Family courts uphold family ideologies, not gender justice

Demands were made to establish family courts, and the Family Court Act was enacted in 1984. The law provides for specialized forums to deal with ‘matrimonial conflicts’ and not domestic violence. These are designed to adjudicate matters such as divorce, custody suits, maintenance, restitution of conjugal rights, and connected issues. The goal is to make the courts accessible and less intimidating for women through dispensing with lawyers, legalistic jargon, strict rules of procedures, and standards of evidence.

These courts depicted mediation as an alternative to the patriarchy-inspired adversary system. This is preferred by many because of its reputation to provide for a better hearing. Yet this system could not aid in reducing violence or enabling justice for women. Studies have shown that the family courts are not free from difficulties like backlogs, the exploitative commercial approach of lawyers, long drawn-out battles, multiple court proceedings, and the insensitive approach of officials.

Family courts were created with a view to avoid cumbersome litigation and replace it with samjhauta, or ‘brokering compromises’, in order to achieve efficiency and to shed the burden of the law. These courts mandatorily offer coercive persuasions to forcefully push women back to the violent families, to ‘adjust’, to ‘compromise’ to ‘preserve marriage’, even if it endangers their life and limb. An idea that is constantly being pushed is that the family is equipped to protect women while underplaying violence in it. Perhaps it is easier and more economical to compel women rather than question a man’s violent behavior. What is erroneously strengthened is the belief that women prefer to stay within abusive households, and therefore through ‘forced compromises’ they are compelled to accept the violent situation without any guarantee of their safety or security. No options are offered outside the domain of the ‘sacrosanct’ family. The rhetoric of ‘counselling’, ‘mediation’ or ‘settlement’ reiterates the regressive family ideology rather than protecting women from violence or providing psycho-social support to victims. The focus on settling ‘family disputes’ could not deal with the serious violence women face. Family courts negate women’s experience of violence rather than providing justice. Theoretically, an adversary system is replaced to resolve matters expeditiously and harmoniously, but in reality, the criminal justice system is twisted to adjust to the tenor of the patriarchy.

The alternative dispute resolution system diluted the seriousness of domestic violence in various ways. The language itself deliberately lessens the gravity of an offense committed within the chardiwari of the household. The term ‘dispute’ entails that two parties are equal, as compared to the term ‘violence’ which implies an abuse of power. The concept of parity among parties on unequal footing is introduced silently by the slyness of the patriarchal forces. No attempts have been made to question the inequality in the relationship. This misconceived approach overlooks the fact that conciliation as a technique poses grave problems, as it overlooks the concept of power within the relation. It expands the state’s control over individual behavior within families, and more specifically, it is at times being used to cement the norms of a ‘good wife’, ‘good mother’ or a ‘bad woman’. Further, denial of anger and the command to forget the past and live in the present generate dissatisfaction and give rise to a feeling of injustice. The law has reinforced patriarchal oppression while discriminating against women.

Mediation avoids questions relating to power, property, and violence within a relationship. The use of coercion in a situation when two parties are not on par creates problems rather than resolving issues. This process of ‘coercive harmony’ as explained by Laura Nader destroys rights by limiting discussion of the past. It prohibits anger, curtails freedom, eliminates choices, and removes protection of the law. It ignores a ‘victim’ status and compels a woman to compromise her health, life, or limb. Mediation within marriage does not address the structure of power located within the relationship and ignores the fact that parties in conflict in no way operate within the universe of ‘balanced bargaining equity’. It does not satisfy the survivor’s need for justice. Rather, it normalizes and trivializes the violence in everyday lives and compels survivors to curtail their emotions and hide the resentments that arise when they face abuse. During the process of mediation, a woman is vulnerable to threats and harassment and is under extreme stress and pressure, yet the reconciliation procedure does not consider these facts. Mediation overlooks legal entitlements and ends up denying justice to women who have less bargaining power and perhaps lack the capacity to negotiate.

Another choice offered is ‘settlement’, where a victim is left with no other alternative but to fend for herself and her children in lieu of a meager amount of money, if any, offered by the violent husband, or she may stay at her maika or remarry. Therefore, these so-called ‘women-friendly’ adjudication spaces failed to address the concerns of the victims of violence. In other words, these courts are ‘family-centric’ rather than ‘victim- or survivor-centric’.

This approach rejects the notion of making survivors economically self-sufficient or offers options to lend socio-economic support to victims. The patriarchal imagination failed to provide distributive justice or material relief and support to the abused wives through a single-window mechanism despite the knowledge that a comprehensive rehabilitative package is essential to remedy the situation of violence. The bold notion of challenging male dominance while improving the status of women or providing innovative solutions aiding survivors has not been imagined as an alternative by the state or society.

From my book Women and Domestic Violence Law in India: A Quest for Justice, 2019 Routledge

p 59-60

Death Penalty or Victim Centric Justice System?

 Death Penalty or Victim-Centric Justice System?

04/02/2020

For the past few days, since the Supreme Court awarded the death penalty to four convicts, the media headlines are screaming for the blood of rapists who brutally gang-raped Nirbhaya or Jyoti Singh on 16th December 2012. Heated discussions are going on regarding the execution of convicts where several experts and activists argue against the death penalty, while there are those who are in favor of it. However, what is ignored in this intensive debate is the fact that it is essential to ensure the certainty of punishment rather than stressing the severity of punishment. Secondly, this debate diverts attention from the plight of victims, survivors, and their families who are the crux of the criminal justice system. This essay suggests that the need is to focus on the victim-centric approach. Making violent men accountable for their criminal actions, guaranteeing fast-track quality hearings, having proper witness and victim protection programs in place, identifying the rights of victims, rehabilitation and safety plans for victims of violence, and above all eliminating rape culture are some of the measures that are required to ensure that justice is done effectively and efficiently. 

Criminal Justice System is Not Victim and Survivor Centric  

Recently, Jyoti Singh’s mother Asha Devi reacted furiously to Indira Jaising’s remark to forgive the rapists. Later, she claimed that convict’s lawyers mocked her saying that ‘hanging has been postponed till eternity’. The emotions portrayed by Nirbhaya’s mother is not uncommon and point out to the frustrations of being a victim in the system that victimizes a complainant. Loopholes in the system allow the accused to exploit technicalities to delay the proceedings as done in this matter, while at the same time, in this case, the state is permitted to push its political agenda by forcing execution. The only party which is suffering in this tussle is the victim’s family. 

The situation in this matter and in many other similar matters where women's complaints against violence reflect that the criminal justice system in India is not victim-centric rather it is law centric and state-centric where the rights of the victims and survivors are not protected or cared for. A complainant may expect retribution, restitution, or rehabilitation from the criminal justice system depending on her individual frame of mind. However, often the system never ensures any of these and pursues the case in its own way based on legal technicalities, complex procedures, or vested interests while ignoring the plight of the victims. 

In fact, in the current scenario, the status of a complainant of crime is reduced merely to a witness, once she sets the ball rolling when she files a complaint. Crime is imagined as an offense against the State and attention is being paid to penalizing the guilty while the victim or the survivor is forgotten in the process. A victim is an ally in the process of justice and in restoring law and order, yet, tragically this fact is ignored by the lawmakers and implementers. A survivor is not allowed to participate in the process of trial apart from giving her statement as a witness. 

Frequently, a victim or survivor is made to run around from pillar to post to seek justice, from getting her FIR registered to get her medical examination done, to giving her statement and evidence and yet she is ignored when the decision is pronounced in the case. No empathy is shown to the victim and her voice is not heard during the criminal trial. The criminal justice system is insensitive and apathetic to the plight of victims. The irony is that the purpose of the existence of the criminal justice system is to provide justice to the victims of the crime, but victims remain as neglected entities in the entire process. No remedy is ensured for the trauma and pain a victim undergoes and the system in no way empathizes with the sufferings of the survivors.

 Often, in a patriarchal society, the accused who occupies a privileged position in society, roams around with impunity because he knows that the system is weak. From reporting of the crime to conviction, various factors operate to undermine the process of investigation and trial. Besides rape victims are being stigmatized in the social context. Rape survivors face huge problems in the police station, during medical examinations, in courts and in the community due to the insensitive mindset which operates at every level. State agencies frequently collude with the powerful to deny justice to the victims. Shoddy police investigations, inadequate witness protection, prevailing biases in terms of caste, class, gender and religion, and cumbersome court proceedings, all act to disempower the victims and survivors. Delays in the trial of cases are frequent and there is no strategy in place that could ensure certainty of the punishment to the accused. 

Bhanwari Devi’s case is an example of such systemic discrimination, where after decades, she could not get justice. Though the Supreme Court formulated Vishakha Guidelines after the Public Interest Litigation is filed and later the Sexual Harassment at Workplace Act has been enacted in 2013, Bhanwari Devi’s appeal against the initial rape case is pending till today where the trial court has acquitted all accused. Women’s organizations in India though advocated for the enactment of sexual harassment law but could not help Bhanwari Devi to get justice. There are many such similar cases where women victims or sexual violence and harassment have not received justice and where the matters are suppressed in the police stations or in the courtrooms. 

People in positions of power frequently take steps to silence the victims. Defamation cases are being filed against the victims by the offenders who may have better access to resources. In several countries, the concept of SLAPP (Strategic Litigation Against Public Participation) has been recognized and provisions are being put in place to counter frivolous lawsuits that are used to harass the victims, however, in India no such remedies have been thought of. Rather the Indian legal system does not recognize this concept. Therefore, often, law and courts are being used as tools against women who attempt to raise their voices by accused men who are influential, resourceful and powerful. 

In India, the focus is not laid on actually addressing the concerns of the victims or reforming the system, but every time when a case of sexual violence against women came to the limelight, what is stressed is stringent punishment. Rather than initiating steps for proactive and restorative justice what is pushed is retributive justice, perhaps because it is much easier to raise demand for strict penal provisions rather than actually taking corrective steps to ensure certainty of punishment in a fast manner while holding the violent men accountable for their criminal actions or to provide relief to the victims and survivors. What is ignored while making demands for strict laws is the fact that stringent criminal laws empower the police to abuse the process of law rather than imparting justice to the victims or survivors of the crime.

The death penalty is not a solution to eliminating sexual violence 

Human rights organizations as well as women’s organizations in India and elsewhere advocate for abolishing the death penalty and today 140 countries the world over have abolished capital punishment, in law or in practice, except a few. Populous among these are Saudi Arabia, America, China and Indonesia. Several international human rights treaties regulate capital punishment by focusing on the right to life. For instance, the International Covenant on Civil and Political Rights (ICCPR) does not talk directly about the abolition of the death penalty but under Article 6, it guarantees the right to life and contains safeguards to be followed by signatories who retain the death penalty as a measure of punishment. It is argued that the state cannot be empowered to take the life of individuals. 

Similarly, Article 37 (a) of the Convention on the Rights of the Child explicitly prohibits the use of the death penalty against any person below 18 years of age. The UN Convention against Torture is also used as a source of jurisprudence for limitation on the death penalty and the imposition of capital punishment is found to be violative of the prohibition against cruel, degrading, and inhuman treatment. Moreover, it is realized that the execution kills the criminals, not the crime. 

Death Penalty and Law in India 

In India, the State is quick to favor the death penalty because it looks like a tough stand and helps the ruling party or opposition to play with public sentiments for vested political gains, but in actual practice, it does not help to reduce the rate of crime. The present government recently has taken steps to amend the POCSO Act to include the death penalty for sexual offenses against children, however, the crime rate against children has increased. 

The Supreme Court of India, in several cases, has enshrined the principle of `rarest of rare case’ for imposing the death penalty depending on the facts and circumstances of the case and since then life sentence is the rule whereas capital punishment is an exception. Though, recently, the Court expressed that this principle is judge-centric and subjective biases may creep in while granting commutation. 

The Law Commission of India in its 35th report on Capital Punishment in 1967 recommended retaining the death penalty “based on existing socio-economic cultural structures (including educational levels and crime rates) and absence of any Indian empirical research to the contrary”. In its 187th report on the Mode of Execution of Death Sentence in Incidental Matters in 2003, the Commission examined the limited context of the mode of execution and could not address the “substantial question of constitutionality and desirability of the death penalty as a punishment”. However, it is only in its 262nd report that the Law Commission in 2015 recommended “to move towards abolition of the death penalty” and recommended that “the death penalty be abolished for all crimes other than terrorism-related offences and waging war”. 

Justice JS Verma Committee set up in 2012 immediately after the gang rape and death of Jyoti Singh, in its report noted that the death penalty for serious crime as rape may not have a deterrent effect. It made various other recommendations to eliminate sexual violence against women, many of which are not implemented by the state. Several women’s and human rights organizations have also asserted that the death penalty is no answer to rape as it reduces reporting and there are more chances that the rapist could murder the victim so that she cannot make a complaint or could recognize the perpetrator or could give evidence against him. 

In terms of executions in India over the past few years, the number of people who have been executed has gone down. Dhananjoy Chatterjee was executed in 2004, after the execution of Auto Shankar in 1995 in Salem. After 2004, for eight years there were official moratoriums on executions of death sentences until Ajmal Kasab was hanged in November 2012. Two executions have happened since: Afzal Guru was executed in February 2013, and Yakub Memon was executed in July 2015. Recently in 2020, the Supreme Court has awarded the death penalty to the four accused in Nirbhaya’s case, however, the case is still pending as the accused persons are trying to exhaust all remedies available to them

Moreover, while pronouncing its decision in the matter of State v Mohd Afzal, the Supreme Court noted “The gravity of the offense is of a magnitude that the collective conscious of the community is so shocked that it will expect the holders of the judicial power center, to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty”. (para 448) Hence, in most of cases, death penalty is awarded more because of outrage rather than seriously considering the questions relating to the rule of law. Also, the questions regarding the hanging of Afzal Guru have been raised recently when a senior police officer Davinder Singh is arrested and the circumstances depict the abuse of the process of law by police. Thus, in short, the death penalty neither could have a deterrent effect nor it could reduce the rate of crime. Also, the efficiency and effectiveness of capital punishment is questionable. Frequently, the process of law is being abused by the police while those who may have committed the crime roam freely. 

Data shows that tough criminal laws have been used to target the poor and marginal sections of society. Amnesty International India in its report ‘Justice Under Trial: A Study of Pre-Trial Detention in India’ had stated that “India’s undertrial population has a disproportionate number of Muslims, Dalits, and Adivasis”. The National Crime Records Bureau in its 21st Prison Statistics in India - 2015 report, recorded that over 55 percent of the undertrials prisoners in India are either Dalits, Adiviasis or Muslims. A study by the National Law University, Delhi shows that the majority of prisoners on death row belong to economically and socially vulnerable groups. Long trials, an ineffective investigation by police, forceful biased confessions, subjective biases of personnel,  prejudiced policies, poverty, and lack of legal literacy or lack of awareness about rights are many factors that hamper the process of a fair trial. 

Other studies also show that the death penalty is not efficient and only in less than 5 percent of cases death penalties awarded by the trial courts were confirmed by the high courts or the Supreme Court. Further, in 162 cases where the death sentence was awarded in the year 2018, only 23 were confirmed by the high courts and the Supreme Court which heard 12 death penalty cases in 2018 confirmed the death penalty only in one case. There are 371 prisoners on death row by the end of 2017 and the oldest case pending is since 1991. Thus, the manner in which the legal provisions are abused by hose in highlights the compelling need to overhaul the system. The purpose of the law is to provide justice to the victims of crime, reduce the rate of crime and prevent it from happening. The law cannot be used as a tool by the elite and powerful to push marginalized populations to the brink. 

Rape and Capital Punishment 

Apart from ethical and humanitarian arguments against capital punishment, there are other reasons which hamper the effectiveness of the justice system when the victims of the crime are women. Rape is a ubiquitous phenomenon where women across the spectrum are being assaulted, dalit, tribals, poor women, women in unorganized sectors, and women in conflict regions, and, frequently powerful men easily get away in such cases. In several cases, police have protected the culprits while victimizing the victims. The conviction rate in rape cases is not high in India and often critical evidence is destroyed while witnesses are being influenced during the trial. Hence, it may be said that it is easy to demand the death penalty for rapists, yet such demands indirectly harm the victims and society as often, the victim may either be murdered by the perpetrators, or police may not book the culprits, and even in situations when the matter reaches to the court, the judges may sympathize with the culprits and may acquit them on flimsy reasons as seen in many other cases adjudicated upon earlier. Courts have a history of exonerating men especially powerful men deploy all resources, connections, and positions to influence the investigation and trial.

Eliminating the Rape Culture 

Rape is a tool of patriarchy where a male act of violence is wrongly covered under the garb of honor, morals, behavior, or character of a woman. Chilean feminist anthem which spread rapidly around the world recently highlighted the fact that the state around the world has failed to deal with violence against women because the state is a part of a patriarchal culture that is oppressive. And this is true for India too. The culture of toxic masculinity exists in India where those who are privileged are granted immunity by the system and rather are protected by it. 

Political parties in India across the spectrum, have been playing with public sentiments and emotions for their vested political gains and are hardly taking action to genuinely ensure the safety of women. Women’s safety is being raised as an issue in elections but none of the political parties have actually addressed the real concerns by making schemes to eliminate rape culture or to reform the criminal justice system. In fact, these leaders justify and perpetuate violence directly or indirectly through their actions or words. No debates are being held to make the system victim or survivor friendly. Rape survivors of the family of victims of rape and murder are being made to run around in police stations and courts. Meanwhile, the rapists and murderers fearlessly enjoy impunity. 

Also, discourse on capital punishment diverts attention from the embedded structural misogyny while focusing on the rhetoric of `protecting women’ instead of making violent men accountable for the crimes. Death sentences in no way eliminate violence against women. The process of justice has no shortcuts. The need is for long-term reforms. The failure of the state to invest in awareness, sensitization, regular continuous training, proper infrastructure to ensure a strong justice system or enhancing measures to ensure women's safety and security cannot pave the way for shortcut gains for vested interest. 

Blaming the victim is an easier way but it is not a solution to eliminate crimes against women. Essential is to lend an empathetic ear to the voices of victims and survivors and to recognize their legitimate needs. Explicit standards for fair treatment of the victims and survivors are essential to protect the interest of complainants. The need is to recognize the formal rights of the complainants in the criminal justice system. Strengthening the role of the victim implies strengthening the position of law enforcement agencies and the prosecution in an adversarial system.

Recognizing the Need for Victim and Survivor-Centric Approach 

The United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power in 1985 recognizes the fact that the victim should be treated with compassion, respect, and dignity. Also, it states that a victim is entitled to access to justice and prompt redress for the harm she has suffered. In India, hardly any research has been done on the victim-centric approach in terms of rehabilitating the survivors while restoring dignity. 

Under section 357 of CrPC, the courts could grant compensation to the victims of crime. Nirbhaya funds have been created to provide relief, rehabilitation, and compensation to rape victims. Several states have framed the rules to assist victims. However, experience shows that hardly these funds have been used by the state for prescribed programs such as developing the Emergency Response Support System, Safe City projects, strengthening forensic laboratories, Central Victim Compensation Fund, Cybercrime prevention against women and children, One Stop Center Scheme, Universalization of women helpline, Mahila Police Volunteers or other projects. In fact, 90 percent of funds are lying unused. The figure for the non-utilization of allocated funds by the states is indicative of the lack of political will to ensure the safety of women. The state, the media, or the civil society organizations when addressing the issue of the death sentence do not highlight the issue from the perspective of the victim of crime or advocate for victim-centric reforms and the victim therefore tragically remained as a neglected entity in the justice system in India.

In short, it may be said that the criminal justice system as exists today in India is elitist in approach and excludes victims and survivors, it is anti-poor and anti-women. The need, therefore, is to revamp the existing system to make it transparent, accessible, accountable, consistent, and diligent while ensuring the dignity and rights of the victims and survivors. Negating the human rights of victims is tyrannical and a murder of justice. More than the demand for capital punishment in rape cases, what is required is the emphasis on a victim-centric approach, certainty of punishment despite the position, power, background etc, of the accused, and importantly to hold the perpetrator accountable for his crime. To maintain the integrity of the system, the need is to invest in fast-track courts, empower the victim to influence the key decisions and play a crucial role during the trial, appreciate the right of the victims to be informed, sensitization and training for police and judiciary at various levels, police and judicial reforms, to ensure a fair trial and maximum conviction rate in crime against women cases, greater allocation in terms of setting up a one-stop crisis center, having a strong witness protection program in place, overhauling child protection services, adequate compensation and protection to victims and survivors and above all eliminating the rape culture are some of the measures that could reduce the rate of crimes against women. Justice entails empathy and consideration for the victim and her family and Indian law needs to take the plight of victims and survivors into account besides focusing on the implementation of the rule of law. 

Shalu Nigam is an advocate, researcher, and activist working at the intersection of gender, law, governance, and human rights issues. She is awarded a Senior fellowship by the ICSSR, New Delhi, and is connected to several organizations such as PUCL, CWDS, and Indian Social Institute, Delhi among others. She has published several articles and books, the recent one is Women and Domestic Violence in India: A Quest for Justice. She is also a co-author of The Founding Mothers: 15 Women Architects of the Indian Constitution. 

https://countercurrents.org/2020/02/death-penalty-or-victim-centric-justice-system/