The legal system has failed women in India. In two recent cases, we saw even lawmakers and enforcers becoming perpetrators of sexual violence or defending the accused. The chilling details of the Kathua and Unnao cases are telling but perhaps only the tip of the iceberg.
It is in this context that those who support anonymous lists such as the list of “sexual harassers in academia” have debunked the call for “due process”. They argue that due process has done too little for women who have chosen to complain against sexual harassment. There is little hope from mechanisms such as the Internal Complaints Committee established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013, which, in effect, rely on due process principles like the presumption of innocence and a standard of proof beyond reasonable doubt. The critique of due process is a sign of frustration with and disruption of the status quo. Yet, if the critique debunks due process normatively, as part of our conception of the Rule of Law, substantive equality and transformative justice, we need to reconsider the critique.
Due process, as part of the ideal of Rule of Law, means more than just a day in court for the victim or maintaining that the accused be presumed innocent until proven guilty. In fact, as part of the Rule of Law, it means that all persons in a state are bound by and entitled to the equal benefit of laws publicly administered by courts. Thus, our expectation from the Rule of Law should not only be to be governed by, but also be equally benefitted by the law. This insistence on equal benefit of the law forms a part of the thick account of the Rule of Law, which embraces human rights, substantive equality and transformative justice. Substantive equality itself is concerned with not only a redressal of structures of disadvantage, but also a sense of transformative justice, which seeks to overturn these structures and reimagine systems and practices which are defined by equal concern and respect for all.
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Abandoning the principles of due process could lead to reform that is thin on these goals and values. This is because the language of rights, especially gender equality, does not exist in a vacuum. It comes from within the package of social justice norms, including a thick account of constitutional principles like the Rule of Law. We cannot selectively apply these values to realise the goal of gender equality.
This matters to the feminist and social movements such as #MeToo, Black Lives Matter, or Occupy, because ultimately, their success depends on their transformative vision. If we are to break the cycle of disadvantage for women and other disadvantaged groups, we need to be able to posit a transformative agenda which is both critical of due process here and now, and appreciative of its normative significance in struggles for equality and justice.
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