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Gap between law in theory and in praxis

A recent Bombay High Court judgment stating that a daughter ceases to be part of a father’s family on marriage, coupled with reports that a lady judge has listed her daughters as liabilities in her public declaration of assets, underlines just how subjective law is, says Rakesh Shukla

law on sati

The proposition that parents have a legal responsibility to take care of minor children, but that after attaining majority individual adults do not have the right to stay in their parental home, seems sound in law. That seems to have been the legal issue involved in the dispute between 35-year-old Kashmira Robert Lobo nee Kashmira Soli Batiwala and her 73-year-old father Soli Bahadurji Batiwala over her right to reside in a flat at Dadar Parsi Colony in Mumbai.

Justice Bhatia, speaking for the Bombay High Court in this case in February 2012, observed that on getting married a daughter ceases to be part of the father’s family. Further, after marriage when she goes to the parental home, she is only a guest in the house with no rights and can stay there only as long as permitted. Couple this with newspaper reports that the official website of the Supreme Court listed the daughters of the lone lady judge as liabilities in the public declaration of assets and liabilities, and you realise how subjective law is.

Laws can be enacted or changed to tackle social evils like dowry, sex determination and sex-selective abortion of the female foetus, sati glorification and rape. But abstract law is translated into concrete reality by individuals. The biases, prejudices and stereotypes of the individuals performing judicial functions vitally impact the interpretation of legal provisions.  It is not as if judges are especially susceptible to bias, prejudice and stereotypes, but the fact that their actions have tremendous impact on society places them in a separate category. The lives of the specific individuals in cases before the court are of course affected, but in addition, the broader constitutional, social and economic framework of the country can be impacted in a major way by judicial decisions.

Biases, prejudices and stereotypes are often seen at play in the judicial arena. The law with regard to custodial rape changed with the introduction of Section 114-A in the Evidence Act which lays down that if a woman says she did not consent then lack of consent is to be presumed. Nevertheless, submissions such as “the prosecutrix was examined by Doctor A. The doctor found no injuries on any parts of her body including to her private parts”, still weigh heavily with the courts in acquitting or convicting the accused.

Similarly the law has been changed and the character of a rape survivor may no longer be impeached; yet statements like the following are still found in judgments: "It must however be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman with no scruples or morals."

The enactment and implementation of the Rajasthan Sati Prevention Act, 1987 is a textbook illustration of the vital need to address the unacknowledged in the gap between law in theory and law in praxis. In Deorala, a nondescript village in Rajasthan, 18-year-old Roop Kanwar burned to death on the pyre of her husband on September 4, 1987. Pressure from women’s groups led to the promulgation of an ordinance prohibiting the glorification of sati and on a petition by activists, the Rajasthan High Court ordered the state government to prevent the sati glorification
function on the 13th day of the death of Roop Kanwar.

However, the ceremony on the 13th day of Roop Kanwar’s death was held with
much fanfare. A festive chunari (veil) draped over a trishul (trident) to resemble the form of a woman and taken around in procession was set ablaze in the presence of VIPs, politicians and legislators along with thousands of people. Cries of “Sati Mata ki jai” (Long live Sati Mata) and “Jab tak suraj-chand rahega, Roop Kanwar tera naam rahega” (“As long as the sun and moon exist, Roop Kanwar you will be remembered”) rent the air.

Criminal cases were filed for the glorification of sati. The legislation defines sati as the burning or burying alive of any widow along with the body of her deceased husband or with any article, object or thing associated with the husband, irrespective of whether such burning or burying is voluntary on the part of the widow or otherwise. Glorification includes the observance of any ceremony or the taking out of a procession in connection with sati or with a view to perpetuating the honour of, or to preserve the memory of, a widow committing sati.

The court, duty-bound to apply the definition as laid down in the law, instead declared that sati means a “woman being virtuous, having strong character, completely devoted towards her husband and having a relationship with only one man during her whole life”. Applying this interpretation, the judgment referred to Sita and Anusuya as satis and observed that the invocation of their name would obviously not make a person guilty and acquitted the accused of sati glorification.

As with caste, the roots of bias, prejudice and stereotypes about class, caste, crime, community, sexual orientation, lie in the unconscious. It is rare that a judge would consciously think – “I am against workers” or “I think Muslims are bad” or “homosexuals are abnormal”, yet these notions impact judicial behaviour and functioning. This is true across the board from trial courts trying individuals to the highest courts adjudicating on the constitutionality of laws. Factors lying in the unconscious can be seen more easily when individuals dubbed ‘terrorists’, ‘Naxalites’ and ‘secessionists’ are on trial in the lower courts.

Take the adjudications of the higher judiciary on the constitutional validity of ‘anti‐terror’ laws like TADA, POTA and UAPA or laws like the Armed Forces (Special Powers), Act, 1958 brought in to deal with secessionist movements in Kashmir or the northeastern states of Nagaland, Assam and Manipur. On the face of it, the proceedings are solely about abstract principles and reasonable restrictions permissible on fundamental rights in the public interest. However,  subterranean processes, which on occasion may come through in consciously written judgments, are often discernible in the gestures, mannerisms, tone and affect of the queries of judges during the proceedings. The positive feelings of individual judges towards their mother and motherland may come into play. Feelings of anxiety with regard to inimical forces waiting to pounce and violate the motherland may conflate with fears of dismembering and fragmentation of the motherland. Vague inimical forces get reified in the stereotype of the bloodthirsty, bearded, AK‐47-toting ‘terrorist’ out to destroy. The plethora of feelings which may be provoked impact fair, balanced and rational application of mind to the validity of such laws. Invariably all the laws in the arena of ‘terrorism’, ‘secession’ and ‘Naxalism’ severely curtailing civil liberties have been held to be constitutional and valid by courts.

The legal system must take on board the ‘hidden’ unconscious in the conscious application of laws. There can only be self-correction by judges in this arena. Parties in cases can go in appeal to superior courts, but it is contempt to allege bias against a judge. It is necessary to devise ways and means to initiate a process of awareness on the part of judges as to the biases, prejudices and stereotypes they carry as individuals which impinge on judicial behaviour and impartial evaluation of evidence as well as the judgments of courts.

(Rakesh Shukla is a Supreme Court advocate, member of the Indian Psychoanalytic Society, and psychotherapist at the Centre for Psychoanalytic Studies, University of Delhi)

Infochange News & Features, February 2012