Fighting for the Justice in the Patriarchal Courts

29 August 2017

The last few days witnessed the pronouncement of several significant celebrated judgments by the courts in the cases relating to the right to privacy, triple talaq, and the sentencing of a 20-years life term to a self-proclaimed Godman who raped women. All these three cases, somehow uphold people’s trust in courts as the custodian of the rule of law. Even otherwise, in normal parlance in India, courts are considered a temple of justice as well as the custodian of constitutional values by the common people. The courtroom is a space where domination and oppression are challenged and social as well as economic and political justice is facilitated. The prime duty of the court, hence, is to uphold the spirit of the constitution, the rights of people, and the rule of law. In fact, the democratic society places a high value on the independence of the judiciary. However, often, deeply embedded in the layered, hierarchical, patriarchal society, the courts, most of the time, reiterate and reinforce masculine values and androcentric morals while ignoring the fact that their prime concern is to disburse justice as per the constitutional and legal provisions. Patriarchy exhibits itself in various forms day in and day out in the courtrooms. The discrimination exists not only in terms of the number of men and women who get to rule in the higher echelon of the judiciary, but biases also exist in various forms in the everyday practice in the courtrooms. Patriarchal, male-dominated courts often act hostile to women’s concerns. The analysis of everyday proceedings in the misogynist courtrooms reveals the manner in which sexism operates and is reinforced, post-mortemed and reiterated in daily decisions, orders, conversation, jest, reasoning, and assumptions based on the ideology that subjugates women despite the fact that the Constitution of India guarantees affirmative provisions in favour of women. Nevertheless, the women who gather the courage to fight for justice against such oppressive culture in these patriarchal courtrooms may gain small triumph in some form or the other because of the support they may receive from several quarters and above all because of their persistence and sheer grit. It is not because the courtrooms suddenly become sympathetic or sensitive to women’s concerns or questions, rather it is the resilience of these women who persist in their struggle, and therefore they could smash the patriarchy that exists within the courts and within the society. This piece of work examines the manner in which the patriarchy operates in the courtrooms and the manner in which women are trying to overcome such male-dominated, conservative, traditional regressive notions in the courtrooms.

Nigam, Shalu, Fighting for the Justice in the Patriarchal Courts (August 29, 2017). Available at SSRN: https://ssrn.com/abstract=3028829 or http://dx.doi.org/10.2139/ssrn.3028829