Court of Good Intentions

India now has special courts trying cases of crimes against women. Is this a sound strategy to rid the system of judicial sexism?
Judiciary
LADIES ONLY  West Bengal reports the highest number of crimes against women in the country and so it is no surprise that India’s first court to deal exclusively with such cases was set up here in Malda town (Photos: RONNY SEN)
TOO GOOD TO BE TRUE  Malda’s special court may not shield women like Deepali, a rape victim, from unfair questions on their moral conduct

Malda town, or English Bazaar as some know it, is a dismal place. But the stretch of countryside leading to this railway junction in West Bengal is certainly picturesque, with water bodies surrounded by date palms. The Farakka dam, brimming with water after a spell of rain, looks vast and emerald green. Much of the landscape is dotted with mango trees dangling Himsagars.

This bucolic scene contrasts with the local news that 45 infants have died at the town’s government hospital because of malnutrition in the past two months. Malda district does not have much to show by way of progress, and life here can be nasty, brutish and short. Indeed, this area has even seen cases of witchhunting, with mobs putting male and female ‘witches’ to death on ‘charges’ of their supposed ill-will manifesting itself in epidemics, poor harvests or other such maladies. Such killings count as murder under the law, but witchhunts were still being reported as of 2012.

It’s early and women are marching their children to school—some of whom have school bags but no shoes, and others who have neither. I see almost no private cars, but plenty of white sarkari Ambassadors, goods carriers and shanty houses; and no metered public transport.

On my cycle rickshaw ride from the station into town, I get a sense of the poverty around. There are heaps of rotting mango, slush after two days of rain and almost no greenery to redeem the filth of this town of 3.9 million.

The district court complex is a cluster of old British and new boxy buildings packed with stenographers and dhabas, and a busy legal aid camp. Hawkers sell gems and rusty pieces of metal that look like shards of old horseshoes for luck. For reasons beyond me, the premises also host a healthy trade of garden plants.

The bar association area looks mostly segregated. Older women advocates confine themselves to one half, where I see no men. In the other, there are some young women working away industriously who do not seem ill at ease among the men.

Not unlike other courts, the daily hustle hides the gravity of the cases that are tried here. Trouble of many kinds ails West Bengal, which reports India’s highest number of offences against women, even though its female population is only the fourth highest in the country among all Indian states.

Malda’s women’s courts, which have been newly set up alongside the old courtrooms in the district court complex, are purported to be the first of their kind in the country. They include a sessions court and a judicial magistrate’s court that were inaugurated in late January this year. Of the two, the sessions court has the power to pronounce death penalties; the other court deals with crimes for which no more than three-year jail sentences may be awarded. They look like other courtrooms: cramped, with the judge’s desk on a platform, and full of old teak furniture. These functioned as the regular courts of an additional district judge and judicial magistrate until recently, but have been rechristened and reassigned with shiny new plaques declaring that they are ‘exclusively’ for trials of women-specific crimes. In both courts, the first clerks are women. Otherwise, the witness box—a raised square dais with railings on three sides—is the only feature that bears any sign of the drama that might go on here, and reminds me of shows on TV.

The most common crimes committed against women in India involve abuse by in-laws, and the women of West Bengal suffer more of it than those of other states. The next most frequent are molestation, kidnapping and rape. But the district judge in Malda denies that the poor state of women’s rights in the state, as reflected in crime statistics, is why separate courts have been set up for them here.

It was in the late 1970s that women’s groups first urged the government and Judiciary to institute special courts where the judge, her clerks and staff would all be female. ‘Mahila courts’ first emerged in the mid-1990s during Justice AM Ahmadi’s tenure as Chief Justice of India. These are courts where the judge may ask all men, apart from case lawyers and the accused, to leave the courtroom during a victim’s appearance; by partly relieving the victim of her inhibitions in speaking up, this measure aims to enhance the quality of evidence on record.

But these courts have largely been a disappointment in assuring women free and fair trials in cases where they must guard their dignity.

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The beginnings of the women’s courts in Malda have not been auspicious. A woman clerk with a slashed face in the sessions court is amused when I ask her about the kind of cases tried here. She points me to a register that has several rows of ‘special cases’ listed, many of which are cases of electricity theft—referred to as ‘hooking’ matters by the local judicial staff—which is rampant in Malda district, with its scant infrastructure.

It seems that while all of Malda’s women-related cases have been re-allocated to these courts, their judges are nonetheless expected to get through piles of old cases that were being processed before January.

According to Malda-based Advocate Nargis Ara Khatoun, who has often worked in the women’s sessions court, the trials remain resigned to defence lawyers—often querulous men—who are free to pursue any line of questioning to establish the innocence of their clients. The earlier sexual history of assault victims, for example, continues to be dragged into such cases; this is a flagrant breach of rules, but is often deemed ‘relevant’ to the case. According to a judge speaking on condition of anonymity, the ban on its use as a defence tactic is flouted with impunity.

At first glance this may seem odd in a state led by Mamata Banerjee, a woman who promised to adopt ‘ma, maati, manush’ (mother, earth, mankind) as her political philosophy on achieving power. But her irresponsible statements on rape since becoming Chief Minister have only fanned outrageous old attitudes of blaming the victim for somehow provoking her assault. The district judge, however, is confident that justice for women can be transformed for the better within three or four months and goals of these courts met. Going by the courts’ performance so far, this looks unlikely. For instance, at the end of March, the women’s court of the judicial magistrate had as many as 5,526 cases pending, with only 603 cases disposed of through trials in the weeks since January. Figures for the sessions court are not available.

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With the aim of meeting a plaintiff in the sessions court, I set out for the unfortunately named Goon Gaon, an Adivasi village a few kilometres from Malda. Nobody knows where this place is—not the punters in highway dhabas, not the roaming Adivasis, nor the truck drivers I ask, let alone the chemist and his compounder. Neither does my map. No one answers when I dial the police patrol. But the cops at a police station point me in the right direction.

Deepali, the 26-year old Santhal I have come in search of, lives with her aunt Shojoni Rajbhanshi in a thatched mud house with a pucca room attached that has a small ceiling fan and serves as sleeping space. The narrow corridor that leads you in from the entrance smells of mango being pickled. The house is bare but for child-like frescoes of flower motifs, a common feature across this tribal village. We sit under the whirring fan as she tells her story.

Deepali is bringing up a year-old boy who she says was conceived with her rapist. She has unpleasant memories of the sessions court’s witness box. She felt exposed, she says; everybody in the courtroom was staring at her. There were not many men around, though there were some women who listened closely as she spoke. But there was something in their manner that made her feel their interest was perfunctory, that they saw girls like her every day.

According to her testimony, the first term of her pregnancy was kept secret because her late husband’s younger brother, the accused Raton Munda, demanded that she tell no one about the ‘ghotona’ (incident). Raton had promised to marry her, and she was five-months pregnant when he reneged on his offer. Afraid, she told her aunt and said she needed shelter. She had continued to live with her husband’s family in Mahajib Nagar, a nearby village in the district, after his death because she had no male guardian (her father too was dead and her mother had remarried).

She was always seen as a burden by her in-laws, a burden made worse by her embarrassing pregnancy. The Mundas wanted nothing to do with an illegitimate child. When she’d told her in-laws that the baby she was expecting was Raton’s, she says, she was beaten with a bamboo beam as thick as the one holding up the roof under which we are seated.

Shojoni is happy to have her niece live with her, but says having two extra mouths to feed is tough. On a more dramatic note, she asks, “What is a girl like Deepali to do? Take beesh (poison)?” Deepali, refreshed after an afternoon nap, does not strike me as suicidal. She is warm, smiles readily and giggles uncomfortably at her aunt’s intensity as she handles her son tenderly.

Deepali has less sympathy in the village than she’d hoped. Local busybodies snigger at the mention of her name. About a year ago, her aunt had asked the local authority to organise a baithak, a meeting of village elders, to hold Raton to account. Deepali is willing to marry him for the sake of her son; as a Tribal woman with no money, property or male guardian, raising a child as a single mother will be far too difficult.

But Raton denies ever having had sex with Deepali. His alibi is that he was off working for a government rozgar scheme at the time of the alleged rape. The child is not his, he says, and if a ‘blood test’ calls him out as the father, he would rather go to jail than marry her. A simple state-funded DNA test could settle the question of paternity, but epic backlogs mean an excruciating wait now that DNA tests are mandatory for all sexual assault cases. So the mystery persists.

Hope for her comes in the form of an observation by the Delhi High Court in June that engaging a woman in sex on a false promise of marriage counts as rape. Yet, Deepali’s court proceedings may turn out like the village baithak, with her claim unproven.

Justice in rape cases often comes down to the victim’s word against the accused’s, says a judge critical of the police for their shoddy forensic work that makes convictions slower and that much harder to secure. Special courts, one would assume, are meant to operate in ‘fast-track’ mode, with trials undertaken without delays to lessen the suffering of victims in cases—such as rape—that involve trial-phase trauma. But these women’s courts in Malda have yet not been issued orders by the Calcutta High Court to fast-track the cases it deals with. Ironically, this facility had been in place at the old courts.

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Jawahar Raja is a lawyer who represents plaintiffs in cases of domestic violence, dowry-related abuse and sexual assault. He has worked for a women’s rights NGO and says it is too idealistic to expect that a separate court for women will fully insulate the justice system from male chauvinism. “We live in a sexist world,” he says, “And a court is not outside society; all the axes of inequality that operate in the world enter the court system too.” And women, whether in remote villages, cities or advanced societies, are judged in extreme ways—be it as victims, defendants or witnesses, often with scrutiny unfairly brought to bear on their morality, especially sexual morality, regardless of whether they are married, single, divorced or promiscuous.

Raja’s own politics is liberal, although he says it is just his day-to-day strategy as a lawyer: he has never represented a man in a rape or domestic violence case, but says that gender and class inform everything in society. He agrees that testifying in court is a bruising experience for anyone, but believes that to think that the court attendants, staff and judicial officers don’t do their utmost for the delivery of justice is wrong—even if judges are prone to biases.

With women’s courts, it was hoped that this would be set right. But the courts in Malda, for the most part, are like any other. Their personnel receive no specialised training in understanding crimes of violence and abuse, or in treating victims with sensitivity. They offer women distressed during hearings no special relief services. If at all some measures are taken, or a rehabilitation package ordered, it is on account of the judge’s generosity. And that, alas, is how it always was.