Judges, both men and women, need equality training to prevent gender biases impacting judgments
I was recently in The Hague for the launch of the Global Leadership Organization of Women (GLOW) project initiated by the International Association of Women Judges and supported by the Government of Netherlands. The participants were women judges from the international tribunals, three West African countries (Cameroon, Ghana and Nigeria) and three South Asian countries (Bangladesh, Nepal and India).
The subject was violence against women. Justice Albie Sachs of South Africa calls this ubiquitous masculinity “the only truly non-racial institution in South Africa.” We may without fear of dissent call it the only global institution which cuts across class, creed, colour and countries. The difference may only be in its degrees and shades.
All the participants agreed that the question before us is not if it is bad but if it is unequal. On a morality scale or a religious one, it could be decided that it is not bad, but on a equality scale, judges can have no two opinions that it is unequal. We considered the issue from two angles: how do we address the issue of violence, and do women judges make a difference?
We occupied a democratic space. All titles (Excellency, Honour, etc) were avoided. So were all surnames. Removal of hierarchy is the first step towards equality. What I heard may have been anecdotal, but it was universal.
A judge went to a faraway village on a legal awareness programme when she met a group of women who had not stepped out of their homes. She said the women were astonished that one of them could have travelled so far, and was so enabled.
Their movement was restrained not by choice but because that was the practice and “so it was written and so it was done. “ It was apparent over and over again from the many voices that religious and cultural practices promoted inequality. One judge said: “Custom cannot make prisoners of women.”
The women judges of one country had picked out the bad practices in their courts and had enacted a skit before all their colleagues. One judge was trying a case of a 14-year-old rape complainant, and therefore it was a case of statutory rape. He had asked the Public Prosecutor: “Look at her! Will you say she is only 14?” Such incidents were strung together in the skit. Their colleagues were shocked and horror-stricken at the extreme gender insensitivity and cried, “Such a horrible judge!” It must have been truly an educational experience. It is necessary that all judges have an education programme. Without education on the right to dignity and the right to equality of women, even a million fast track courts will not deliver justice.
The women have to address implicit and explicit stereotyping. There are well-entrenched notions of who is “a good woman.” In one of the courts the rape complainant was a bar maid and it was decided that she had no right to complain since she “was any way bad.” Remember our own Mathura [which happened nearly 30 years ago in Chandrapur district, Maharashtra]? After being raped by constables, the girl did not get justice because it was decided ‘that she was habituated to sex” and may have incited the policemen. Our jurisprudence on rape is in fact divided into the pre-Mathura and post Mathura periods.
The woman does not have to be a complainant let alone a witness. Her credibility depends on what the court thinks a good woman should be. In a case heard by two judges, one of whom was a woman, the only eyewitness to the murder was a woman who on her way to a coffee shop early in the morning. The defence counsel had begun his argument like this: “The only eyewitness is this woman who had allegedly gone to have coffee in the morning. Will any respectable woman do it? Every woman will make the coffee herself and not step out in the morning. This witness is unreliable and is a plant witness.”
It turned out, unfortunately for the defence, that the woman judge in this case had the habit of having coffee from a coffee shop. We laughed, but it is no laughing matter.
There are two things here. First, what men think is proper woman-conduct. If both had been men judges or “decent women” judges who don't go to a coffee shop to have coffee, that witness may have been termed a liar. Then, even the due process of law must depend on men and women whose minds are filled with myths and mental baggage of all shades and hence the need for equality education.
The judges from the international tribunals shared their experiences and we found that those courts had a pretrial procedure, far more resources and a firm witness protection programme which the domestic courts lacked. We realised how important a witness-protection programme is in the delivery of justice. But otherwise what was the same before both Courts was the issue of dignity and the right to equality.
One of the International Special Courts had called forced marriages a crime against humanity, and that it was really “conjugal enslavement.” They said that in conflict conditions, rape is a war crime and referred to the famous Akayesu case decided by Navi Pillai (U.N. High Commissioner for Human Rights). Aggressors may sometimes deliberately and forcibly make the women of a particular group pregnant only to change the ethnic component of that group. I learnt that immediate medical assistance to a woman on whom sexual violence was inflicted is crucial not only to get the best forensic evidence but also because if a prophylactic AIDS medicine is given to her within 72 hours of exposure to an infected man, she can avoid being infected. This was the theme, the refrain; that the woman suffers only because of her gender.
We discussed marital rape at length and understood that too here the woman has all the cards stacked against her because of socio/religious norms. The words “stigma,” “stain” and purity reinforce the belief that it is better to be dead than raped, and that an act done to a woman against her will can change the essence of her identity. All that the woman stands for, works for and is loved for cannot be erased just because a man was violent to her. That would take away her agency and reduce her to a zero. The woman judges accepted that it is not just male judges who exhibit gender-unfairness, and woman judges too need equality training. But it was clear that if a critical mass of women judges was created in every court then the compass of gender jurisprudence will veer towards equality.
(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)