Fighting For Justice In the Patriarchal Courts


Advocate Dr Shalu Nigam

Last few days witnessed the pronouncement of several significant celebrated judgements by the courts in the cases relating to right to privacy[1], triple talaq[2], and sentencing of 20-years life term to a self-proclaimed Godman who raped women[3]. All these three cases, somehow uphold people’s trust in courts as the custodian of rule of law. Even otherwise, in normal parlance in India, courts are considered as a temple of justice as well as the custodian of constitutional values by the common people. Court room is a space where domination and oppression is challenged and social as well as economic and political justice is facilitated. The prime duty of the court, hence,is to uphold the spirit of the constitution, the rights of people and the rule of law.In fact, the democratic society places a high value on the independence of judiciary. However, often, deeply embedded in the layered, hierarchical, patriarchal society, the courts, most of the times, reiterate and reinforce masculine values and androcentric morals while ignoring the fact that their prime concern is to disburse justice as per the constitutional and legal provisions. Patriarchy exhibits itself in various forms day in and day out in the courtrooms. The discrimination exists not only in the terms of the number of men and women who get to rule in the higher echelon of judiciary, but biases also exist in various forms in the everyday practice in the courtrooms. Patriarchal, male-dominated courts often act hostile to women’s concerns. The analysis of everyday proceedings in the misogynist court rooms reveals the manner in which sexism operates and is reinforced, post-mortemed and reiterated in daily decisions, orders, conversation, jest, reasoning and assumptions based on ideology that subjugate women despite of the fact that the Constitution of India guarantees affirmative provisions in favour of women. Nevertheless, the women who gather courage to fight for justice against such oppressive culture in these patriarchal courtrooms may gain small triumph in some form or the other because of the support they may receive from several quarters and above all because of their persistence and sheer grit[4]. It is not because the courtrooms suddenly become sympathetic or sensitive to women’s concerns or questions, rather it is the resilience of these women who persist in their struggle, and therefore they could smash patriarchy that exists within the courts and within the society. This piece of work examines the manner in which the patriarchy operates in the court rooms and the manner in which women are trying to overcome such male-dominated, conservative,traditional regressive notions in the courtrooms.

Part 1

Can Courtrooms be Equated as Temples of Justice?

Simply not. Courts are the interpreters and implementers of law as well as the constitutional values[5]. Ideally, court rooms are spaces where justice is facilitated as per the rule of law and domination and oppression is challenged. The spaces in the courtroom therefore preferably and mandatorily should be democratic, egalitarian, transparent and participatory. Courtrooms essentially are enablers as well as facilitators of justice to the victims. However, in practice, this is not happening. Courtrooms are neither litigant friendly nor they provide justice to the victims or the complainants. A litigant who knocks the doors of the court expect that s/he will receive justice and may hope to seek relief for the legal wrong. Yet, in reality, the courtrooms work in a typical bureaucratic, insensitiveand autocratic manner where the judge may presume himself or herself as onedoling out justice to the needy and may proceed in a stereotypical manner while considering himself or herself in a superior position as a `giver’ indulging in a beneficence act[6]. Further, the strict discipline enforced in the courtrooms, the typical hostile and masculine environment, the legal and procedural tenacity maintained by the court staff clubbed with the complexities of adversarial system of justice act to daunt the women complainants to seek justice.

Are Courtrooms Concerned About Justice?

Courtrooms consist mainly of judges, lawyers, litigants, police and the court staff where everyone has a purpose. This purpose is to adjudicate the legal issue and provide justice and relief to the litigants. A litigant may have faced an ordeal or an injury or a hurt prior to approaching the court which s/he is seeking relief and redressal of his or her grievance. Thus, in order to address such complicated subjective emotional situation, a litigant as a complainant makes a request to the court through his or her lawyer or through police in the criminal matter, to examine the issues. A lawyer, though a friend of the court, in an adversarial system seeks his or her own triumph and want to have a favourable decision for the client. The judge is duty bound to filter the complaint through the legal web of procedures, technicalities and complexities in an objective manner. More specifically, in an adversarial system, the task of delivering justice becomes more complicated for a judge because s/he has to adjudicate and pronounce the order on the basis of relevant information, evidences and documents produced before him or her. Ideally, a judge is considered to be a neutral, fair, non-biased impartial person, yet, as a human being a judge may has his or her own subjectivities, understanding, ideology and perhaps a set of biases. The process of seeking and delivering justice therefore involves sorting out a complex emotional, psychological and social mesh consisting of human emotions, subjectivities, clashing egos, hopes, injury, hurt, fear, loss, scars and triumph, in an objective manner.A litigant is therefore requesting a subjective court to examine his or her individual subjective matter with the objectivity and rationality of the law where a judge uses his or her own subjective prism to adjudicate.

Further, the adversarial system of delivering justice is not victim centric and often does not compulsorily provide for rehabilitation or recompense to the victims[7]. Winning or losing the case is the prime motive for any litigant as a party in the adversarial system because the system is built to see the issue of the complainant as a dispute rather than as an issue of social or legal wrong or as a matter of injustice. The decision pronounced by the court therefore favours one party and is often against another, when two parties are involved in a legal disagreement. Rather than viewing the legal wrong as a matter of injustice, the courtrooms reduce the concerns of the litigants as technical matters.The courtrooms as the implementers of the laws act as valiant guardians of law and not as a protector of the rights of the victims. The entire system is built around laws and legal processes. A victim has been granted little roles or rights in the entire process. More specifically, in the criminal law, the culprits or the accused persons are correctly granted with various rights ranging from ensuring fair and proper trial, to right to engage a lawyer, right against self-incrimination, right to seek bail, and range of other protections. However, for victims no such remedies exist to seek justice. There are many cases where the police get hold of a wrong person and may wrongly charge him with the offence and once this person is acquitted, the police or the legal system is hardly held accountable to get hold of the real culprit and punish him or her for the wrong done to the victim. And, in many criminal cases the real culprits are hardly being caught and punished. The real culprit thus may enjoy impunity because s/he is aware that’s/ he will never be caught in case police has implicated a wrong person and has taken legal action against him or her. The remedy of providing compensation to the victims is also rarely evoked. Further, the persons who may have got wrongly caught by the clutches of law have been languishing in the prisons, and at times, in horrible conditions[8]. Therefore, the system is complex and complicated and is blindly built around technicalities of laws rather than being concerned about providing justice to the victims.

Additionally, courts are places where ego clashes took place on ongoing continuous basis between various stakeholders – judges, advocates and litigants. The struggle continues within the corridors of power and also within the androcentric masculine domain of the courtrooms. The judge being in dominant position and higher pedestal, both physically and otherwise shows his or her authority in various ways which, at times, is challenged by the lawyers who may consider themselves as professional experts in dealing with legal technicalities. It is the litigant, who in adversarial system lacks power once he or she sets the wheel rolling by making a complaint. This may be because, a litigant lacks awareness of complex legal technicalities or the lacks the knowledge about complex legal language used in the courtrooms. Though courtrooms are created for the purpose of delivering justice to litigants yet, the litigant is seen as one who is at the receiving end in the entire system. The judges and the lawyers occupy the central position within the courtroom rather than acting as the service providers. Their subjectivities influence the process. The process, approach and environment of the courtrooms are not litigant friendly. The daily nitty gritty, bureaucratic procedures and technicalities observed in the court rooms further create trouble for litigants who may lack legal knowledge or awareness and may hamper the smooth process of law. The black and white rules of law, are clouted with the shades of the subjectivities exhibited by different actors and the outcome or the decisions of the courts are determined by various factors apart from the legal rules.

Also, courtrooms are not the neutral spaces in true sense havetheir own biases and subjectivities.As an organic dynamic entity, the courtroom has its own persona. As bureaucratic places, courtrooms are not free from biases[9], corruption, nepotism and other such forms of various problems[10]. Rather, class, gender, caste and other biases operate in a hidden manner. Often, the courtrooms use the prism of rigid official bureaucratic lens to address the matter, and in the process of providing socio-legal solutions or justice to the complainants became the autocrat, tyrant and anarchic upholders of the regressive morals and traditions of the society. Rather than using the legal tenets to approach the legal problems, the courtrooms use the subjective, moral, traditional, regressive, patriarchal lens to address the matters. More specifically, when the concern relates to women, the courtrooms mostly act as the moral guardians and the custodians of patriarchal values rather that as upholders of the rule of law or justice.Effort is made to preserve order and morality and women’s rights are sacrificed in the process. Often, the rationality, the logic, the judicial or the legal principles are not followed in such cases where a woman is the subject or a litigant. Courtrooms do not see women as individual citizens with autonomy or independence. Rather, the claim of a woman litigant is viewed with reference to her social background context and is embedded in the web of relationship as somebody’s daughter, wife, mother or sister which never happens in a case a man makes a complaint. Similarly, the litigants from poor and marginalized communities may face different set of problems when the background of litigant is examined in the courtroom because the courtrooms do not view the claims of individual litigant as a neutral citizen. Rather such claims are often examined in the light of the circumstances and other facts.

Rich Litigant Poor Litigant

The situation is more difficult for the litigant who hails from poor families and hardly have access to resources to fight the complicated legal battles continuously for years. Those coming from marginalized communities hardly are in position to avail or hire satisfactory legal services. The quality legal aid services are barely available despite of provisions being made in the law[11]. More the resources a person has, the more powerful position s/he occupies in terms of hiring better legal help. The divide between haves’ andhave-nots’ is clearly visible in the courtrooms where the axis of power is located not only in legal knowledge but also on terms of access to quality legal services. A poor litigant,often is dependent either on legal aid support or at the mercy of influential lawyers whereas the rich litigant may hire the services of a large legal firm depending on his or her capacity to afford such services[12]. The rich, resourceful litigants have more access to justice as well as space than those who are from the marginalized groups[13]. Courtrooms, hence, operate differently for the rich[14]. Poor hardly are provided spaces in the courtrooms. The oppressive hostile working environment of the court further marginalize those coming from subaltern communities. Often, the voices of the oppressed groups are silenced in the process which favours rich and resourceful[15]. And when it comes to dealing with the concerns of women, the situation becomes more vulnerable because the regressive patriarchal mindset and approach operates to further discriminate against women. Not only in terms of numbers, or access, women who reach to the courtrooms as lawyers, judges or litigants are less.Also, fewer women receive justice.

Part 2

Men Dominated Patriarchal Courtrooms

The court rooms ideally must operate neutrally without any biases however, this is not happening. Theunfairness is clearly visible in terms of number of men and women who occupy the courtrooms. A glance inside a court room will reveal that men dominates inside as well as outside the courtrooms. The courtrooms are hence not the neutral’ or theequal’ spaces and rather venerate and perpetuate masculine ideology. From the judge to the clerical staff, and from the advocates to the litigants, it is mostly the males who occupy dominance in terms of numbers. Miniscule number of women judges could be found in the courtrooms and their number reduces further as one moves from lower judiciary to the higher courts.It is very recently that the Kerala’s merit list for selection of Munsif Magistrates in Kerala judicial service that women outnumbered men[16]. The Supreme Court currently having one female judge out of 27 positions of judges[17]. Out of 229 judges appointed at the level of the Supreme Court till 2015, only six were women. The representation of women amongst High Court judges is about 10.86%, as per the submission made by Minister for Law and Justice, the Lok Sabha[18].Similarly, in terms of number of advocates, females are less in numbers as compared to the male counterparts. Further, several cases of sexual harassment of women advocates have come to limelight[19].  Also, as per the data[20] available, only 10.27 percent women file cases in the courts. Thus, merely in terms of statistics, a far less number of women have physical access to the courts, or in other words, courtrooms are accessible to only a few women.

Why only a few Women could Reach the Courts?

Either the Courts are inaccessible or less accessible to women or it may be said that the women do not utilize the legal system as much as compared to men. Or it may be that the stereotypical, biased attitude of the society prevent a large number of women to reach within the ambit of the court premises.Even with those who are aware of the legal procedures are not reaching the courts as compared to number of men who may find the access to courtrooms easier. The analysis of cases by the women scholars and researchers has shown that the women hardly get justice in the courts[21]. The traditional conservative notions about the `good women’ who are obedient, compliant, docile and do not question the norms is still prevalent within and outside the courtrooms that prevent many women to seek justice using the legal system[22].The backlash against women-friendly law is yet another reason that obstruct the women’s access and the path to justice.

The petition[23] filed by the Supreme Court Women Lawyer Association to include more women in the High Court and Supreme Court as Judges and arguments raised by women lawyer was not taken seriously by the Chief Justice of India[24]. The paternalistic attitude of those patriarchs within and outside the courtrooms hinder many women to negotiate for the justice. This biased attitude is also reflected recently in the five judges constitutional bench created to adjudicate on the matter of validity of thetriple talaq where the men from different religions were gathered to rule on the significant issue that is related to women’s rights rather than choosing a woman judge to adjudicate on the matter relating to dignity of women’ andgender equality’[25].  Further, though the 395 pages long judgement[26] pronounced recently by this five Bench judges on majority basis by the ratio of 3:2 ruled that the Triple Talaq (Talaq-e-biddat) is unconstitutional, yet the ruling failed to ensure that mechanism to implement such provision at the ground level needs to be strengthened and could not see that any male dominated religion which is made by men and implemented by men have hardly provide space to women’s concerns.

Also, it may be added here that though the Hindu law relating to marriage and divorce has been amended in 1955 yet at the ground level its implementation is disheartening as many women have to struggle hard and end up fighting long battles relating to divorce, custody and alimony. Further, the Hindu Law has not provided for equal division of matrimonial property between husband and wife in the case of divorce. Also, for abandoned women there is no remedy in the law[27]. Similarly, the same Supreme Court which a few days back shows it regressive attitude while adjudicating on the matter of Hadiya (Akhila)[28] suddenly becomes sympathetic to the concern of divorced Muslim women while deciding the Triple Talaq matter. It may be because of the fact that the Triple Talaq matter has gained much wider media publicity or is it because of political vested interest and ideology that has pushed for a favorable decision is a question that could be raised in a politically charged situation where majoritarianism prevails and the climate of hatred for minority communities is prevalent, where ideologies are playing a greater role than the concern for law and justice for women.

Courtrooms Use the Patriarchal Lens to Adjudicate the Matters

The women critics of the law have analysed the plethora of case law to indicate the manner in which the patriarchal biases reflect in the decisions concerning relating to women’s concerns from colonial period to the present times. Several research studies and case law analysis have shown that the courts often act as conservative traditional institutions and consider themselves as guardian of traditional conservative ideology rather than the protectors of the Constitutional values. Discriminatory practices continued to operate within the legal system since the colonial era despite of the fact that the women’s movement in India has highlighted the same and took action in several cases[29]. The case of Rukmabai illustrates the manner in which the judge in the colonial times while using the pristine moral past and the logic of native customs while upholding patriarchal values decided the case of a young woman who refused to join the company of her husband then[30].  Similarly, in 1890, when Phulmonee, a young child bride of ten years when raped by her husband the patriarchal court without questioning the husband or examining the barbaric custom exonerated the accused because the colonial rulers did not want to meddle the native customs for the reasons of political expediency[31]. The similar logic that operates during the imperial rule continue to exist today in the independent India. The morals, the values, the principles that enchained women then remained till now because the political freedom for women could not be translated into reality in the free nation. In actual practice, men got freedom in 1947 but women could not. More specifically, the conservative traditions, the regressive notions and the social restrictions continue to bind the women when men got the political freedom from the colonial rule. The Constitution makers never made an attempt to discriminate against women but the implementers of the same Constitution continued to operate with the regressive, sexist and misogynist mindset and approach of the colonial rulers. The symbols of freedom for women thus remain on paper and it is rarely that the principles of equality, liberty, dignity and justice of women could be translated into reality.

For instance, the Madras High Court upheld the role of woman as a home maker and a housewife when the electricity board appealed against a decision where the lower court has granted compensation to the husband where his wife died of electrocution contending that she was a housewife with no source of income[32]. The Court stated that “She wasn’t only a dutiful wife & an affectionate mother of her two children, but also she was the finance minister of her family, she was the chef, she was the chartered accountant of the family, maintaining the income & expenses. The husband lost the company of his wife, the children lost their mother & her love & affection.” The masculine misogynist authority in the court deals the complaint of the husband of the complainant who died because of electrocution with a sympathetic approach against electricity board. However, in most of the cases when a woman approaches the same courtroom, her complaint is dealt with patriarchal lens as a wife, mother or a daughter. Therefore, while adjudicating on maintenance cases, the court often fails to see this aspect of invisible work women engage themselves in, and deny women of their rightful claims.

Similarly, in many cases, the court granted the bail to rapist as he agreed to marry the victim and ruled that he may be set free in case the victim agrees.  Such decisions have been pronounced by khap panchayats,jati panchayatsand such similar local authorities, however, today, the constitutional courts are pronouncing such decisions without any legal reasoning[33]. Compromises in the rape cases is becoming a trend and in many cases, it has been reported that the police often force the victim to marry the rapist rather than registering FIR against the accused. Can the non-compoundable offence be compounded because the police and the judges think so that it is a right decision to let the culprit be free? Can the victims be denied justice because the rapists agree to marry them? Though the Supreme Court in the matter of State of MP v Madan Lal[34]ruled out mediation in rape cases yet the patriarchal language used by the Court was hardly based on legal reasoning or defending the constitutional, legal or human right of the survivor as a citizen, rather the language was guided by the stereotypes and the conservative notions of chastity, honour, reputation and dignity.

The Kerala High Court while dismissingthe petition filed by a student[35]of second year of undergraduate course who was dismissed from her college because she eloped with a boy held that “This is not a mere case of falling in love; but two students taking the drastic step of eloping and living together without even contracting a marriage. As consenting adults, they could definitely act according to their volition. But, here they could not have even legally entered into a marriage. When taking such drastic step for the sake of love, as adults, they should also be ready to face the consequences. The Management’s concern of setting an example to the other students and ensuring maintenance of discipline in the educational institution cannot be easily brushed aside”. The court thus upheld the prevailing moralistic dogma relating to live-in relationships while impinging on the fundamental rights of consenting adults and denying women the right to choose or autonomy.

In the case of abortion of 10-year-old rape victim which came before the Supreme Court recently, the court rejected the petition while stating that “In view of the recommendation by the medical board which is satisfied that it is neither in the interest of girl child or the live fetus which is 32-week-old to order abortion, we decline the prayer”. The child was allegedly raped by her uncle continuously over a period of time[36]. The case once again pointed out to the lack of access of medical care facilities and the essential debate of law versus morality and more over the debate which needs to obtain a fine balance between the rights of women relating to reproductive choices and the rising incidences of sex crimes[37]. In this matter, the right to meaningful life also entails her dignity, her intimate choices, her right to childhood and education of the minor besides her health and pain free life. In many such cases which were presented before different high courts, different decisions have been delivered by the courts considering the specific circumstances and facts[38]. Yet, the courts in most of the cases do not utilize the yardstick of a survivor’s right to justice and often use moral parameters to adjudicate on such cases.

The Supreme Court bench while exercising parens patriae jurisdiction in a recent case while deciding in a matter where a 24-year-old Hindu girl Akhila (Hadiya), a medical graduate married a Muslim man and the said marriage is contested by her parents, the Court ordered the National Investigation Agency, NIA, a premier anti-terror investigation agency to examine the matter. The marriage was described as spurious `love jihad’[39] while legitimizing and officially recognizing the language of the right-wing group which uses this term to alleged Islamist strategy of converting Hindu women through seduction, marriage or threat. No efforts were made to find out the wishes of the girl as in the opinion of the Court the girl who is professional is too weak and vulnerable and could be exploited by the radical organization.  The Court was of view that the custody of the 24-year educated girl should vest with her parents and the decision about her marriage should also be taken by the active involvement of her parents. In one stroke, the court took away the fundamentally guaranteed liberty, dignity and the autonomy of a woman to take decision about her own body, her right to choose a person she intends to marry, her life, her right to choose and practice religion of her choice while humiliating her and denying her, her fundamental rights. Similar to decisions taken by the khap panchayatswhere in many cases women were killed for honour because they transgressed the social norms when they marry a person outside their caste communities, the Supreme Court decided to curtail the freedom of an adult woman who constitutionally as well as legally has the right to choose a person whom she can marry. The judiciary, thus itself violated and breached the fundamental sacrosanct non-negotiable rights of a woman citizen because of the ill-researched, insane and illogical notions propounded by the Hindu right wing extremist group. The authoritarian orthodox courts hailed patriarchal notions of honour crime while becoming unwarranted and uncalled-forcustodian of an adult independent woman while negating the idea of diverse, plural, tolerant country visualized by the Constitution makers.

In Narendra v. K Meena[40], the Supreme Court while propagating the family ideology held that separating a Hindu husband from his family amounts to `cruelty’ without recognizing the fact that a Hindu girl who is separated from her natal family at the time of marriage,too has moral or legal obligations towards her natal family.  In S. Hanumantha Rao v S Ramani[41], the apex Court adjudicated on the wife’s unwillingness to wear mangalsutrato be treated as an evidence of mental cruelty. Such custodial torture within the four walls of the home are neglected and rather upheld by the courts for the sake of preserving the tradition and culture. The family and relationships are given importance above the concept of the rights the justice. The patriarchal courtrooms, thus, set boundaries to limit the autonomy, dignity and freedom of a woman and decides her place in a society, control her body and mind, regulate her sexual being, her interaction and her relationships including controlling her womb and her desires determining each and every step of her life from being an unmarried girl, to a wife, to a mother. The courts routinely disrespect women’s being, infantilize the female citizens and use the relationship matrix to adjudicate the women’s claims. As the kangaroo courts, these courts uphold the popular culture and traditional norms rather than upholding constitutional values.

On the issue of the marital rape too, the courts as well as the government in most of the cases[42] have followed regressive approach[43]. Lately, in a matter before the Supreme Court, the Center defended the provisions under Section 375 (2) that permits a man to rape his legally wedded wife even if her age is less than 17 years and the Court agreed that as Parliament has extensively debated on this issue, therefore marital rape cannot be considered as a criminal offence[44]. In consonance with the traditional regressive ideology of glorifying motherhood and preserving the institution of family, the court failed to see the fact that a person below the 18 years of age is a minor and any such attempt to legitimize the rape of a such a child for the sake of protecting the institution of marriage will have a detrimental impact of health of the child. The Child Marriage Prevention and Redressal Act recognizes that marrying a girl below 18 years of age is invalid, yet while ignoring these provisions the court legitimized the rape of the minors while upholding the sanctity of marriage[45]. In other words, the Court upheld child marriage which is “actually a `solemnized invasion’ of a girl, her bodily integrity, her sexuality and her mind.”[46]The Protection of Children from Sexual Offence Act 2012 contradicts provisions as laid down under the Penal Code. Thus, legally, there is no uniformity in the defining the age of consent and different legislation prescribe different ages. Such approach systematically pushes back women’s rights and liberties while upholding the institution of marriage and undermining women’s rights as citizens.The notion of controlling sexuality of women guides such decisions. The issue of consent was not raised while adjudicating and the focus was laid on child wives and consensual elopement and sex by minors while ignoring the aspects of women’s bodies, mind, agency or autonomy. The bodily integrity and dignity of women are sacrificed at the altar of preserving the institution of marriage and upholding the patriarchal structures of power.

Recently, in Rajesh v State of UP the two judges bench of the Supreme Court without looking into the reasons of inserting Section 498A in the IPC and without examining the ground realities or referring to any research concluded that the lawis misused by vengeful’ women and see men as victims of thiscruel law’. The patriarchal court took anti-woman stance where the male judges expressed their anguish and in emotional outrage pronounced that this law is abused and therefore suggested all measures to further dilute the law. The paternalist Court sees women through stereotypical lens and branded them as disgruntled women’ who arevengeful’, gold diggers’ andliars’ while doubting the veracity of the complainants. The Court refused to look into the data available on dowry death, women’s suicide, violence against women, or the profile of the people actually lodged into the jails under Section 498A of IPC, neither does it look into the manner in which this law is implemented at the ground level through the already available paraphernalia and mechanism consisting of Crime Against Women Cells, Counselling centers, Family Courts or Mahila Courts where counselling is done mandatorily and guidelines have been laid down to arrest the accused persons in such cases[47]. The patriarchal courts could not see that conviction rate is low in such cases because of coercive mandatory compromises or the settlement enforced at various levels which start before registration of the case under the 498A or the PWDVA. Through such decisions the tyrant courts discourage and bully women to remain silent while de-recognizing the historical background of patriarchal structural discrimination where women have been forced to accept violence silently and prevent them to speak out the truth. The courts, thus, mirrored the oppressive patriarchal culture and uphold traditional values rather than safeguarding the spirit of the Constitution or promoting the rights and agency of women. While closing its eyes to structural imbalance of power within the marital relationship, the misogynist court reiterated perpetuation of male domination while normalizing violence and coercing women to internalize subjugation. The court while ignoring the women’s oppression uphold the false notion of preserving the `family’ while overlooking the fact that the role of law is to endorse justice and the rule of law.

There is a huge list of such cases where the courtrooms have not provided relief or justice to women complainants or have discriminated against women litigants. Often, they have promoted traditional regressive ideologies which are anti-people and anti-women and have acted to marginalize those who are already on the brink and are at the receiving end. The courts in all such cases are empowered by the patriarchal law to rule and decide about women’s bodies, women’s dresses, women’s choice pertaining to marriage, women’s reproductive rights, and other such decisions. Women are infantilized, demeaned, deprived of dignity, denied of their rights, and all in the name of the rule of law. The elite approach followed within the courtrooms often asserts supremacy while excluding the poor, women, children, Dalits, tribals and other subaltern groups. In itself, a court cannot change the law, yet, the court has the power to interpret and implement the given law in a sensitive manner while upholding the constitutional spirit and values, and that is what a litigant expects and society hopes for. However, this is not happening.

Part 3

Autocracy and Anarchy in the Court Rooms

Not only in the decision-making approach, but also otherwise, the aggressive, masculine, misogynist courts which often act like the self-appointed custodian of discipline[48] and morality. Recently, the Himachal Pradesh High Court decided to reprimand a woman government official who appeared in the court inappropriately dressed in a checked shirt and jeans[49]. “Every litigant appearing before the court is expected to be dressed in a modest manner so as to maintain decorum,” said a division bench of the court[50]. According to the court, the colourful attire undermines the majesty of law and accordingly it directed the state’s chief secretary to issue directives to all government officials to dress appropriately while appearing in courts. The Jharkhand High Court too had disapproved of the coloured printed saree worn by the Chief State Secretary appearing before the court and subsequently, the Jharkhand state government too issued a notification that bans government servants from wearing fancy shirts, jeans, T shirt or any other colourful dress to the courts. The autocratic High Court thus laid down guidelines as to what the litigants should wear in the court rooms. The Chief Justice of the Bombay High Court, too recently expressed its displeasure over a journalist’s attire who appeared in the court room in jeans and T shirt to cover the court proceedings and asked if it was a Bombay Culture’? while objecting to the dress<a href="#_edn51" name="_ednref51">[51]</a>. The <em>sanskari</em> Courts thus acted as custodian of moral and cultural values in the country where the principles of equality, justice and freedom are enshrined in the Constitution of India while determining the dress code for not only lawyers but also the litigants and other professionals who may appear in the courtroom while intervening in the personal choices of citizens to wear clothes as they wish to, as long as they were not deemed obscene for public appearances. Instead of adjudicating on the legal issues pending for long, the courts became the autocrat dictators of instilling morality and cultural values among lawyers, litigants and others appearing in the courtrooms.  Not only courts, when it comes to dress of women lawyers, even the bar association has not remained behind to issue diktats. The Indore High Court Bar Association asked the Principal Registrar of the MP’s High Court, Indore Bench to issue an advisory on the dress code for women lawyers and interns who constitute a meager twenty percent of professionals in the premise of the court<a href="#_edn52" name="_ednref52">[52]</a>. The Central Administrative Tribunal too issued a dress code for female lawyers and judges and expect themto wear a black coat over a white saree or any other form of dress which stretches to their ankles’[53].

Not only in India, elsewhere, too the judges show their authority to prescribe what women should wear in the courtrooms.One of the woman lawyer recounted the ordeal of her colleague who was reprimanded by the judge for her dress, titled as “Lawyering as Women”[54],

I learned to dress myself when I was four
By six or seven, I’d learned even more.
By seventeen, I’d burned up my bra.
At age 29, I entered the law.

I’ve dressed for court in ribbons & bows
Some hot summer days, I’ve bared my toes.
I’ve argued cases in maternity clothes-
But never have I seen a judge in such throes.

As when I came to court looking quite patriotic
Only to discover just how idiotic
Judge Mills had determined my attire to be,
My wool navy skirt which came down to my knee,
My button down blouse buttoned up to my collar
My dark navy legwear-I looked like a scholar!

But no! said Judge Mills, this outfit won’t do!
It’s too sporty, too bright, for a lawyer like you.
Not only that, but last time, it’s true:
You came to my court dressed way wrong then, too.

Said I, but Judge, what will I do?
My wardrobe is filled with colorful suits,
A red one, a teal one, I even wear boots!

I looked in my closet one day & I said
“I’m sick of gray suits, they make me look dead.”
I waited until I had saved up some cash
(I’m always waiting, there’s never a stash).

I took myself shopping at a fine little store
& told them I’d wear dreary colors no more.
Together we looked at the fabric & hue
Taking into account this job that I do.
Which is stressful enough, without adding to.

Good enough, said my clients, the juries, the judges
Good enough, said my preacher & those without grudges
Good enough, said the years as I practiced the law
Good enough, said my daughters, alert for a flaw.

“Inappropriate! Too flashy, too sporty, too strong!
This clothing you choose is simply quite wrong!”
Said Judge Mills as those in the courtroom stared,
Their mouths all agape, at least one of them scared.

“Pants are accepted, and necktie will do,
Or you could just go shopping; I advise you to.
But don’t think for a moment that I will forbear
From scolding you here & harassing you there.”

“But all this, Your Honor, for the clothes that I wear?
Surely there are greater issues out there.”
Like justice and mercy & search for the truth
Like professional pride and the burden of proof
Like which of our punishments are inhumanely cruel
And now: what to do with this silly old fool.

The analysis of several such other decisions show that at point, the courts operate in the manner similar to khap panchayats issuing diktats andtughlaqifarmans to determine the way women should dress, maintain relationships, remain docile obedient and good wives and daughters, or even survive otherwise in the patriarchal world. Rather than showing any interest in social transformation which challenge the male domination, these patriarchal courts operate to weaken the fight of women for justice. These are a few cases which unpack the deliberations relating to discrimination that prevails in the court rooms and the manner in which the ideological underpinnings threaten the position of women who knocked the doors of the court while overlooking their vulnerabilities. These judicial resonances may have multiple repercussions for gender based discrimination. There are other multiple issues which have been dealt by the courts for instance, entry of women into temples and places of worship, family related issues, property and service related matters among others where the courts often use patriarchal lenses and deny women their rights as citizens, or at times, have acted as ally with women while supporting the entitlements and claims of women and upholding their rights as citizens.

Part 4

Yet Hope Prevails Because a Few Women Persist….

Howard Zinn, an American historian and an activisthas said, “To be hopeful in bad times is not just foolishly romantic. It is based on the fact that human history is a history not only of cruelty, but also of compassion, sacrifice, courage, kindness. What we choose to emphasize in this complex history will determine our lives. If we see only the worst, it destroys our capacity to do something. If we remember those times and places—and there are so many—where people have behaved magnificently, this gives us the energy to act, and at least the possibility of sending this spinning top of a world in a different direction.And if we do act, in however small a way, we don’t have to wait for some grand utopian future. The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvelous victory.”The ray of such hope is visible when despite of the environment where the human rights are being undermined in the popular discourse the Supreme Court in the Extra Judicial Executed Victim Families Association versus Union of India ordered the filing of FIR against the members of Manipur Police and Central Reserve Police Force, who have allegedly violated the law using excessive force leading to death of civilians[55].  The same court has awarded Rs 10 Lakh compensation to the family of Thangjam Manorama who was raped brutally tortured and her body was mutilated by the members of Assam Rifle[56].

Similarly, to fight the patriarchal environment that prevails in the Indian courtrooms, there are women who are making their mark and are utilizing the law and the legal system to make a dent on patriarchy. Thesecourageous women who are standing up against the powerful institutionalized structural imbalance and asserting their rights while showing that the Constitution, the law and the courtrooms do not belong to a handful of judges and lawyers but these belong to the people, the litigants, the poor, the marginalized, the women – to the people of the country. The system may be powerful or corrupt but people are more powerful than the system and have the power to smash the loopholes within it. The courts in several cases have given positive decisions that uphold women’s rights because of the will power offew women who persisted to smash patriarchy. Though skepticism still persists within the courtrooms and often judiciary pays only lip services to the women’s questions without really shaking the patriarchal mindset[57], yet the transformation could be observed in the trend from the decision in Mathura’s Rape case to therare decisions such as those in the landmark Vishakha’s[58] judgement,from Shah Bano to Shayra Bano are being pronounced by the courts. This may be due to persistence of those women who fought relentlessly shaking and making dent on the rigid system. In the recent famous Ram- Rahim case, the two women raped by the influential men stood to their ground and got him convicted after a long struggle. These women who are contesting their claims as mothers, wives, sisters or as women being victimized and discriminated in any other way persisted and fought the hard battles inside and outside the courtrooms and marching ahead niching a path to justice for themselves and for millions of others.

The Black Panther activist Assata Shakur once said that “Nobody in the world, nobody in history, has ever gotten their freedom by appealing to the moral sense of the people who were oppressing them”. However, there are a few women who by their sheer resilience and grit are shaking the roots of the patriarchal exploitative and oppressive system. The community of women, including those from different sections, class, castes, religion or other background, which is historically marginalized and silenced is now transforming and there are women who are courageously challenging the oppressive power structure. It is not that the courts have suddenly become sympathetic to the concerns of women, or have started trusting the credibility of those being marginalized for ages, rather this shift is possible because of the persistence of a few who pushed the boundaries of regression and made the dent on patriarchy.

In ABC versus the State (NCT of Delhi)[59], an unwed mother seeks to gain the sole guardianship of her child where the Supreme Court in its landmark judgement ruled that the consent of the father is not required. While endorsing the single woman’s power to bring up her child alone, the Court made a dent on suffocating patriarchal barriers, stigma, pity and shame around the issue. In Roxanne Sharma v Arun Sharma[60] the Court held that the custody of the minor child will remain with the mother as the child should not be treated as a `chattel’. In P Geetha v Kerala Livestock Development Board Ltd[61] the Kerala High Court affirmatively upheld the rights of surrogates to maternity benefits claims and entitlement. The Court held that the women could not be discriminated in granting maternity leave just because the baby was obtained through the process of surrogacy. The three judges bench of the Supreme Court in the matter of Pawan Kumar v State of HP[62]while considering an appeal filed by the accused for the conviction for abetment of suicide of a girl, observed that a woman has her own space as a man in the society. The Court while holding that eve teasing violates a woman’s fundamental right to live with dignity commented, “One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject”.The Court agreed that male chauvinism has no place in a civilized society and that egoism must succumb to the law.

On April 10, 2015, the Supreme Court in Laxmi v Union of India[63] issued several directions to protect the victims of acid attack such as giving Rs 3 lakhs Rupees as a minimum compensation to the victims, victims compensation schemes must be adequate publicized, setting up Criminal Injuries Board, private hospitals cannot refuse to provide treatment to the victims, actions must be taken against those who refuse to comply with the orders to treat the victims and that the full treatment must include medicine, food, bedding and reconstructive surgery besides banning the sale of acid across counter.Based on this decision by the Supreme Court, the High Court of Calcutta ruled that the victims of acid attack prior to December 31, 2009 the day on which Section 357A was inserted in the Code of Criminal Procedure would be entitled to compensation[64]. Further, in Suresh Chandra Jana v the State of West Bengal[65] while setting aside the acquittal in the acid attack case the Supreme Court held that while giving the benefit of doubt to the accused the plight of the victim should not be ignored.

In Lilu @ Rajesh v State of Haryana[66] the Court held that “the two-finger test and its interpretation violates the rights of the rape survivors to privacy, physical and mental integrity and dignity. Thus, this test even if it reports affirmative, cannot ipso facto, be given rise to the presumption of consent”. Though the decision in itself does not grant any new right in itself yet it discard the two-finger test and upheld women’s right to privacy and dignity and thus provide a sense of security to the rape victims.

The Delhi High Court in Sujata Sharma v Manu Gupta[67] ruled that the eldest female member of the family can now act as Karta or the legal head of a household of the Hindu Undivided Family and in charge of all matters relating to family inheritance, property management and decisions. There are several such decisions being pronounced by various courts which upheld women’s rights because women petitioners have raised questions and challenged the patriarchal norms. The Supreme Court is being forced to examine the matter relating to women’s entry into Shani Shingnapur Temple in Ahmed Nagar District in Maharashtra, Sabrimala Shrine in Kerala or the Haji Ali Dargah in Mumbai, the places of worship which deny entry to women for ages. There are individual women such as Rupen Deol Bajaj[68] toSatya Rani Chadda, to Bhanwari Devi[69] to Varnika Kundu[70]and many other unknown women who are fighting against the patriarchy, sometimes silently without any support.

Thus, it may be concluded that he law is a blunt tool and though it makes tall claims of being objective and neutral, in itself, the law is fragile and will not smash patriarchy. Rather, the courts have always favored the power structure and shielded those who are resourceful. The courtrooms, themselves as a symbol of authority, defend the values of supremacy and protect the oppressive and regressive system. However, those on margins with their conviction and belief in the values of democracy, justice and the rule of law, need to shake the system. With individual or through collective action the marginalized are challenging the power structure and are compelling the state and the society to make social and political transformation at a larger level. Angela Davis said that “in a racist society it is not enough to be a non-racist. We must be anti-racist”. Similarly, here it may be derived that `in a patriarchal society, it is not enough to be a non-patriarchal. We must be anti-patriarchy’. The women with their sheer will and conviction are marching ahead to smash patriarchy using law as an instrument of change. However, what is required is the radical interpretation of constitutional values by the courts and this should be strengthened by assuring the equal representation of women within judiciary at all levels to open up the possibility of non-discrimination within the patriarchal hostile settings.

The author is a practicing advocate, researcher and an activist working on gender, governance and human rights issues. She has written several books and articles on various social and legal issues. She may be contacted at [email protected]

[1] Justice K S Puttuswamy (Retd) v UOI WPC 494 of 2012 or Privacy Judgement by the Supreme Court

[2] Shayra Bano v Union of India WPC 118 of 2016, with Suo Moto Writ (C ) 2 of 2015 or Triple Talaq judgement by the Supreme Court

[3] The Hindustan Times (2017) Highlights, Court on Ram Rahim’s 20 year Jail Sentence: Behaved like a Wild Beast, Does Not Deserve Mercy, August 28

[4] As in Ram Rahim’s case, the Godman backed by politicians, did everything to suppress the voice of women Sadhvis who filed case against him and this include killing of the journalist who first made the letter written by the two victims to the Prime Minister Atal Bihari Vajpayee in 2002, public Indiatimes (2017) Fearless Efforts of These Five People Made Sure that Influential Ram Rahim Gets Convicted, August 26

[5] Robinson Nick (2013) The Indian Supreme Court and Its Benches, The Seminar, 642

[6] The Court, (2014) A movie based on legal drama written and directed by Chaitnaya Tamhane depicted the nitty gritty of the Indian Legal System through the trial of folk singer at Session Court in Mumbai shows how the system works. Other movies such as No One Killed Jessica, Pink, Jolly LLB and several others depict the situation of the Indian Legal system and the manner the courtrooms work and victimize the poor and the marginalized including women.

[7] It is recently that the provisions of Section 357 A of CrPC are being utilized to provide compensation to the victims of crime in a few cases. Some of the states have also formulated policies to compensate women victims of crimes in several cases, yet many victims are deprived and denied of justice and relief

[8] Dhrubo Jyoti and Roshni Nayar (2017) Tales from Former Inmates, What Life is Like in Women’s Jail in India, The Hindustan Times, July 26, Rath Basant (2017) Why we need to Talk About Condition of Indian Prisons? The Wire, July 26,

[9] Shukla Rakesh (2017) To Remove Caste Bias From the Judicial System, Judges Need to Self-Correct, The Wire March 23,

[10] Bhushan Prashant (2009) Misplaced Priorities and Class Bias of the Judiciary, The Economic and Political Weekly, 44, No. 14, 32-37

[11] The National Legal Service Authority Act directs the state to provide legal aid services to the poor and the marginalized sections of the communities. However, the quality of services provided through the District Legal Service Authorities are yet to be measured and very few independent studies have been conducted for the same.

[12] The Hindustan Times (2017) Law is Not Same for Rich and Poor: Victim on Uphaar Case Order, March 20,

[13] Nair HV (2014) Judges admit Rich and Mighty Get Swift Trial, India Today, October 13,

[14] Dawood Ayub (2015) Law in India Separate for the Rich and Famous. Instances of Double Standards Stand Testimony, Scoopwhoop, August 26

[15] Dhawan Himanshi and Pradeep Thakuri (2015) Here’s the Proof that Poor Get Gallows and Rich Mostly Escape, The Times of India, July 21

[16] Live Law (2017) Women Outnumber Men in Kerala Munsif Magistrate Selection, August 7.

[17] Nigam Shalu (2015) Hail Patriarchy! Of Supreme Law and Elite Judges, Countercurrents, November 7,

[18] Lok Sabha (2017) Response to the Unstarred Question No. 5218 answered on 5.4.17 Ministry of Law and Justice,

[19] Mishra Soni (2016) I was Sexually harassed in the Corridors of Supreme Court: Interview with Indira Jaising, November 13, The Week, Also, India Today (2013) Justice Ganguly Kissed My Arm…Ask me to Share Room, Said Law Intern in Supreme Court Affidavit, December 16,

[20] National Judicial Data (2017) accessed on 23 August 2017

[21] Nigam Shalu (2005) Understanding Justice Delivery Mechanism from the Perspective of Women Litigants as Victims of Domestic Violence in India, Occasional Paper No. 39 CWDS, New Delhi

[22] Sathe SP (1999) Gender, Constitution and the Courts, In Engendering Law, Essays in Honour of Lotika Sarkar, Editors Amita Dhanda and Archana Prashar, Eastern Book Company, Lucknow

[23] Writ Petition Civil No 13 of 2015 Suggestions on behalf of Supreme Court Women Lawyers Association for Consideration of Meritorious Women for Adequate Representation in Appointment as High Court Judges/ Supreme Court Judges

[24] Live Law (2016) After Complaint of gender Bias, SC promises More Women Judges in Apex Court and High Courts, November 10,

[25] Venkatesan J. (2017) SC begin Hearing on Validity of Triple Talaq with 5 Judges from Different Religions, The Asian Age, May 11,

[26] Supra Triple Talaq case

[27] Shariff Abusaleh and Syed Khalid (2017) Abandoned Women Vastly Outnumber Victims of Triple Talaq and Its Time Modi Spoke up for Them, The Wire, July 17,

[28]Sinha Bhadra and Ahuja Rajesh (2017) Kerala Love Jihad: SC Orders NIA Probe into Woman’s Conversion Marriage, The Hindustan Times, August 16,

[29] The Times of India (2013) Judges Should Not Make Insensitive Gender Biased Comments: Delhi High Court, December 22,

[30] Chandra Sudhir (1998) Enslaved Daughters: Colonialism, Law and Women’s Rights, OUP, New Delhi

[31] Sarkar Tanika (2001) Conjugality and Hindu Nationalism: Resisting Colonial Reason and Death of Child-Wife in Hindu Wife Hindu Nation: Community, Religion and Cultural Nationalism Permanent Black, N Delhi p119-225

[32] Latest Law (2017) High Court: No Women is unemployed, Even as a Home Maker She Dons Several Hats, June 29,

[33] Sural Ajay (2015) Compromise Fine in Rape Cases where Accused and Victim are Happily Married:HC, The Times of India, April 19,

[34] Cri Appeal 231 of 2015 in SLP 5273 of 2012

[35] WPC 17243 of 2016 Kerala High Court dated June 15, 2016

[36] Bedi Aneesha (2017) 10-year-old’s abortion: After SC verdict, focus shift to Girl’s Health, The Hindustan Times, July 29,

[37] Firstpost (2017) Chandigarh: 10 Year Old Rape Victim Delivers Baby, Put Under Observation, August 17,

[38] Arora Medhavi and Manveena Suri (2017) India: Court grants 10-year-old girl Right to Abortion in rape case, CNN, May 16,  Also, Chaudhari Kanchan (2017) Bombay HC refuses Plea to Abort 26-week Foetus of Pune Pune Teen Rape Survivor, The Hindustan Times, June 15, and Anand Hardik (2017) Rohtak: Doctors to Abort Baby of 10-year-old Who was Raped by Step Father, The Hindustan Times, May 25,

[39] Sinha Bhadra and Ahuja Rajesh (2017) Kerala Love Jihad: SC Orders NIA Probe into Woman’s Conversion Marriage, The Hindustan Times, August 16,

[40] Civil Appeal No. 3253 of 2008 decided on October 6, 2016

[41] Decided on March 31, 1999

[42] Livelaw Network (2017) Criminalizing Marital Rape May Destabilize Institution of Marriage: Center Tells Delhi HC, August 29,

[43]Nigam Shalu (2015) The Social and Legal ParadoxRelating To Marital Rape In India: Addressing Structural Inequalities, Counter Currents, June 3

[44] Sinha Badhra (2017) Govt Defends No Action For Legal Exception Allowing Forced Sex with Minor Wife, The Hindustan Times, August 10,

[45] The Telegraph (2017) Marriage Defence for Rape, August 10,

[46] Sinha Shanta (2017) The Centre has Solemnized the Invasion of Girls’ Bodily Integrity, Sexuallity and the Mind, The Wire August 14,

[47] Nigam Shalu (2017) Is Domestic Violence a Lesser Crime? Countering the Backlash Against Section 498A Occasional Paper No. 61, CWDS, New Delhi

[48] Nigam Shalu (2014) The Mystery of the Black Coat, Countercurrents, August 11

[49] Bagriya Ashok (2017) Dress Code in Himachal High Court? No Jeans, Checked Shirt for Litigants, The Hindustan Times, August 6,

[50] HuffPost (2017) No Jeans Or Printed Clothes: Himachal Pradesh HC Orders Dress Code For Litigants, August 6,

[51] The Hindu (2017) Bombay High Court Pulls Up a Journalist for Wearing Jeans, T-Shirt to the Court, March 29, Mumbai

[52] Mujumdar Soudamini (2017) Bar Association Seeks Dress Code for Women Lawyers, The Times of India, July 4,

[53] News 18 (2015) Government Issues Dress Code for Female Judges, Lawyers in Central Administrative Tribunal, March 13,

[54] Stephanie Harris (2014)  posted on May 11

[55] Chimni Abhik (2017) Supreme Court Picks Up the Gauntlet of Human Rights At a Crucial Juncture, The Citizen, July 21,

[56]Suresh Sabarish (2017) 13 Years After the Mothers of Manipur Protested Naked Against Indian Army, where is Justice? Daily O July 15,

[57] Rautray Samanwaya (2013) Naina Sahni Judgment: The Perverse Patriarchy of the Highest Court, The Economic Times, October 31

[58] (1997) 6 SCC 241

[59]SLP (Civil) No. 28367 of 2011, on 6 July 2015

[60] Civil Appeal No. 1967 of 2015

[61] WPC 20680 of 2014 Kerala High Court

[62] Criminal Appeal No. 775 of 2017 arising out of SLP (Crl) 8998 of 2016 decided on April 28, 2017

[63] WPC 129 of 2006

[64] Piyali Dutta versus the State of West Bengal and Ors WPC 26174 of 2014 decided on July 7, 2017

[65] Criminal Appeal No 32 of 2008 Supreme Court August 11, 2017

[66] Criminal Appeal 1226 of 2011 decided on 11 April 2013

[67] CS (OS) 2011/2006 Pronounced on 22.12.15

[68] Scroll (2017) Watch: Rupen Deol Bajaj talks about Sexual Harassment Case she won Against KPS Gill, June 5,

[69] Pandey Geeta (2017) Bhanwari Devi: The Rape that led to India’s Sexual Harassment Law, BBC March 17

[70] Sharma Manoj Grewal (2017) Breaking Barriers: How DJ Varnika Kundu Stood Up to VIP Stalkers in Chandigarh, The Hindustan Times, August 13,


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