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What is the justification of that Judicial regimen, where due justice becomes a jargon of unjust juxtapositions judiciously jaundiced with jibes and jabber?

Six years ago, a concern regarding justice in matters related to crime against women was raised before a panel of judges of the Calcutta High Court at a legal seminar in Asansol, the incident pondered another question about female participation in investigative teams and without much of surprise, there wasn’t a single woman advocate to actually answer my question or explain the condition anyways.

The pursuit of an egalitarian and gender-neutral society under due actions of female representation and supervision of institutions seems quite paradoxical in the Indian context. While the legislature, is mostly up to the consensus of the general population, the rationality in demographics of the executive needs to be looked upon in a separate column, this leaves us with probably the most important of these institutions – The Indian Judiciary.

Over generations, the Indian Judiciary which has historically been a reserve of few mighty men has undergone multiple amendments to allow itself to cater to the rightful place and needs of women. The first initiative to enter the Black Robe Men Sanctuary was taken by a Bengali Calcutta University Law Graduate named ‘Regina Guha’, who applied as a pleader at the district court of Alipore on 1st September, 1916, her case was dismissed by a bench of male judges under the Legal Practitioners Act.

But, following the Sex Disqualification Act, 1919 another Bengali lady by the name of Sudhanshubala Hazra augmented another petition in Patna District Court for her appointment as a pleader. The bench at Patna High Court which was redirected to preside upon the case passed a similar judgment as of the previous case debarring her to enter the legal practice.

Sudhanshubala Hazra in the 1920s said, “If there is any country, where Lady practitioners are necessary, it is India… they (women) cannot instruct the lawyer of other sex and consequently they became victims to the dishonesty.”

After a great struggle the year 1923 saw the passage of Legal Practitioners (Women) Act dismissing the disqualifications based on sex. Since, then prominent female lawyers like Congress Leader Violet Alva, who became the first women lawyer to appear before a High Court in India in 1944, rose to limelight and advocated rights of women fiercely.

In 73 years of Independence, India witnessed just a few judges at the High Courts and the Supreme Court of India. In 1959, Anna Chandy became the first female judge in an Indian High Court, subsequently more like Konameneni Amareswari and Janaki Amma were appointed later at different High Courts of India. But it was only in 1989, that M Fathima Beevi was promoted as the first female judge at the Supreme Court of India. In total out of the 214 ex-judges of the Supreme Court, only five were women, whereas out of the 33 sitting judges at the Apex Court only three namely India Malhotra, R Banumathi and Indira Banerjee are women.

Apart from the chair of the judge’s significant women have inspired young and aspiring advocates with their strong skills and iconic cases that have prospered tales for generations to come.

Flavia Agnes of the ‘Majlis’ foundation is the first name that one can think of for her gender and minority rights advocacy in courts and well as papers, her initiatives for action against domestic violence is a self-experience that inspired and helped many women rightly. The 2012 Nirbhaya Case prompted another strong advocate of Anti Rape Bill who has been a defining name in criminal, constitutional, media and policy laws. As a ferocious advocate of Free Speech, Karuna Nundy fought ardently for the survivors of Bhopal gas tragedy and has been leading many in the Anti CAA (Citizenship Amendment Act) NRC (National Register for Citizens) and NPR (National Population Register) protests.

Veteran Supreme Court Advocate Pinky Anand who is currently serving as an Additional Solicitor General of India has expertise in Constitutional, Property, Family and International law. Talking about another and the first Additional Solicitor General of India, Indira Jaising is one of the highest-ranked leaders whose voicing of child, women and minority rights is hailed with respect, she has argued cases of homeless and environment concerns in the Supreme Court and is currently representing the students of Jamia Millia Islamia who suffered the Police brutalities and action. Vrinda Grover is another female lawyer who has raised student’s pleas in the previous case, previously she has represented the victims of the1984 Anti Sikh Riots and has been instrumental in the formulation of POCSO (Protection of Children from Sexual Offences) Act, 2012 and Prevention of Torture Bill, 2010.

Rebecca John is probably the first woman Criminal lawyer who has handled numerous cases with like the 2008 Noida Double Murder Case. The Kathua Rape Case petitioner Deepika Singh Rajawat has certainly epitomized empathy with ferocious meticulousness; as a human rights activist, she has closely worked with ‘CRY'(Child Relief and You) and other NGOs.

The Corporate field would be incomplete without the famous and iconic Zia Mody who has sought to revolutionise the field for better at national as well as the global front. In a stark parallel to the corporate world, Sudha Bharadwaj has fervently advanced trade union and land acquisition laws in India, with a ground experience of working with the Dalits and tribals, Bharadwaj has strongly voiced their concerns multiple times. Lawyers like Menaka Guruswamy and Arundhati Katju who made a big progression after winning the battle against same-sex relationships are making their way as well.

With these names standing up to the double reputation of India’s judiciary and its women, the allegations, proceedings, and judgement regarding the sexual harassment charges levied against ex-Chief Justice Ranjan Gogoi has rightly brought up the fears of women where the case went up to country’s apex Court but in a rather bizarre manner. This surely reiterates Sudhanshubala Hazra’s aforementioned quote and necessitates the female participation in Indian courts for the greater good of all.

Featured Image Credits: Scoopwhoop

Faizan Salik

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The judgement of the Supreme Court that led to the “dilution” of the Prevention of Atrocities Act has triggered a debate regarding the tussle between personal liberty and social justice. This article takes a look at this discourse.

The recent judgement by the two-member bench of the Supreme Court in the Subhash Kashninath Mahajan Vs. The State of Maharashtra case brought an amendment in the SC/ST Prevention of Atrocities (PoA) Act, 1989 and protests across the country leading to the death of nine people and several injured. The judgement excluded the PoA Act from exclusion of granting anticipatory bail to the accused after the lodging of FIRs and also made it compulsory for a public servant to have a written permission from the employer and for a non-public servant to get a written permission from the Senior Superintendent of the Police before any arrest can be made. It also allowed for a “preliminary enquiry” before an FIR could be lodged to find out if the accusation was “frivolous” or “motivated”.

The judgement is based largely on the National Crime Records Bureau (NCRB) data which contrary to popular opinion do not reflect the misuse of the PoA Act, but the non-implementation of it. The NCRB data revealed that the conviction rate for cases filed under the Act was 15.4 percent. However, the judgement failed to note that in the same year, 40,801 cases of crimes against Dalits were registered (this ignoring the large measure of such crimes that go unreported).

The Indian Express featured a report on the same that had mentioned a senior official at the Director General of Police, who claimed, under the condition of anonymity, that the figures under the PoA for 2016 were around five to six percent, which has also been an average observed in the last couple of years. So, the claims that the Act has been misused seem to be unfounded. This is what the figures say. However, the judgement itself is largely on the basis of an acute sense of oblivion of the socio-economic reality of the country. As growing cases of violence against Dalits show, caste-biased forces are active not just in the public arena but also in the highest echelons of justice. P.S. Krishnan, the original author of the 1989 Act and renowned civil servant, points out the repercussions that come with any assertion of constitutional rights that SCs/STs take, such as massacres, mass arson, witness tampering, intimidation, physical and verbal abuse, assault etc. “These facts are so well-known and notorious that the Supreme Court will be required to take judicial note of it,” he writes in an open letter. As the premier law-enforcing institution in the country, the judgements of the Supreme Court need to be reflective of such a reality. The original 1989 Act, enacted under the Rajiv Gandhi government, was in response to the rampant atrocities faced by the SCs and STs. In such a sense, the 1989 heeds the caste-biased nexus between the law-bureaucracy-and the executive of the country while the 2018 judgement ignores it.

The recent judgement also stems from a desire to correct a so-called “misuse” of law, a claim (as already seen) that cannot be backed by facts and hence, has underpinnings of a desire for vengeance. Such an approach by the judiciary is unlikely to solve anything. While the judgement quoted the ideals of personal liberty and freedom of the individual as being central to its decision, it fails to see the rights of the individual in the context of a larger, community-based macrocosm. While this overemphasis on the individual might not necessarily be undesirable, acts like the PoA are part of the state policy of positive affirmation and hence, need to be seen in Dalit or Adivasi existing in a vicious web of hostile forces that begin from the local upper-caste politician to the unhelpful police force, such a decision is bound to be a catalyst for further alienation.

Noted Italian thinker, Antonio Gramsci’s ideas on the manufacture of consent through the cultural hegemony of the bourgeoisie, which lead to the exploitation of the already marginalised, find a place here. Gramscian ideas have inspired social movements that rely on explicit strategies to counter the knowledge and cultural systems created by the dominant classes, which propagate a preponderant notion of what is legitimate and what is normal. The opposition to the Supreme Court judgement seems to arise from such a desire, and very rightly so.

Feature Image Credits: The Indian Express

Sara Sohail
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