GUIDELINES FOR A WORKSHOP ON GENDER JUSTICE

There may be the following modules or sessions in a workshop/seminar for advancing equal justice for women. These suggestions were made on 16.4.2006 in a conference on the same subject at the NJA Bhopal.

1. Gender bias: The Judges should be made aware of their own gender bias. In 2001 British Council, University of Warrik, National Judicial Academy and the High Courts had organised colloquium in different judicial training Institutes in the country. Ms. Ann Stewart along with the help of judicial trainers earlier trained in England had designed different activities for this purpose. Similar activities may be planned.

2. Facilities: The facilities that may be provided in a court premises for women. The judges should ensure that Providing infrastructure in the court premises for women.
(i)A separate bathroom for the Ladies. Sulabh International is managing bathrooms at many court premises. Some bathrooms may be exclusively for the ladies. A passage from the Autobiography of Justice Leila Seth, 'On Balance' (page 127) will show the conditions of bathrooms for lady advocates in the High Courts:

'There was, unfortunately, no proper women's toilet. A musty storeroom, a good distance away, had been allotted for this purpose. It was kept locked and the key was with Dharamshila Lal. After my arrival, it was decided that the key should be kept with the librarian, Khadim, a gentle and quiet man. However, Dharmshila, who was not used to this arrangement, sometimes forgot to return the key to him, and there was quite a crisis when she had to be sought out in court and the key retrieved from her handbag. The most awful part of it all was that this room was infested with bats. I was just terrified to go inside. Having heard stories that bats clung to your hair, I used to cover my head with the end of my sari, clinging to it while using the toilet. The room was dark and full of old, discarded files and every time the door squeaked open, the bats started flying about in great agitation. I wondered how Dharamshila coped and if there was some magical way in which I could stop the bats from flitting about.
At first, I was too afraid to say anything to anybody, but as my terror increased, I complained to Dharamshila. She looked surprised and said shortly, 'How do you intend to practise and do well in Bihar if you are afraid of bats? That certainly put me in my place.'

(ii)A separate waiting room for lady litigants.

(iii)Crèche

3. Sexual harassment at the working place: The following two cases may be explained.
(i)Vishaka vs. State of Rajsthan: (1997) 6 SCC 241 = 1997(7th) JT 384 = AIR 1997 SC 3011.
(ii)Apparel Export promotion Council vs. AK Chopra: 1999 (1) SCC 759=AIR 1999 SC 625.
The aforesaid two cases have explained in paragraphs 55-56 of the article 'Gender Justice – A legal Panorama'.

4. Awareness: Information regarding the following topics may be given.

(i) Women education;

(ii) Primary health;

(iii) Women empowerment;

(iv) population policy;

(v) Policy for empowerment of women;

(vi) Reproductive rights of women;

(vii) Aids/HIV.

5. Court Management: The following points be emphasised.
(i)The computer category of cases dealing where women and children are victim may be different so that such cases may be identified and easily tracked down. Some of the sections of the IPC and other Acts that may be separately categorised are mentioned in Appendix-1.
(ii)List the cases dealing with women as first case.
(iii)The file cover of these cases may be of different colour. This will indicate priority
(iv)Before proceeding ex-parte in a case where women are defendants, service of summon should be done by the advocate commissioner.
(v)Service of summons in maintenance case: order may be to pay or show cause.
(vi)Decide the question of maintenance on the first date.
(vii)Maintenance is deducted from the salary of the husband in case he is in government servant. Similar order may be passed in case husband is in private employment.
(viii)Women witness may be examined on commission.
(ix)The inquiry and the trial under section 376 to 376-D of the IPC are in Camera under section 327(2) of the CrPC. The inquiry and the tria,l where children or women are victim, may also be done in camera under proviso to section 327(1) of the CrPC.
(x)The counsellors are generally untrained and often don't understand their work. Kindly see Sri A vs. Smt. A 2005 Allahabad Law Journal 102 (paragraph 21, 22)}.

6. Legal – Civil: The following topics should be explained.
(i)What should be quantum of maintenance? It should be between 1/3 to ½.
(ii)Whether residence can be provided under maintenance. Yes.
(iii)What kind of property can be dealt in the matrimonial dispute? Joint as well as separate provided given at the time of marriage.
(iv)Divorce – Muslim Law – Shamim Arra vs. State of UP, 2002 (7) SCC 518 (the Shamim Arra case). It lays down the following conditions for valid conditions of valid divorce.

• Not on the whim of the husband
• Under exceptional circumstances
• For reasonable cause
• Only if it is preceded by attempts at reconciliation between husband and the wife by two arbitrators – one from the wife's family and the other from the husband's – fail.

(v)Blood/DNA test of the child: Goutam Gundu vs. State of West Bengal, 1993 (3) SCC 118 (the Goutam case).

'This section [112 of Evidence Act] requires the party disputing the paternity to prove non-access in order to dispel presumption. "Access" and "non-access" mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual "cohabitation”

These points have been discussed and explained in paragraphs 18-33 of the article 'Gender Justice – A legal Panorama')

7. Legal sphere – Criminal: The following principles in refrence to the following cases may be discussed.

(i)Tuka Ram vs. State of Maharastra, 1979 (2) SCC 143 = 1979 SC 185 (the Mathura rape case). This case may be discussed in order to explain the historical background of the amendments regarding rape.

(ii) State of Maharashtra vs Madhukar Narain Mardikar: (1991) 1 SCC 57=AIR 1991 SC 207.

(iii)State of Punjab vs. Gurmeet Singh; (1996)2 SCC 384=AIR 1996 SC 1393.

The aforesaid two cases have established the following principles.

(a) Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. … Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.
(b) If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars.'
(c) The court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. The Court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the court.
(d) it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges,
(e) The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. …
(f) Trial of rape cases in camera should be the rule and an open trial in such cases an exception.

(iv)Kundula Bala Subrahmanyam vs State of AP (1993) 2 SCC 684= 1993(2) JT 559= 1993 CrLJ 1635. This is regarding Dowry death. The Court established the following three principles.

(a) A wider social movement of educating women of their rights, to conquer the menace, is … needed.
(b) The courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence.
(c) The courts are expected to be sensitive in cases involving crime against women.

(v)Ashok Kumar vs. State of Rajsthan (1991) 1 SCC 166. The testimony of a lady doctor can be discarded or doubted principally because she is a women.

These cases have been discussed and explained in paragraphs 39-42, 46-49, 52-54, 60 of the article 'Gender Justice – A legal Panorama'.

8. Information regarding other other Acts: There are other Acts that deal with women rights like, The Pre-Conception Pre-Natal Diagnostic Techniques Act 1994, The Medical Termination of Pregnancy Act 1971 etc. Information regarding such Acts may be given.

Appendix-1

Acts and sections where women are victims

(a) The Immoral Traffic (Prevention) Act 1956
(b) The Indecent Representation of Women (Prohibition) Act 1986
(c) The Protection of Women from Domestic Violence Act 2005
(d) Following Provisions of the IPC: Sections 294, 304-B, 312, 313, 314, 354, 366, 366-A, 366-B, 372, 373, 376, 376-A, 376-B, 376-C, 376-D, 493, 494, 495, 497, 498, 498-A, 509.

Acts and sections where children are victims

(a) The U.P. Children Act 1951.
(b) The Child Labour (Prohibition and Regulation) Act 1986.
(c) The Children (Pledging of Labour) Act 1933.
(d) The Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994.
(e) The Juvenile Justice (Care and Protection of Children Act 2000.
(f) Following Provisions of the IPC: Sections 305, 315, 316, 317, 318, 363-A, 369, 377.