A WORKING woman is a ‘housewife first’, said a recent judgement from the High Court (HC) of Karnataka. The HC was approached by a woman petitioner after her passport application was rejected by the Passport Office on the grounds that she had not disclosed her employment with SBI in the application form. The Court ruled that there is no instance of suppression of facts, as a woman is a housewife first, implying that she may or may not choose to disclose her other occupations.
While this ruling might have provided the petitioner with much relief and saved her the bother of re-applying for her passport, such a statement from a HC is fraught with danger for the Indian woman. On the one hand, it recognizes that housework is an occupation in itself but on the other, it presumes that a married woman is primarily a housewife, rendering her other occupations as secondary. Does this then suggest that men’s domestic roles are irrelevant? And what of unmarried women who run households? As housework itself is not really valued, a statement like this unwittingly demeans women. Such presumption is indeed beyond the realm of law and comes from deeply held values which permeate the process of adjudication so subtly, that it leaves us pondering where facts end and judicial perceptions and affinities begin.
After all, it is the very same argument about a woman’s domestic role that has been used to deny her education, income, property, dignity and freedom of mobility for generations. It is the same line of “reasoning” that has been used to justify dowry which in turn has led to much mental cruelty, domestic violence and female foeticide. Therefore, it is not a statement that can be taken lightly, in any context.
In an even more disconcerting judgment this week, a HC judge ruled that “a husband advising his wife to be more compatible with the family and take more interest in domestic chores” cannot be considered an act of cruelty. This, in a case where the woman committed suicide as she could not endure the “chiding”. Her suicide itself has been referred to by the court as “ a careless and unmotherly attitude”!
That such perceptions of women emerge in judicial decision-making is particularly disturbing, especially as they recur time and again, suggesting a institutionalized pattern. A nationwide study by Sakshi conducted a decade ago revealed that judges carry leanings, sensitivities, as well as prejudice and bias about women’s identities and roles. Through interviews of judges, lawyers, litigants and witnesses, as well as rigorous analysis of the texts of several judgments from five states (including Karnataka) the extent of judicial gender blindness came to light.
Husbands emerged as protectors and bread winners and wives as home makers in judges’ world views, with 79% of judges attributing this to Indian culture. With regard to domestic violence as well as sexual assault, 64% of judges felt that women must share the blame for violence committed against them with 27% of judges attributing domestic violence to a wife’s provocation (husbands never provoke wives!) and 40% of judges attributing it to alcohol. Only 27% of judges were able to see domestic violence as a result of unequal power relations in the family and 51% of judges felt that a slap to his wife by a husband on one occasion in the course of their marriage, does NOT amount to cruelty.
Such patriarchal values are not unique to the Indian justice system. Justice systems in Canada, Australia, the US , UK and South Africa have made (and still make!) tremendous efforts to help judges address issues of gender, ethnicity and race that are deeply embedded in justice systems. The contributions of feminist legal theory, critical race theory, social movements, methodological advances in judicial behaviour research and training were substantial in all these efforts. Today, there is documented evidence from various parts of the world to show how rigorous training has helped justice systems revisit courtroom language, procedures, sentencing, adjudication and judgments.
Back home, the Sakshi study led to a series of workshops for judges in collaboration with Judicial Academies and Legal Experts from Canada and the UK. Judges from these countries shared how research and training have helped foreground the hidden forms of racism and sexism within justice systems itself, uncovering how “victims” of social attitudes are doubly penalized while accessing the courts. As a result of these joint deliberations, judges from South Asia slowly began to concede the need for such interventions here as well.
We have come a long way since then. Gender training for judicial officers is no longer a shocking matter. After the setting up of Judicial Academies in various states, the scope and potential for such training in India has increased manifold. Social movements working with women, dalits, the displaced, sexual minorities, victims of genocide etc., have all engaged with the judiciary in diverse ways. Judges too have ventured into judicial activism, championing causes from environmental protection to sexual harassment to the public distribution system to “questioning” of the legislature on constitutional matters.
Yet, judgments like these about a women’s identity or woman’s “unmotherly” suicide, are grim reminders that there is a long way to go. The cruel irony is that judges “know” what women endure and 63% of judges have even said that if they could imagine one more life, they would choose to be born men, not women. Dealing with values that operate insidiously is never easy and tackling such issues in an institution like the judiciary seems a forbidding task. But that can hardly be a deterrent, when the lives and dignity of half our populace is at stake.