Has liberal space expanded and conservative space shrunk in India’s legal arena? Perhaps yes, to the extent that there is greater transparency and accountability in governance thanks to the courts. But have things really changed in a substantive way? This only time will tell but India’s active press and judiciary have ensured that our basic and human rights are protected by not allowing the arrogance of power to go unchallenged.
In 2010, we saw a combination of action in courts and in Parliament which impacted human rights, and democratic governance and transparency. Some of it came to conclusion, while much of it is still pending adjudication or is yet in bill form. One of the most significant pieces of legislation introduced was the bill for amending the Constitution to reserve one-third of all seats in Parliament and state legislatures for women.
After several years in the making, the bill was introduced in the Rajya Saba and passed, not without strong opposition from a section of members of Parliament, who framed their opposition in terms of wanting quotas within quotas.
It has not been introduced in the Lok Sabha, indicating the lack of confidence whether it will be passed by the Lok Sabha at all. Yet one positive aspect of this was that in a rare display of bipartisan politics we saw the Bharatiya Janata Party support the bill. Perhaps an indication that in today’s India no one can afford to be seen as being against greater representation for women in Parliament and state Assemblies. If this bill actually becomes law, it will surely change the face of India by giving women a far greater role in decision making than they have today. But making it a law seems a long way off.
Among the positive developments in law was the introduction of the Sexual Harassment Bill in the Lok Sabha towards the end of the year. While this bill fulfils the long-standing demand of the women’s movement, it has severe limitations as it visualises a two-stage enquiry to ascertain whether sexual harassment has taken place or not. Making a woman who is already a victim of sexual harassment face two forums of investigation has the effect of harassment.
And then the bill has the provision to penalise women who have made a “false” complaint. Though there is an obvious difference between a complaint which is not proved and one that is false, this difference will be collapsed and all cases where a complaint is not proved will be treated as false. This provision will have a chilling effect on the use of the law as women may prefer not to make complaints for fear of prosecution if their complaints are not proved.
There is little point in making a law which has an element of fear of its use built into it.
The major preoccupation of the courts in 2010 were the scams, perhaps leading to greater accountability. The year 2010, in fact, saw a new form of political accountability not seen before — two ministers had to resign following disclosures of suspected illegal or improper conduct.
The Indian Premier League disclosures, resulting in the resignation of a minister, the focus on corruption in Commonwealth Games 2010 and the 2G spectrum scam have led to a very public way of dealing with corruption.
The conviction of the accused in the Bhopal gas tragedy case for only two years led to a major public outcry demanding that justice be done to the victims in terms of adequate compensation and punishment of the accused. It is a sad comment on the functioning of our legal system that it took 25 years for a conviction to be recorded at all, and that too one which was so unsatisfactory.
Woken from its long slumber, the government had to file two petitions, one for reversing the conviction on the ground of negligence to culpable homicide and the other asking for the reopening of the settlement on the ground that it has been found to be inadequate. Both these petitions are historic as they question miscarriage of justice and call for accountability of the justice system.
Meanwhile, the judicial system has also come under greater scrutiny. One judge is in the process of being impeached and an enquiry is in progress against another. If these processes succeed, they will go some way in demanding accountability of the judiciary and ensuring that standards of integrity are met and maintained. This, however, is no substitute for a law to tackle complaints against judges.
The Ayodhya decision was perhaps one of the most important decisions of this decade. While some thought it satisfied both the Hindus and the Muslims by diving up the disputed land, others thought it dodged legal issues and was no more than panchayat justice. Certainly legal issues remain unresolved and we will have to wait and see if the Supreme Court is able to separate issues of faith from proof of facts. Judging by the length of time the judiciary has taken to get to this stage, we will perhaps not see a decision in our lifetime.
There were several judgments affecting women this year. One of the most significant ones was the interpretation of “relationship” in the matter of marriage by the Supreme Court.
A judge said: “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and or as a servant, it would not in our opinion be a relationship in the nature of marriage”.
Though intended to protect women from violence and safeguard their rights regardless of their marital status, the judges’ gender bias surfaced while delivering the judgment. While doing justice to women, derogatory language was used and entrenched stereotypes and prejudices reinforced. It is not enough to get it right, it is equally important to take right decisions for the right reasons.
Indira Jaisingh is the first woman Additional Solicitor General of India
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