 states have passed these schemes by 2013, while 7 have still not. All Union Territories have introduced these schemes. [xiii] Pertinently, access to these funds is not contingent on the outcome of conviction in the criminal trial, in recognition by the state that the investigative and judicial machinery may not always deliver justice, but the day-to-day life of the woman need not suffer further as a result of these inefficiencies. However, these schemes are plagued by a marked disparity in the amount of compensation that is made available to victims of rape, ranging from Rs.20,000 to Rs.5 lakhs.
Recently, the Department of Justice has also attempted to obliterate impediments of lack of information and knowledge by its two-phase Project on Access to Justice for the Marginalized People, supported by the UNDP. Included within the project are programmes to spread legal literacy, undertaken through the special training of volunteers, the National and State Legal Services Authorities etc. [xvi] Independently of formal, state-run legal literacy programmes, various NGOs and Law Schools have long been involved in this endeavour. The constitution of this Committee marks an important point to assess and re-assess strategies and policy interventions by which women can be made legally literate, and thereby empowered. The Protection of Women from Domestic Violence Act, 2006 exhibits another strategy of raising legal awareness among women to make justice accessible, which is to obligate the state itself to take measures to widely publicize the legislation and its contents. In an age of multifarious modes of communication, the television and radio can act as formidable allies in this cause.
While illiteracy, ignorance and poverty plague all groups affected by it to access justice generally, there are some specific barriers to justice that attach to the position of women qua women. The gender insensitivity of lawmakers, police personnel and decision-makers contribute to reinforcing the expectation of silence around the atrocities committed upon women, and further hamper their access to state institutions to seek justice against these atrocities.
Most women, and every organization working in the field of women’s rights, has encountered the adamant refusal of the police to register FIRs in cases of crimes against women. Indian law has recently provided two responses to this problem. The first lies in the Criminal Law Amendment Act, 2013, which states that reporting of information on sexual offences needs to be video graphed and that no prior sanction is required to prosecute public officials (which includes police officers as well) who refuse to take down the FIR. The second lies in the recent Supreme Court judgment in the case of Lalita Kumari v. Government of UP,[xv] which held that the Police cannot refuse to file an FIR.
However, this has no impact on the several institutional mechanisms that the state has instated to prevent the filing of an FIR in matrimonial and family cases. Often, women approaching the formal state mechanism to complain against cruelty, violence and dowry demands are put through a compulsory mediation process, such as in the Delhi Special Police Unit for Women and Children. The Courts, too, undermine the seriousness of marital cruelty, violence and offences, and direct the parties to compulsory mediation. These attempts at conciliation and mediation sometimes succeed in intimidating the harassers into meeting the requests of the women complainants. More often, however, these processes do nothing to balance the power inequalities existing between the husband and the wife, such that the outcome compromises the interests of the woman and does little to deter the violence since the mediators themselves have a biased mindset.
The Family Courts Act pursues the strategy of systematic disempowerment of women by dispensing with the right to legal representation. Viewing legal counsel only as troublemakers due to their emphasis on the rights that the law grants to women, the Family Courts Act neglects the role lawyers play in levelling the playing field for women in their battle for rights.
Most of these measures are driven by the misperception that the family unit and marriage needs to be preserved and that women tend to misuse the laws that are created for their benefit. While the emphasis on preservation of the family unit inevitably compromises the rights and safety of women, there is no empirical support for the stance that misuse is actually as great a problem as it is perceived. In fact, most cases of crimes against women are not reported, either to save the marriage and the family or because the woman herself needs to face the stigma.
These misperceptions contribute to a lax attitude of police personnel in treating crimes against women with the seriousness that it merits, such that policepersons often sympathise with the perpetrators. For this reason, the investigation into dowry demands and dowry deaths, marital cruelty and bride-burning, honour crimes are not carried out properly, characterising them as ‘internal family matters’. While police reforms and gender-sensitization are strategies that need to be adopted, this Committee may also deliberate on the desirability of introducing Standard Operating Procedures in the investigation of such crimes, such that there is little scope for individual discretion in the investigation process. The Police must recognise that the location of these crimes within the four walls of the home and the sanctimonious precincts of the family implies that there will be scant independent corroborative evidence and that therefore they must follow a more enlightened investigation procedure. State actors need to take stock of the institutionalized silence surrounding crimes against women, instead of treating them in the same manner as they would any other crime in the public sphere.
Alternative Dispute Resolution Mechanisms
The problems that mediation and conciliation mechanisms are fraught with should not necessarily be a ground for dismissing them outrightly. The adversarial form of dispute resolution that the formal court systems adopt is often perceived as undesirable by women themselves. This is because entering a space of adversity against a family or a community on which the woman heavily relies and often has strong bonds as well places the woman between a rock and a hard place. Due to their localization and objective of conciliation, women often find it preferable to elect informal remedies than opt for an adversarial right-based adjudication by the courts. This conciliatory tactic serves the needs of those women who do not seek to put their familial relationships under threat but only want the harassment to end.
The legal system also greatly encourages ADR mechanisms for dispute resolution. The impetus came from the Justice Bhagwati Committee Report, which brought indigenous and local systems of dispute resolution back into focus.[xvi] The state, towards this end, has set up Lok Adalats, Nyaya panchayats, Mahila courts, court-annexed mediation and conciliation centres. The Hindu Marriage Act and the Special Marriages Act specifically provide for attempts at reconciliation in case of disputes within the family, as does the Family Courts Act.[xvii]
The culture of ADR is also encouraged by local community bodies and NGOs, enabling the resolution of conflict for those for whom the journey to courts is indeed a long one. ADR created by women’s NGOs has often demonstrated considerable success, even where a run by the local community and the state have failed. For instance, Shariah courts run by the Bharatiya Muslim Mahila Andolan give the space for women lying at the intersection of a minority religious identity (Muslim) and gender to resolve family and matrimonial disputes in a manner that lets them assert their rights as a woman belonging to a minority community simultaneously.
Marc Gallanter and Jayanth Krishnan, however, have analysed extensively how ADR mechanisms such as Nyaya panchayats and Lok Adalats are neither cost-efficient, nor speedy, and hardly the paragons of success they are often touted to be.[xviii] The experience of women opting into ADR also spins a narrative of disempowerment- that ADR mechanisms do not play the role of empowerment of the parties involved, and instead, the focus is on reaching a ‘compromise’. As a result, women often complain of being coerced into settlements and not at all being satisfied with the results. The problem is exacerbated when compromises are forced onto women who are suffering from domestic violence and cruelty when in other parts of the world, mediation in these circumstances is considered unethical due to the compromised bargaining position of women in the process.[xix]
This Committee, therefore, needs to devise mechanisms by which ADR is encouraged, albeit in a manner that promotes the empowerment of women within the home and the community eliminate coercion and pressure and is infused with gender sensitivity.
Perceiving access to justice as only a roadmap to reach formal systems of dispute resolution would be to cast the corridors of the judicial system as the culmination and end-point of the struggle for women’s rights. The judiciary and other means of dispute resolution can only be a way by which the rights of women are recognized, validated and secured. The objective of the entire process, therefore, is a life of dignity and self-determination, free from violence and discrimination.
For this reason, law reforms attempting to secure access to justice must also ensure that justice- that is, a life of dignity and self-determination- is actually secured. Lord Woolf correctly characterized the ‘just’ outcomes of the judicial process as the top-most priority in the Access to Justice Reforms of 1995 in the United Kingdom. This would require not only that women can actually enter the judicial process, but also that they are granted substantive rights through the content of the laws in order to secure a life of social, economic and domestic justice.
The fundamental feminist critique of patriarchal decision-making is its emphasis on (mostly upper class) male experiences, by which the conduct of the entire population is judged, while systematically neglecting the ‘world’ of women. For instance, the law of Evidence is predicated on certain epistemological assumptions. These are three-fold: that past events occur independently of human knowledge of them; that it is possible in principle to attain present knowledge about past events; and that the accumulation of evidence and derivation of rational inferences from that evidence is a correct method of achieving such knowledge.[xx]
This fails to acknowledge that knowledge and ‘truth’ do not, actually, exist a priori and that the processes of discovering them are controlled by men. These ill-founded assumptions of the law significantly impaired the capacity of women to prove violence within the home in Courts. Due to the codes of ‘secrecy’ and notion of ‘privacy’, the only witnesses to such violence were the perpetrators themselves. In response to this, the Indian legislature amended the Indian Evidence Act and the Indian Penal Code, stating that in cases of deaths within 7 years of marriage, which were immediately preceded by demands for dowry, will be presumed to be dowry deaths. The burden of proof would then be on the accused to disprove this allegation. While the Legislature took many strides forward in mainstreaming the experiences of women within the legal system, the Judiciary took strides backwards. In a spate of judicial decisions, it held that the scope of the term “immediately before” does not include demands of dowry made even 2 days before the death of the woman.
The recent Criminal Law (Amendment) Act, 2013, though with its own major flaws have also conceded some ground to view the law through the eyes of women by criminalizing stalking and ‘eve-teasing. Though it is too early to comment on the shape that these laws will take when actually applied by the Courts, there is already some backlash in courtrooms, with accused and their counsel claiming that the new rape laws are excessively harsh and that that harshness should be mitigated through other means.
The most significant lapse of the Criminal Law (Amendment) Act, 2013 is its continued protection of marital rape. There is no greater symbol of the impecunious violence within the private sphere, and the state’s sanction of it, than Exception 2 to S.375, IPC. The other location of such defence of the private against the values of equality and justice of the ‘public’ is the personal laws, which continue to treat sons and daughters, men and women in a highly discriminatory manner, continually excluding them from inheritance.
The Sexual Harassment at the Workplace Act envisions a radical change in the contours of the workplace, which is the classically patriarchal domain of Men, rampant with overt and covert discrimination and exclusion. The act attempts to create an inclusive and congenial atmosphere for women by punishing any form of sexual overtures or advances, which may tend to harass the woman. At the same time, the Act, unlike any other legislation, has a specific provision for punishment of false cases, which deters and casts a chilling effect on even those women who have genuine complaints but are legitimately fearful of the backlash.
There are several other sites for struggles for women’s rights within the legal and judicial system. Foremost among them is the distortion of the Protection of Women from Domestic Violence Act, 2005. The Act intended to protect women from all forms of violence perpetrated upon them within the family and granted them a civil remedy to simultaneously prevent neglect and destitution. One of the most remarkable achievements of this law is its protection of ‘relationships in the nature of marriage’. This phrase was originally intended to refer to live-in relationships, in recognition that there are several relationships in rural and urban areas both where marriage may not actually be solemnised, or maybe solemnised inadequately, and that such relationships should not be denied protection under the law solely because of the technical form that it takes. A regressive reading of this provision has not only set this progressive legislation back, but also disgracefully labelled women in such relationships as ‘concubines’ and ‘keeps’.[xxi]
Judicial interpretations of the legislation have also imposed a threshold bar on impleading relatives of the husband, who may not live in the same house as the wife, in complaints on domestic violence,[xxii]in utter neglect of social realities, as per which both families continue to exert significant control and influence over the couple long after the marriage, and are themselves responsible for perpetrating violence and harassment.
Rape trials are fraught with problems of the perception of ‘consent’ and appropriate sexual conduct of women. Despite the prohibition on admitting prior sexual history of rape victims, lawyers continue to cite them and judges continue to base the adjudication of rape cases upon them, unjustly penalising women who do not fit into the stereotypical mould of chastity and restraint.
These provisions merely illustrate and do not exhaust the several ways in which the Indian legal system continues to alienate substantive justice for women. The pursuit of justice will only be complete once the substantive content of these laws is addressed. While the struggle to change mindsets is indeed a long one, one way by which these discriminatory legal provisions can be overcome is by ensuring a truly democratic form of governance. The need for increased representation of women in the Parliament and the Judiciary cannot be overemphasised. The participation of women in the decision-making process will not only enable self-determination of the class of women within the country but also infuse decision-making with sensitivity.
This paper canvassed two ways in which access to justice is denied to women: first, procedural hurdles which prevent women from making use of state services for judicial resolution. These may be on account of social structures and hierarchy which disable access to external authorities (such as the woman’s material dependence on men), or due to the non-responsive nature of the judicial system itself, or even due to the prejudices of personnel that man these state services. Specifically, the paper analysed three broad themes in this section: the impact of poverty, illiteracy and ignorance on alienating access to justice, and methods by which this can be overcome, systemic barriers and ADR mechanisms. A need was felt to not only uphold the fundamental right to free legal aid and judicial services but also ensure that dispute redressal processes fulfil the function of empowerment of women. Second, the substantive content of laws and their interpretation was analysed to examine the manner in which the legal system does not accord full rights and dignity to women, thereby alienating them from social, economic and domestic justice. Through an illustrative analysis of such provisions, the need for a democratic decision-making process was felt, with greater participation from women at all levels- in the legislatures as well as the judiciary. True access to justice can only be ensured if the faith of women can be preserved in the institutions of justice. This cannot be attained without addressing both substantive and procedural concerns.
[i] Partners for Law and Development, National Conference on Women & Access to Justice: A Report, 2006 at 7.
[ii] Justice MJ Rao, Access to Justice, available at <http://www.lawcom.govt.nz/sites/default/files/speeches/2004/04/India%20Law%20Commission%20paper.pdf>, last accessed on 10 December 2013.
[iii]UN Women, Progress of the World’s Women: In Pursuit of Justice, 2011-12, at 11.
[iv]J YK Sabharwal, “Access to Justice: Role of Law and Legal Institutions in the Alleviation of Poverty and Deprivation”, Inaugural Address delivered at the Golden Jubilee Regional Seminar of Indian Law Institute, Cuttack, on 9 September 2006.
[v] Law Commission of India, 189th Report on Revision of Court Fee Structure, February 2004.
[vi]Lord Woolf’s Access to Justice Report, 1995, available at <http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/overview.htm>, last accessed on 10 December 2013.
[vii] S.12, Legal Services Authorities Act, 1987; Law Commission of India, 189th Report on Revision of Court Fee Structure, February 2004.
[viii] (1980) 1 SCC 81.
[ix](1986) 2 SCC 401
[x](1978) 3 SCC 544.
[xi]Supra note 2.
[xii] (1995) 1 SCC 14.
[xiii] Figures based on unpublished independent research conducted by the researcher herself.
[xiv] Department of Justice, Ministry of Law, Government of India, Project on Access to Justice for Marginalized People.
[xv] WP (Crl.) No.68 of 2008, delivered on November 12, 2013.
[xvi] Department of Legal Affairs, Justice & Company Affairs, Ministry of Law, Government of India, Report of The Expert Committee on Legal Aid—Processual Justice to the People, 1973.
[xvii]A. Malhotra and R. Malhotra, “Alternative Dispute Resolution in Indian Family Law- Realities, Practicalities and Necessities”, available at <>.
[xviii]M. Galanter and JK Krishnan, “Bread for the Poor: Access to Justice and the Rights of the Needy in India”, 55 Hastings Law Journal 789 (2004).
[xix]K. Fischer et al,“The Culture of Battering and the Role of Mediation in Domestic Violence Cases”,46(5) SMU Law Review 2117 (1993).
[xx]P. Murphy, MURPHY ON EVIDENCE, 9thedn., OUP 2005at 3.
[xxi]D. Velusamy v. Patchaiammal, (2010) 10 SCC 469; Indra Sarma v. VK Sarma, Supreme Court of India, Crl. Appeal No.2009 of 2013.
[xxii]Hima Chugh v. Pritam Ashok Sadaphule, 2013CriLJ2182.