We were curious to know more about the position women occupy in the judicial system of India and the laws enacted for their protection and empowerment. Has there been a recent change in feminist jurisprudence in the law? Did the monumental Criminal Amendments Act of 2013 live up to its promises? Where is the future of women in the field of law? These are some questions we posed to Esha Meher.
She is currently the head of legal affairs at the Gender Society Project. She is also an activist, writer, and teacher who founded and directed Project Darya, an initiative aimed at documenting the lives of Muslim women who stand at the intersection of religion, culture, and politics.
Being a scholar of law, what aspects of the judicial system in India do you think have empowered women in recent years?
When you say what aspects of the judicial system, there is on one hand the structural aspects of the judiciary like the number of female judges, the number of female advocates, the courts being a women-friendly place, and the structure of the judiciary being more accommodating to women. On the other hand, we have bills and laws and policy documents that have come into place in the last few decades that all speak about women empowerment.
Let’s speak about representation first because that will be a shorter answer – the struggle of women in law, which has predominantly been a male dominated space, is definitely an ongoing one. In terms of the numbers, you would be astonished to see that even after 70 years, the number of female judges that have sat together on the Supreme Court has been 3. Which is a despicable number of women in the apex court. Similarly, if you are to count the number of female chief justices a state has had or even the total number of female judges in high courts, you would be able to count it on your fingers .
With respect to the second part, we have made ample progress since independence in so far as the law is considered. To put broader categories in where these changes have come through, they would be A. Criminal law, B. Family law, C constitutional law, D. Labor laws, and E. Miscellaneous provisions.
Constitutional protections were afforded to women since the 1950s when our makers thought it prudent to write it down in the letter of the law that your sex or gender cannot be grounds for discrimination, that you have an absolute right to equality, and you are entitled to every single opportunity, possibility, and chance afforded to your male counterparts.
On a narrower scope, there are labor laws in some states which take into account the realities where women end up contributing to a lot of manual work but are often not remunerated because they are simply not considered a full part of the workforce. So, there is the Equal Wages Act and the Equal Remuneration Act that mandatorily prescribes equal pay for equal work. However, as to how much that really is enforced in reality, is a different story. The Medical Termination of Pregnancies Act has opened the discourse on bodily autonomy and made a determination on something like abortion, which continues to be a sore topic for many western nations.
Even the Criminal Amendment Act of 2013 was groundbreaking. The backdrop of it was extremely circumstance-specific. Back when Nirbhaya happened, that’s when our lawmakers went back to the definition of sexual assault, and we still had a very archaic definition of sexual assault. Offenses had gone above and beyond that. The law was lagging behind when it came to the complexity and sheer gross and crude nature of the crimes that were becoming more and more commonplace. The idea was to revisit these definitions and the penalty provisions for the same. To introduce certain offenses and actively criminalize them. To actively acknowledge things like stalking, acid attack, attacking a woman with the intention to disrobe her. These finer nuances of the larger crimes became individual charges which could be used to book an individual.
These laws have really empowered women and given them a sense of agency. I would say we are in good hands when it comes to gender sensitivity, insofar as the law is concerned. But of course, we have a long way to go and a lot of work to be done. For example, the theory and implementation gap. Then there are natural problems that arise when you have male-dominated spaces like the legal field.
Speaking of these natural problems, where is the scope of improvement in the practicalities of the law? What are some of the legal loopholes our judicial system needs to combat to allow for such laws to be effectively utilized?
When you have male lawmakers making laws for women that are then enforced by a male police force and a male state and upheld by a male judiciary; there are problems that tend to happen.
There is a lack of empathy which makes it quite challenging for women to exist in these spaces. While the substantive part of the law may have improved, there is a lot of room, especially in the procedural part for it to be more inclusive, more gender-sensitive, and more intersectional in its approach.
With respect to the legal loopholes, there is a huge gap between what’s on paper and what’s actually happening. A note to remember is that the law does not exist in isolation, it really mirrors society. So for an inherently patriarchal society, it would be fool-hardy to imagine, you could just legislate something “radical” and expect to see a change overnight. Thus, there are a fair amount of legal loopholes our judiciary needs to address. One being the space which is somewhat exceedingly occupied by men – we need to have more female lawmakers. Additionally, we need to have a more sensitive procedural system when it comes to aspects like cross-examination and a more intersectional understanding and reading of the law.
How much of an effect can law have on a society that is based on dogmatic traditions and values? For example, the Sabarimala case was first heard by the Kerala High Court in 1990 and the Court restricted women of certain ages from entering. Only almost 20 years down the line was the verdict reversed. Is this because of a general shift towards feminist jurisprudence in recent times?
We can perhaps have an hour-long discussion on whether law mirrors society or society mirrors law and we would not be the first two people to be talking about it! Far from the days of the first thinkers and the first intellectuals, society has been talking about who caters to who, and it’s really the chicken and the egg debate.
How much of an effect can law have on society? A lot really, this is a glass half full-half empty situation. The law is a middle ground – while it acknowledges a lot of the cultures and traditions a society is based on, it also has the power to envisage a more pragmatic, more rational, and more forward-thinking society. You can never have a set of laws divorced from the ground reality, whether we call it dogma or traditions – it’s really our choice. So you have to strike the delicate balance of what is and what you ascribe it to be and imbibe all that in a set of morals, rights, and duties.
Sabarimala is a case in itself, but whether there is a shift to feminist jurisprudence – is there really? Because of course a lot of scholarly work is happening in the field and I do see a lot of people talking about it insofar as scholarship in the west is concerned. But I really don’t see much of feminist jurisprudence being put into action in India. I would say it’s wishful thinking. Maybe a few decades from now, we would be talking about a more feminist interpretation of the law. We are beginning the journey. We are beginning to acknowledge that maybe we need to view the law from a more egalitarian lens.
Niharika Mehrotra is a second year undergraduate student pursuing a degree in Political Science from Ashoka University.