Women judges, lawyers and litigants have, since India’s independence, faced hurdles in accessing the country’s court system, and shattering the proverbial glass ceiling has been a tedious task.
Let us see how the court’s environment changed for women last year and what are the scopes further.
Landmark Judgements favouring equal rights for Women:
Women's right to bodily autonomy: In a Judgment, the Supreme Court recently put a decision on abortion rights for all adult women in India to have the right to seek a safe abortion through a medical expert till up to 24 weeks of pregnancy.
There are five key aspects of this judgment that need to be shared:
Acknowledging the context of criminality: IPC criminalises accessing and providing an abortion except where there is an immediate necessity to save the life of the pregnant woman, and the MTP Act is an exception to this criminal offence.
Removal of ‘compulsory’ marital status: The judgment basically holds that what is accessible and available for a married pregnant woman should be accessible and available to any pregnant woman and that a classification based on marital status is fallacious and illegal.
Inclusive of the concept of Marital Rape: An acknowledgement has been put that a pregnancy can be sought to be terminated on the ground of it being a result of rape by the husband of the pregnant woman must be recognised.
Confidentiality: This judgment clarifies that while the need to report mandatorily remains, the identity of the pregnant person need not be disclosed in the cases of consensual sexual activity and where the minor and/or her guardian request the medical service provider to maintain confidentiality.
Relief to Medical Practitioners: It recognises the extra-legal requirements that medical practitioners insist upon before providing MTP services, only to safeguard themselves due to the context of criminality and the present law is non-inclusive.
Inclusion of Marital Rape as a Crime:
In the August 2021 Judgment, the Chhattisgarh High Court upheld that sexual intercourse by a husband is not rape, even if it was by force or against the wife's wish. This ruling has been deemed outrageous by many. Later the Delhi High Court gave a decision in favour of marital rape in May 2022.
The definition of Marital Rape is provided under the Indian Penal Code (IPC), framed by the colonial rulers.
Section 375 of the Indian Penal Code (IPC) defines the term rape as, any form of sexual assault involving non-consensual intercourse with a woman.
However, as per the law, a wife is presumed to deliver perpetual consent to have intercourse with her husband after entering into a marital relationship.
Exception 2 to Section 375 provides a non-criminal status to sexual intercourse without the consent of the wife and immunizes such actions of the husband.
The concept of marital rape is the epitome of ‘implied consent’, marital relations between a man and a woman implies to have consented to sexual intercourse from both sides.
Two-finger test questioning women’s virginity repealed: The Supreme Court held that any person found conducting the archaic and unscientific two-finger test on a victim of rape or penetrative sexual assault will be guilty of misconduct.
While doing so, the top court discontent or sorrowful that such tests continued to be conducted, and said that the test does not have any scientific basis but only ‘re-traumatises’ victims of sexual assault.
Call for Better infrastructure:
In September, the Delhi High Court ordered the State government to make facilities including separate toilets for women available to lawyers and litigants in consumer forums located in the capital.
The order was passed in light of the petitioner placing on record some photographs which revealed the abysmal conditions of the district consumer forums in Delhi-NCR.
In a significant move, the Delhi High Court also set up a rèche facility within its premises this April.
Attitudinal changes inside the Courtroom:
The Kerala High Court stressed the need for men to change their attitude, particularly when it comes to their outlook towards crimes against women. The Court, while hearing a plea for anticipatory bail by a rape accused, recorded that crimes against women were continuing to increase, but the patriarchal mindset of society was changing.
Highlighting the importance of women’s safety, the Delhi High Court called for zero tolerance to anybody who intimidates a girl, woman or child. The Court opined that society should ensure that women do not have to fear when they step out of their homes.
‘International Day of Women Judges’:
The Supreme Court this year also hosted a special programme to commemorate the first ever ‘International Day of Women Judges’.
·All women judges of the Constitutional courts and all women judicial officers from across the country were invited to join the programme online.
Gender-sensitive practices: The Courtrooms must hasten to incorporate more gender-inclusive practices in their day-to-day functioning.
It is essential that courts begin recognising challenges faced by not only those who identify as women but also Trans and non-binary lawyers.
More women on the bench: As per official data from the Government of India, only a mere 9 per cent of High Court judges across the country are women.
In fact, five High Courts - those of Manipur, Meghalaya, Patna, Tripura and Uttarakhand - do not even have one woman on the bench.
The High Courts of Delhi and Gauhati see the highest representation, though it continues to be woefully low at 17 per cent.
Sensitisation of judges, and judicial officers: The only way that women, particularly those from conservative backgrounds and marginalised communities, will be able to participate in our justice system effectively is if we ensure that courtrooms are safe spaces for them.
If women are subjected to incessant casual sexism and implicit bias, the adequate representation will remain a distant dream.
The need of the hour is to promote gender inclusiveness and equality of thought, expression and belief for women, rather than to just giving them political rights and not educating women about it.