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Commissions of compromise

By Sonal Makhija

Women’s commissions were set up at central and state levels to monitor violations against women, recommend policies and legislation and take up cases related to collective justice. But in Karnataka at least, the commission seems to be handling marital and other private disputes

Introduction

The law has always assumed a central role in women’s empowerment in India. The 1970s and ’80s in particular saw the women’s movement focussing on legal reform to improve the status of women. This period also saw an effort by the judiciary and legislature to make justice ‘accessible’ to the poor. Accessibility to the courts featured in academic and public policy debates on the law. The informalisation of formal adjudicative institutions, such as relaxation of the rule of locus standi and ‘epistolary tradition’ in the Supreme Court and the high courts was a step in that direction.

The debate on setting up women’s commissions at the national and state levels took place around the same time. It was first voiced in ‘Report of the Committee on the Status of Women in India’. The commissions would monitor violations against women, evaluate existing policies and bring women’s concerns into policy decisions. They would recommend new laws or law reforms to state legislature or parliament, intervene in cases of violation or discrimination against women, and file cases in court.

To increase women’s access to justice, the commissions also had the power to receive complaints. In investigating a matter under the National Commission for Women Act, 1990, the commissions were empowered with all the powers of a civil court in trying a suit, especially with respect to summoning anyone before them, receiving evidence and requisitioning any public records, and examining witnesses and documents.The focus was on providing ‘justice’ within the realm of a formal state-controlled justice mechanism.

Subsequent to the setting up of these commissions, however, there has been little assessment of the functioning or evolution of these autonomous watchdogs. Are these bodies meeting their objective of protecting and promoting the rights of women? How have they performed?

These were some of the questions considered in the study ‘A Review of the Working of the Karnataka State Human Rights Commissions (KSHRC) and the Karnataka State Commission for Women (KSCW)’ (1). For the purpose of this article, I will discuss the existing complaints unit and its ‘justice mechanism’ in light of the study on the Karnataka State Commission for Women (KSCW). I will not examine the nature of political appointments of chairpersons, or its autonomy or transparency that has been discussed in the report in detail.

The Karnataka State Commission for Women (KSCW)

In 2010, when my colleague Swagata Raha and I studied the Karnataka State Commission for Women (KSCW), the purpose was to evaluate the functioning of the commission within the powers assigned to it under the Karnataka State Commission for Women Act, 1995, and in light of the international principles on human rights institutions. The commission was constituted with the objective of protecting and promoting the rights of women. Did it fulfil that function? Frequent violations against Christian women on the west coast of Karnataka in 2008 (2), and the 2009 Mangalore pub attack on women pub-goers by right-wing parties (3) suggested otherwise. Since its establishment in 1995, the KSCW had done little to check violations against women in the state. Not only that, it had failed to exercise its powers to make policy changes and suggest law reforms/schemes benefiting women.

It did however have a functioning complaints cell which received and heard cases twice a week. Yet, it had achieved little since its existence. In fact, from 2007 to April 2011, the KSCW did not have a chairperson. In the absence of a chairperson, the secretary presided over the cases and was in charge of the commission’s day-to-day functioning. The Karnataka State Commission for Women Act, 1995 does not empower the secretary to discharge functions which are meant to be performed by the chairperson or other members of the commission. Of course, for most women complainants whom I interviewed as part of our fieldwork, the absence of a chairperson was of little concern provided the secretary heard their cases and they obtained relief.

Private justice and the culture of compromise

The bulk of cases received by the KSCW were essentially concerning marital disputes, domestic violence, dowry harassment, custody issues and restitution of conjugal rights. The receiving, hearing and disposing of cases made up the majority of work discharged by the KSCW. The criterion for accepting cases is that the case must involve an issue related to women’s rights. In one of my field visits, I found case workers intervening in a neighbourhood squabble between two women. In another case, a woman filed a complaint against her former landlord who refused to return her deposit after she vacated the flat. In yet another case, a woman working in a hospital filed a case alleging discrimination against hospital authorities. Cases pertaining to domestic violence were directed to protection officers or police stations in the given jurisdiction, as per the Protection of Women against Domestic Violence Act (PWDVA), 2005. Predictably, most cases relating to marital disputes were ‘compromised’, suggested the secretary in an interview. The objective was to resolve the matter and ‘save the marriage’. “The primary aim of counselling is to reconcile the parties and to avoid breaking the marriage. If this is not possible, then other steps are taken,” explained one of the case workers. The case workers essentially gathered all the facts of the case from the petitioner, and the relief sought; they then prepared the case file. 

In its daily functioning, the commission was content running a complaints unit and setting up kiosks outside family courts to assist women. But the complaints cell functioned with the primary purpose of resolving disputes. Does this guarantee ‘justice’? Much of its interventions at the time of the study were driven by a culture of compromise or taking the ‘saving the family’ approach. For women with little access to formal courts, ‘compromise’ suggested by KSCW staff, especially in cases of violence, is coercive as opposed to the granting of ‘justice’. Pratiksha Baxi, in her paper ‘Access to Justice and Rule-of-(Good) Law: The Cunning of Judicial Reform in India’, comments on the nature of compromise and the inequality of negotiation where women are discouraged from taking an adversarial position (4). The commission, much like courts adjudicating on family law, encouraged compromise.   

Was the objective of women’s commissions to transform into yet another adjudicative body redressing private disputes? How does this stand against the objective of commissions to provide relief to a wider population of women?

The overriding objective of the constitution of commissions was to improve the overall status of women in the state. Its powers -- to examine and review laws, investigate the status of women, take suo motu action, recommend and suggest schemes for women, disseminate information relating to the rights of women, and take up cases relating to violation of constitutional rights of women in the state -- stress on impacting the lives of a large body of women in the state. This includes inspecting conditions of women in prisons and funding litigation affecting women at large. The purpose is to improve women’s social and economic lives in the state.

In the case of the KSCW, it rarely exercised its powers to advise the state on law enactments, or demand that the state take action against large-scale violence against minority women in Karnataka. Both cases -- of violence against Christian women and the 2009 Mangalore pub attack -- are illustrations of the KSCW’s inaction.

Instead, with the KSCW, the emphasis is on ‘private justice’ as opposed to ‘collective justice’. While one of the objectives of the women’s commissions is to assist women in receiving justice in matrimonial disputes in family courts, the primary objective of the women’s commissions is to facilitate the overall development of women in the state, as opposed to merely focusing on resolving personal conflicts or disputes. The assistance provided to women in matrimonial matters too is to facilitate a change in women’s conditions or the repeal of discriminatory laws which have a larger impact on family or personal laws.

Possibly one of the biggest achievements of the KSCW has been a compensation scheme available to women acid attack victims. Much of this was because of civil society intervention and a petition filed by the Campaign and Struggle Against Acid Attacks on Women (CSAAAW) and Human Rights Law Network (HRLN) in the Bangalore High Court. It was on directions from the Bangalore High Court that victims of acid attacks were provided compensation, loans and employment under the Suraksha Scheme issued by the KSCW.

Courting informality

International principles mandate that human rights institutions be accessible. Accessibility to commissions includes not merely economic accessibility but also physical and procedural. Most times, the KSCW functions as a rudimentary court with all the intimidating formality of adjudicative bodies -- a written complaints procedure, issuance of notice to parties to attend the hearing, and a hierarchical seating arrangement that constructs a safe distance between the dispenser of ‘justice’ and its claimants. The counselling and hearing of cases take place in a large room. The chairperson typically seats herself in a position of authority accompanied by two counsellors and a typist. The petitioner(s) and respondent(s) are seated on the other side. The KSCW has adopted all the rituals of formal adjudicative bodies which encourage fear, intimidation and are often procedurally complex and incomprehensible to a layperson. The KSCW’s complaints unit is beset with all the same problems that surround formal court systems -- delays, inadequate staff and procedural and bureaucratic formality. Almost all women applicants interviewed had their first date of hearing after more than six months of filing their complaint. On the date of hearing, they spent long hours waiting for their turn.

More so, KSCW personnel, with the exception of a couple of counsellors/case workers, were often deputed from another government department. For instance, at the time of our reviewing of the KSCW, one of the case workers was a first division assistant deputed from the revenue department. She had no knowledge or inclination towards women’s rights. Besides, she applied the same bureaucratic procedures and practices that intimidate women and impede their access to the commission.

This possibly is why the KSCW often functions like a mailbox with long bureaucratic procedures, scarce information about the law or the rights of women and an indifferent attitude towards women applicants. Many women complainants were redirected to a protection officer or a police station in the given jurisdiction or the Legal Service Authority (LSA). These cases were depicted in the annual reports as cases resolved, much like the cases that have been compromised. Similarly, much like the statistics on cases filed and cases resolved that are maintained by the Supreme Court on its official website, the annual reports of the KSCW provided similar statistical evidence of success in dispensing ‘justice’ based on the number of cases filed and cases resolved annually. Resolving cases is considered ‘administering justice’.

Conclusion

Professor Marc Galanter and Jayanth Krishnan write in their paper ‘Bread for the Poor: Access to Justice and the Rights of the Needy in India’ (5) that the elite in India have access to efficient ‘formal’ courts, as opposed to being compelled to seek justice in an alternative, inefficient dispute adjudicative body. Not that efficiency and speed assure justice. But for women who approached the KSCW, delays and inefficiency meant not just greater disability in accessing justice; it also operated as a barrier. 

Decentralisation of the justice system and the setting up of informal justice systems or mechanisms was done with the purpose of increasing access to justice. This emphasis on access to justice often neglects the nature and kind of justice that is delivered. Moreover, since the establishment of commissions at the state and national level, there has been little evaluation of these institutions. Do these bodies and their mandate need some restructuring and rethinking? The founding legislations under which the human rights institutions were constituted have not been reviewed or amended since their enactment. In an interview with Justice Santosh Hegde in 2010, former ombudsman of Karnataka Lokayukta, he remarked that “every enactment after a certain decade needs to be amended based on changes in human behaviour”. (6) The commissions were set up to promote and protect human rights by ensuring implementation of international and domestic human rights norms, encouraging accountability and proposing legislative reform. What the KSCW, in particular, has been reduced to is an alternative dispute-resolution body available to those who can access it, as opposed to a human rights watchdog -- just another platform to reduce court arrears.

(Sonal Makhija is a Bangalore-based lawyer)

Endnotes

1 The report ‘A Review of the Working of the Karnataka State Human Rights Commissions (KSHRC) and the Karnataka State Commission for Women (KSCW)’, 2011, was conceptualised and authored by Swagata Raha and Sonal Makhija under the aegis of Daksh, a non-profit organisation based in Bangalore
2 The year 2008 witnessed a wave of attacks by Hindu fundamentalist political parties against Christians in the west coast of Karnataka. This included isolated attacks on Christian women. Although widely reported in the media, the state and human rights institutions failed to intervene 
3 In 2009, young women were assaulted in a pub in Mangalore by a Hindu right wing political party. The attack was allegedly carried out in order to protect the Indian culture and values. In this instance, it is the National Commission for Women that conducted an inquiry after the KSCW failed to intervene. For further details, please refer to: Anon, ‘Hindu Brigade Attacks Women in Pub’, IBN, January 25, 2009 (online). http://ibnlive.in.com/news/hindutva-moral-brigade-attacks-women-in-mangalore-pub/83648-3.html
4 Baxi, P. 2007. ‘Access to Justice and Rule-of-(Good) Law: The Cunning of Judicial Reform in India’, Working Paper, commissioned by Institute of Human Development on behalf of the UN Commission on the Legal Empowerment of the Poor, New Delhi
5 Galanter, Marc and Jayanth K Krishnan. 2004. ‘Bread for the Poor: Access to Justice and the Rights of the Needy in India’. Hastings Law Journal. Vol 55, No 4, 789-833
6 Interview with Justice Santosh Hegde, Lokayukta, on 22.09.10 (on file with Daksh)

Infochange News & Features, March 2013