2017 — The Year Gender Justice Took a Back Seat

Written by Indian Cultural Forum | Published on: January 1, 2018
While judgements become part of the history of law in a country, they are also part of its history of power. With both law and justice in its root word ‘jus’, it would not be difficult to understand in our times that what becomes legal following a judgement, or what is ordained by the law of the land, may not always be just, even though this is quite easy to assume in a country where we put all our faith in courts of law. The recent introduction of the Muslim Women (Protection of Rights on Marriage) Bill, 2017 (recall the old colonial saviour complex of saving brown women from brown men) on Friday last week to criminalise instant triple talaq, the passing of the Transgender Persons (Protection of Rights) Bill, 2016, the Supreme Court Judgement on Hadiya, the Delhi High Court Judgement acquitting Farooqui, bear testament to this fact – gender equality and gender justice took a back seat this year. To find out more about these bills and judgements, please find below a list of posts compiled by the Indian Cultural Forum:

Delhi High Court’s Judgement Acquitting Mahmood Farooqui​


Image courtesy The Quint
 

Read the Delhi High Court’s Judgement Acquitting Mahmood Farooqui in Rape Case here

 

Feminists Say “No” To Recent Rape Judgements: And There is Nothing Feeble About It!

In the wake of the protests following the 2012 Delhi gangrape, India had witnessed a welcome sharpening of understanding around sexual violence and consent. Legal reform recognized the principle of affirmative consent – i.e the principle that consent must be nothing short of an unequivocal positive ‘Yes’ (whether through words or gestures) to engage in a sexual act. In public discourse and popular understanding too, the understanding that ‘No means No’ had been strengthened. Recent Court verdicts and orders have however dealt a deep blow to this hard-won progressive advance.
As women and women’s groups with a long history of working on issues of gender justice and with survivors of sexual violence, we are deeply disturbed by the 13th September 2017 bail order of the Punjab and Haryana High Court (HC) which cited the victim’s “experimentation in sexual encounters”, “promiscuous attitude and voyeuristic mind” as part of its legal reasoning for granting bail to three men convicted in the Jindal Law School gangrape case. In so doing, the Punjab and Haryana High Court has strengthened the dangerously patriarchal notion that rape is not rape when the woman is “promiscuous”, and that “promiscuous” women invite rape since their “promiscuity” can be read as consent.  It also stands in clear violation of the Indian Evidence Act that specifically prohibits referencing the victim’s sexual history or character in adjudication of cases of sexual assault…
Read the entire statement here.

Violence Against Women – Two Patriarchal Judgements​
Do a woman’s attire, appearance, sexual history or prior relationship with a perpetrator of sexual violence constitute a valid defence for a perpetrator of a sexual offence? Does the meaning of consent vary for educated women? The law, as it stands, doesn’t permit these factors to be taken into account while adjudicating crimes of violence against women nor does it prescribe varying standards. Unfortunately, however, deeply ingrained patriarchal mindsets rear their ugly heads ever so often flouting express statutory proscriptions, most recently demonstrated by two judgments delivered in the last fortnight dealing with rape.

The Punjab and Haryana High Court suspended the sentences of three students granted by the trial court for the rape of another student. The basis for this suspension, amongst others, was the victim’s “misadventures and experiments”, her “promiscuity” and the absence of brutal violence accompanying the sexual assault. Close on the heels of this, the Delhi High Court, on appeal, acquitted Mahmood Farooqui, a filmmaker, overturning the trial court’s verdict of finding him guilty of rape having performed forced oral sex on a visiting woman scholar.  While so doing, the Delhi High Court purposively misinterpreted the position of law on what constitutes consent and seems to have been largely influenced by the victim’s previous relationship with Farooqui, her being educated (a “woman of letters”), the supposed feebleness with which she said ‘no’ to the sexual act, and the fact of Farooqui’s bipolar disorder…

Read the entire story here

Hadiya Case Supreme Court Judgement​


Image courtesy The Hindu

Read the entire judgement here.
 

Why Has Hadiya Not Been Allowed to Join Her Husband?

There is this 25 year old girl, an age where parents happily marry off their daughters or even today start sharing their "worry" if a potential groom is not on the horizon, and we are being subjected to the sad spectacle of the courts intervening in the life of an adult woman. Why? Because her parents did not want her to marry outside her religion. And more because the BJP sensing an opportunity to further its "love jihad" agenda has decided to “investigate" the “terror links” of the young husband, as he is a Muslim and hence can be so pilloried. Hadiya, as she prefers to be called, has gone through sheer hell in the recent past, her trial having started when she married Shafin Jehan of her own free choice—-that has been established without doubt now—-with the Kerala High Court annuling the marriage and terming it as an incident of ‘love jihad’. And the Supreme Court that was expected to give relief taking the rather strange position of directing the girl to go back to college, with the Dean as her guardian.

Why not to her husband? She is an adult, the man is still innocent, both want to be together so should not an adult woman be allowed to join the man she married? More so, as she has declared—not once but repeatedly despite tremnedous pressure from family, society, and the state— that she was not coerced or forced, and just wants to be with him…

Read the entire story here

The Stories of Ishrat Jahan and Hadiya: Victims of Communal Politics
Hadiya’s story has four striking similarities with that of Ishrat Jehan, the young woman killed in the Sohrabuddin Sheikh case:
1. In both cases the girls were in love, made a choice, and refused to budge from it;
2. The state confronted and fought both Ishrat Jehan and Hadiya for their choice, although given Sheikhs background Jehan met with a violent death at the hands of the state; while Hadiya is undergoing tough and constant pressure from the state’s National Investigation Agency;
3. Ishrat Jehan protested when she heard of the ‘encounter’ death of the man she had hitched her life to right or wrong and was killed so that she did not speak out; Hadiya has refused to retract from her marriage and her belief, despite being placed in the custody of her father, and subjected to immense pressure from the state;
4. Both women are victims of political connivance finding its basis in communalism. Ishrat Jehan paid the price for the games being played in Gujarat; Hadiya is suffering because of New Delhi’s power play to somehow link the Left government in Kerala to ‘terrorism’ with the ‘love jihad’ ideology being used as the reasoning board…

Read the entire story here
 

The Transgender Persons (Protection of Rights) Bill, 2016

The Transgender Persons (Protection of Rights) Bill 2016 Criminalises Transgender Persons​
The Transgender Persons (Protection of Rights) Bill 2016 poses threat to some of the basic rights of transgender people in India. Far from guaranteeing their protection, the bill gets the definition of a transgender person wrong, and ends up excluding a majority of the community. Individuals and groups came together to protest the bill at Parliament Street, Delhi on 17 December, 2017.

Statement by the Lawyers Collective on the Transgender Persons (Protection of Rights) Bill, 2016

It is important to remember that the transgender community in India has never demanded a law but demanded equal and undiluted rights under the Constitution and other existing laws. The NALSA judgment did exactly that – affording rights and recognition to transgender persons within the constitutional framework – the highest law of the land. As a result, many transgender persons are approaching Courts for claiming their fundamental rights, especially in relation to equal opportunities in education and employment. However, since the introduction of the MOSJE Bill in the Lok Sabha, many such cases have been kept pending at the instance of the Respondent authorities, even though the Bill has no status in a Court of law or application to the case. If passed in its current form, the MOSJE Bill will spell a death-knell on the hard-won rights to equality and freedom for transgender persons, which the State was expected to advance and not truncate, post NALSA…

Read the entire story here

Fading Identities: Parliament’s Transgender Bill is Downright Contemptuous and Demeaning
The Bill in fact requires a transgender individual to make an application to the District Magistrate for issuing a certificate of identity as a transgender person which would be referred to the District Screening Committee constituted for the purpose of recognition of transgender persons. The District Screening Committee would consist of the Chief Medical Officer, District Social Welfare Officer, a Psychologist or Psychiatrist, a representative of transgender community, and an officer of the appropriate Government to be nominated by that Government.
Such provision is patently in violation of the rights of the third gender guaranteed under Article 21 of the Constitution and, indeed, the entire human rights jurisprudence. No individual can be forced to undergo medical screening to identify and recognise his/her sexual orientation and gender identity, which is one of the most basic aspects of self determination, dignity and freedom…

Read the entire story here

Muslim Women (Protection of Rights on Marriage) Bill, 2017
Read excerpts from the Supreme Court's decision to strike down instant triple talaq here

Bill on Triple Talaq: Unjust and Alarming, Needs Parliamentary Standing Committee Review 

The move to criminalise triple talaq, is not just against the men, but the women too…

Read the entire story here

Three Students Respond to the Triple Talaq Judgement
They ask: Why should patriarchy within Muslim men be seen as an exceptional form of patriarchy, one that is more severe than other religions?


 
Watch the entire conversation here

Courtesy: Indian Cultural Forum