16th December 2017 : Sway of Patriarchy over Judiciary must be Fought

Five years down from 16th December 2012 and the subsequent struggle highlighting the grip of patriarchy over all wings of the State and over society, little has changed. One aspect under the scanner then was the Judiciary. This year there is sufficient reason to use this day to focus on how the courts of India are keeping alive patriarchal chains on women while even robbing women of hard won rights. On December 16th this year, we should highlight the role of judiciary in defending and perpetuating the patriarchy in the society.

There are examples galore of the way judges at different courts at different levels pass remarks justifying dowry, explaining away beating up of wives by husbands as “correction”, commenting on “misuse of laws” by women to terrorize the in laws and husbands. Women activists in every state can find examples galore of such experiences in the various lower courts in their states and at the level of the High courts. But it is important to see the example set by the highest Court in this regard, because it is followed by the lower judiciary.

Over the past three years, there has been focus on the Supreme Court’s restraint on immediate arrests under Section 498A. While other situations also come under this Act, it was pointed out that this provision allows immediate relief to women who are victims of domestic violence as it allowed immediate arrest of the accused. The Court not only did not provide for exemption, in July this year it even provided guidelines for a sort of parallel policing, with provision of neighbourhood committees to ascertain need of arrest of husbands and in laws guilty of violence against the daughters in law.  Facing continual protests by women’s organizations and scathing criticism, the Court has recently remarked that perhaps its position needs revisiting, but it is yet to do so. In this entire issue, the Court has undoubtedly been guided by the notion that women use legal provisions wilfully and baselessly to trouble their families, ignoring the reality of this country. For every woman who does manage to approach the police and /or courts for protection, there are so many others who are unable to do so for a variety of reasons.

The situation of the family courts and courts dealing with maintenance is so depressing. There are long delays, inadequate personnel with the courts lead to long delays in even recovery of women’s clothing from the home she has been forced to leave and also the attitude of the judges undermines the women’s right to lead safe lives by underlining the need of “compromise” and “patience” by women in the interests of the families involved. Utterances by judges often directly and indirectly underline the patriarchal belief that the honour of the family is tied to the women’s choices and sacrificing themselves for the “good” of the families is the real purpose of their existence.

The issue which has invited the most patriarchal response from higher courts is that of the marriage of Akila who had earlier converted to Islam and has taken on the name of Hadiya. Opposing her adult decisions, her parents took the plea that she had been “brainwashed”, recruited by a terror organization and that her husband belonged to an Islamic political party. The party in question is not banned in India or in the state of Kerala from which Hadiya hails. Kerala, it should be remembered, is a state where Hindutva forces and a section of Christian clerics had even earlier cried wolf over ‘love jihad’ to oppose inter-religious marriages. There was a formal enquiry into these allegations by the then Govt. of the state and the claims of ‘love jhiad’ were refuted. However, the High Court of Kerala annulled Hadiya’s marriage, declaring that children should be guided by their parents when marrying. It then handed over “custody” of the adult homeopath woman doctor to her parents. Hadiya’s husband approached the Supreme Court. Supreme Court did not strike down the High Court’s decision, only changed the adult woman’s guardian in answer to her demand for independence, did not comment on her right to marry whom she chose and postponed further decision till the next hearing, during which period the NIA will carry on investigating ‘love jihad’ and terror organizations in Kerala. Is it the law that an adult woman may not marry a so called ‘terrorist’?  Are marriages by adults without the consent of parents, illegal? These are issues the women’s movement is fighting all over the country. Love Jihad, bahu beti izzat, so many other terms are the weapons to restrict freedom of marriage especially to women. The Supreme Court’s procrastination in commenting on the Kerala High Court’s judgement is doubtless strengthening the patriarchal forces who want women to be “regulated” as they are “repositories of honour” of families, religions and castes in patriarchal India.

Discussion on patriarchy in the courts of India is incomplete without touching on the issue of sexual harassment at workplace. The Supreme Court of the country has no effective redressal mechanism for the women who work there; it must be remembered that two law interns who dared to speak out about the involvement of two judges of this Court were ultimately quietened, with one of the judges even getting a high profile post. Women lawyers face sexually explicit comments not only from colleagues (which of course they should unite to fight) but also some male judges at various levels.

Violence against women continues to be rampant in society and the figures released from time to time by govt agencies show that conviction rates in various heads continue to be woefully dismal. This is despite many studies that show that post the 2012 struggle, women in cities at least are daring to speak out against patriarchal violence and even go to police stations with their complaints. Neither does judiciary penalize police for shoddy investigations, nor does it even provide relief to women through fast and effective supportive measures at least- like recovery of clothes, defence in partitioned conjugal home, protection in inter caste and inter religious marriages and so many other measures.

On 16th December 2017, let us highlight the role of Judiciary in supporting and perpetuating patriarchal practices and ideas, while we strengthen our resolve to fight violence against women, fight patriarchy.