Home 
Publications Catalog Online Publications ADB Review Article
Gender Justice
|
Gender perspectives are vital in considerations of legal reform, but bringing them to the forefront of the reform agenda has sometimes been a slow and difficult process, according to the Chair of the West Bengal Commission for Women (WBCW).
Speaking at an Asian Development Bank (ADB) legal symposium in January, Professor Jasodhara Bagchi reminded delegates —including members of the judiciary and judicial reform specialists from throughout South and Southeast Asia—thatsociety could not afford to forget about “getting gender justice into the rule of law.”
WBCW was established through a statutory act in 1992. An autonomous organization, WBCW deals with women’s interaction with the legal system, the judiciary, and the police, examining a range of issues, including dowry prohibition and rape law.
Ms. Bagchi—who is also a former professor of Jadavpur University’s English Department and its School of Women Studies in Kolkata—outlined challenges in implementing access to justice reforms.
“We live in an unequal world in which several social categories of discrimination have upheld the world order, creating a mess and havoc all around,” she told delegates.
“Of the well-known categories of class, caste, ethnicity, race, and dominant and subordinate religious communities, the overarching nurturer is, as one might expect, the oldest surviving category of inequality: gender.
“Internationally, nationally, and locally, gender cuts across all the categories that produce discriminatory mind-sets.”
India is currently preparing its second report for the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee in the United Nations.
This is the one document in which the women’s movement has managed to access women’s rights as human rights. But it has not always been easy, Ms. Bagchi said.
She suggested that the history of women’s struggle for recognition as full citizens remains unmapped, and the entire contestation of women, whether propertied or not, within the domain of law and governance has escaped the attention it deserves.
“The judiciary stipulates, amends, and interprets the legal machinery, and the police act as a law-enforcing agent in this complex terrain of postcolonial states of the Asian region,” she said.
“Feminist common sense has made it clear that gender division of spheres has deprived women of equal access to these categories of ruling.” According to Ms. Bagchi, both the legal machinery and law enforcement agencies are meant to belong to the “public” sphere, while women clearly belong to the “private.”
She said the colonial legacy has added distortions that have made these categories more intensively defined by gender.
“We have ‘personal laws’ and in women’s lives most of the issues that relate to law are governed by personal laws that are not universal,” she said. “Unlike criminal laws, personal law is still bound up within the specifics of communities.”
In India, at least, she said, the women’s movement and judicial movement have had “originary” relationships. “In 1829, Rajah Rahmoon Rai convinced the colonial government that it should legislate against the burning alive of widows on their husband’s funeral pyres in what was the anti-suttee daho legislation. Ishwar Chandra Vidyasagar persuaded the British colonial powers to pass the Widow Remarriage Bill of 1856, legislating against keeping widows in permanent widowhood,” Ms. Bagchi told delegates.
A symbiotic relationship existed between the judicial movement and the women’s movement in South Asia.
In police stations in India, women are often perceived as “available,” said Ms. Bagchi. Their sexuality is seen as the property of the law-enforcing agents. Women are automatically subjected to a mind-set of social inequity.
“... As one might expect, the oldest surviving category of inequality [is] gender“
- Jasodhara Bagchi
Chairperson West Bengal Commission for Women
She cited cases that “highlighted the need for sensitizing the entire law enforcement machinery and the justice delivery system to the far-reaching tentacles that stand in the way of gender justice being part of the rule of law.”
Ms. Bagchi cited the case of a young dalit woman who was raped. The court verdict, she said, was that the act could not be called “rape” because, as she was a dalit woman, she had to be a woman of easy virtue.
Four celebrated law professors challenged the verdict. Rape laws were amended on demand from the women’s movement. “Custodial rape was turned into the worst offense,” she said.
Discussions about making the judiciary and the police independent and autonomous must consider—and bring into a central position—the question of gender perspective.
There was a need for the rapid disposal of cases involving women, Ms. Bagchi said. “Some rape cases have taken 7–9 years to dispatch. If women can have their cases disposed of rapidly in their personal law matters through family courts, gradually the entire legal machinery will pick up the need for these speedy disposals.”
Justice reform in India must adopt international best practice: the lives of women in developing countries, especially disadvantaged women, once catapulted out of the safe boundaries of a family, are precarious, she said.
“Such women may not have a space from which to conduct a long, drawn-out battle for justice. When such a woman succumbs, there is culture-specific terminology, such as dowry deaths.”
Women often succumb because they have nowhere to go, she said. The impact of patriliny on women’s lives has not been adequately gauged. “Being displaced from her natal home, a woman’s right to it remains fraught with insecurity and incipient violence. This is also abominably true of women who have been raped or trafficked.”
India’s Family Courts Act of 1984 provides for the establishment of family courts with a view to promote conciliation in—and secure speedy settlement of—disputes relating to marriage and family affairs.
WBCW published the first study of family courts in West Bengal that, Ms. Bagchi said, highlights “the inertia of the legal system and how this thwarts the relief that women may expect from it.”
Ms. Bagchi told symposium delegates that family courts were inadequate in space, and that the court “is conducted exactly like a normal court: this is not the spirit of a family court.”
She urged reformers to remember to reform the physical space where a new kind of justice can be dispensed. Throughout India, a Legal Services Authority (LSA) extends from the national to the subdivisional levels in the districts of each state. Particularly proactive in West Bengal, LSA is seeking to provide free legal aid to women.
“This is one of the major hurdles women face in the domain of rule of law,” Ms. Bagchi said. “Women come to WBCW and say, ‘We have no money. How can we go to court?’ Free legal aid must be made available to the most disadvantaged sections of the community. With gender justice, it is not enough to be confined to the world of law and its enforcement alone. The gender perspective must be taken into account, and that is where social complication lies, but where justice also lies.”
This article is based on the speech “Towards A Gender-Just Rule of Law” delivered by Jasodhara Bagchi at ADB Headquarters on 27 January 2005.
Go back to current issue
| © 2008 Asian Development Bank Privacy | Terms of Use |
 Top of page |