NATIONAL CONFERENCE ON WOMEN & ACCESS TO JUSTICE

Transcription

1 NATIONAL CONFERENCE ON WOMEN & ACCESS TO JUSTICE A REPORT DECEMBER 10-11, 2006 INDIA HABITAT CENTRE LODHI ROAD, NEW DELHI ORGANISED BY PARTNERS FOR LAW IN DEVELOPMENT, NEW DELHI

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3 NATIONAL CONFERENCE ON WOMEN & ACCESS TO JUSTICE A REPORT December 10-11, am 6.00 pm India Habitat Centre, New Delhi

4 Partners for Law in Development (PLD) Parts of this report may be reproduced or printed for training or educational purposes with due acknowledgement to PLD. This publication was supported by a grant from Ford Foundation, New Delhi. The views expressed in this publication do not necessarily represent the views of Ford Foundation. ISBN PLD F 18, 1st Floor Jangpura Extension New Delhi Telephone Telefax pldindia@gmail.com

5 Contents Preface 5 Introduction 8 SESSION I An Overview of the Context 10 The Relevance of Women s Access to Justice Women s Movement and its Engagement with the Law SESSION II Grounding the Concerns in Experiences 14 Testimonies Findings of PLD s Study on Women and Access to Justice Sharing by Partner Organisations in the Study SESSION III Institutional Responses 25 The Judiciary Judicial and administrative reforms in relation to gender justice Gender trainings, its relevance and impact in relation to the judiciary Legal services, its scope and relationship with women s access to justice Special Initiatives and Mechanisms: the Police, the Bar, Family Courts and Approaches to Counselling and Mediation Police initiatives: Women s Cells, alliances with NGOs, gender trainings Attitudes, gender stereotypes in the Bar and responses towards gender concerns

6 Family Courts Counselling in matrimonial litigation SESSION IV Challenges for Women Navigating the Legal System 35 Sexual Assault and Rape Prosecutions Custody in the Context of Cross-country Child Abductions SESSION V Taking Stock of Changes, Challenges and Potential 38 Divergences and Intersections Between Notions of Justice in Different Mechanisms Within the Law Reflections on the Gains of the Women s Movement Inter-agency Alliance Building as a Strategy Role of National Commission for Women Closing Remarks 44 Recommendations 45 Annexures 49 Text of Justice Sujata Manohar s presentation Text of Justice Madan B Lokur s presentation Appendices 70 Extracts of Some Relevant Legal Provisions Table of Contents of the Reader Compiled for the Conference List of Participants List of Panellists PLD and its Partner Organisations

7 Preface Even after decades of engagement by the women s movement with the law, justice through the law remains fraught with barriers for women especially at two levels. On the one hand is the justice system s structural inaccessibility, particularly for poor and marginalised women. By this we mean that the legal system presumes that its users would have at the very least a certain degree of awareness of their rights as citizens, a formal education, financial resources, time and mobility. On the other hand are barriers encountered by women after their entry into the legal system. These include procedural delays, evidence that may be difficult to produce but is vital to their case, gender bias, the non-recognition of many gender specific wrongs and rights that exist within the legal system and the limitation of financial resources. Women s groups as well as the state have responded to these barriers in very diverse ways. Several women s organisations, autonomous as well as those initiated by state programmes, have over years of community work, taken on the task of intervention in women s cases, particularly those involving violence and matrimonial issues. Their approaches range from setting up alternative dispute resolution mechanisms to providing many important support services to women including legal aid. The examples of their services include not only establishing Nari Adalats, Women s Panchayats and working with the police, but also providing counselling, legal support and shelter services to the women. The state, on the other hand, has responded through law reform and

8 institutional changes. Examples of law reform include the presumption of death due to dowry reasons, custodial rape, and cruelty against women, a new domestic violence law and several amendments to Personal Laws. Institutional intervention and reforms have been brought into effect through the provision of legal aid for women, separate women police stations, family courts, counselling cells in district courts, making reconciliation an integral part of matrimonial proceedings and more recently, initiating alternative dispute resolutions within the legal system. Orientation sessions towards gender issues are now also institutionalised within the judicial and police refresher programmes. These changes are significant in terms of opening spaces for women in approaching the legal system. This option is usually not exercised as a first choice, but only when all other options have failed. The experiences with the law of ordinary women: labourers, sheltered housewives, single women, sex workers, factory workers and urban working women, are primary indicators of the efficacy of the legal system towards providing gender justice. Accounts of several experiences reported by intermediary groups assisting women in obtaining legal access indicate that justice remains fraught for many reasons: high and recurrent costs required to sustain proceedings and engage lawyers, the unpredictability of the time frame involved, countless delays, prejudices and harassment that they face in the process along with the unpredictability of the legal outcome that in many cases is far from just. NATIONAL CONFERENCE ON WOMEN & ACCESS TO JUSTICE A REPORT A study conducted by PLD with its partner organisations in Kozhikode, Jaipur and Karvi on the legal proceedings that have been facilitated by women s organisations, demonstrates the disparity between the costs incurred by women to access the system and the benefits they finally receive in terms of the judicial outcome. In their journey through the legal system, women invest whatever resources and time they may have, and are also forced to make complex arrangements for child care and meet their other social obligations. Besides the individual woman s investment, the intermediary groups also invest finances and unquantifiable support in terms of dedicated follow up of cases within and outside the court, services such as counselling, shelter and helping develop livelihood skills of the women. Even though the judicial outcomes may not match the levels of resource investment, women continue to seek legal intervention, often because this is the last and only forum that at least on the face of it promises gender justice. The study, although small in its scope, is yet another reminder to all of us that the work on gender justice through the law is workin-progress that needs to be continuously reviewed, critically assessed and re-visited. It also underlines the invaluable role of women s groups, community workers and para legals that enable women s access to the legal system, besides empowering them

9 to negotiate and restart their lives. The valuable contribution by women s groups makes their participation imperative to any stock taking on access to the legal system as well as the extent to which the justice is afforded through the law. An assessment of all these levels requires active participation by both, the state and non-state actors, such as the judiciary, police, women s groups, lawyers, counsellors and others that work towards the common goals. This conference is a step in that direction. It provided a forum for critical reflection, sharing, learning and facilitating to some extent, a dialogue between social workers, activist lawyers and representatives of varied institutions such as the judiciary, police and academia. The discussions over two days were fruitful in terms of highlighting substantive, structural and operational barriers as areas for advocacy and reform. This report captures the discussion, consolidating the recommendations that emerge from the discussions. The purpose of this consolidation is to record the contributions of the various participants whose ongoing work in this sector makes their reflections valuable to developing our understanding. This report is also put together to identify gaps to feed into advocacy and reform initiatives at all levels. Apart from the valuable engagement of all the participants, the members of judiciary and the police who participated in this conference, thanks are due to the resource pool: Uma Chakravarti, Usha Ramanathan, Kamala Sankaran who steered the action research project within Partners for Law in Development and facilitated the sessions in the conference. Thanks are also due to the PLD partners whose rich experiences have informed and concretised our understanding of the convergence and divergence between law and justice for ordinary women struggling with their cases. Finally, thanks are due to Jaishree Suryanarayanan and Aditya Swaroop for rapporteuring; to Jaishree Suryanarayanan [yet again] and Radha Dayal for preparation of this report; to Vishwajyoti for resuscitating the conference photos and Sudeep Chaudhuri for the artwork. Madhu Mehra Executive Director preface