The Constitution of India has several laws and acts that favour positive discrimination to empower women. One of them is the National Commission for Women Act, 1990, following which the National Commission for Women, a statutory body, was set up in 1992 to safeguard women’s legal as well as constitutional rights enabling them to achieve equality. Its website lists the following as women specific legislation:
§ The Immoral Traffic (Prevention) Act, 1956
§ The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986)
§ The Indecent Representation of Women (Prohibition) Act, 1986
§ The Commission of Sati (Prevention) Act, 1987 (3 of 1988)
§ Protection of Women from Domestic Violence Act, 2005
§ The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013, The Criminal Law (Amendment) Act, 2013
Similarly, the Ministry of Women and Child Development’s The Protection of Children from Sexual Offences (POCSO) Act, 2012, and of late, has been in the news for quite controversial reasons. The controversy arose in the wake of a verdict by Justice Pushpa Ganediwala of the Nagpur Bench of the Bombay High Court, where she said that groping a minor without skin-to-skin contact is not a sexual assault under the POCSO Act, and this made several headlines since the judgement came out on 19th January 2021.
The Supreme Court came forward on 27th January and stayed this ruling amidst fears that it would set up a “dangerous precedent”. Justice Ganediwala has garnered further criticism for more similar judgements she has made which have surfaced on media since then. The Hindu reported that on 15th January, she reversed a conviction order stating, “The acts of ‘holding the hands of the prosecutrix’ (female victim), or ‘opened zip of the pant’ in the opinion of this Court, does not fit in the definition of ‘sexual assault’”. Similarly, an article in The Times of India covered that on 17th January she acquitted a man, quoting “it seems highly impossible for a single man to gag a survivor’s mouth, remove her and his clothes, and perform the forcible sexual act without any scuffle” and added than there was no medical evidence for a scuffle to have taken place.
Following these revelations, even though only one of the judgements has been stayed so far, the Supreme Court Collegium’s recommendation (which was made on 20th January) to appoint Justice Ganediwala as a Permanent Judge in the Bombay HC has been withdrawn by the Chief Justice of India, SA Bobde. The Collegium will also be taking a call on her present tenure as an Additional Judge. The fact that such orders were passed by a female Judge has led to a few people expressing disbelief and shock.
Interestingly, this attests to the findings of a research conducted by Sam Asher, an Assistant Professor of Economics at Johns Hopkins University, Paul Novosad, an Associate Professor of Economics, and Aditi Bhowmick, a Research Associate, both at Dartmouth College. A report was published in The Hindustan Times. The objective of the study was to investigate the existence of judicial bias in courts, to find out if judges favoured people with whom they shared their identity with. The researchers found that unlike in other countries, the lower judiciary (i.e. other than Supreme Court and High Courts) in India did not reflect any in-group bias. Despite the underrepresentation of women and Muslims when it comes to judges, the tests did not find instances where identity had a play in the judgements. “To our surprise, across six million criminal cases, we found virtually no evidence of in-group bias among judges on either gender or religion. Male defendants did not get better outcomes when they were assigned to male judges, nor did female judges favour women," the report reads.
The absence of such bias occurs to be a good thing, however, any judge giving verdicts like the ones mentioned above is concerning. Moreover, the aforementioned report does not rule out the presence of other forms of biases, including those pertaining to caste and other socio-economic factors. These verdicts particularly dealt with the POCSO Act, but they can be considered as precedents for other cases involving sexual assault against women as well. In the third verdict mentioned here, the Court did mention that: “no doubt, sole testimony of the prosecutrix in rape cases is sufficient to fix the criminal liability against the appellant”, however, it found the available evidence, in that case, unsatisfactory. What must be noted is that such judgements not only act as precedents in the legal system but could also deter women and other victims or survivors of assault from coming forward and filing a case and moving the judiciary. This could further discredit women and disenfranchise them from seeking justice. It also comes at a time when women’s right to make choices regarding their personal lives is already being undermined if not trampled upon completely by certain legislations in a number of states in India. Hence, the heightening apprehensions with respect to women and law in India appear to be justified.
(cover picture cortesy: Law Times Journal)
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