“I can’t emphasize enough how much we need to start looking beyond the law, looking beyond the formal justice system to really start thinking about gender-based violence in a way that looks at not just justice for survivors post the act of violence, but also looks at violence as a continuous everyday act which manifests in different forms, and talking about responding to these everyday acts of violence as a way to reduce gender-based violence.”
— Uttanshi Agarwal on exploring and reforming justice beyond our conventional approach to it in this episode.
How do we reconcile our conception of alternative forms of justice with the current legal justice system? We urge survivors of gender-based violence who speak up to approach formal legal systems, but we don’t give the same time to analyse the system or think about building new systems that function on principles of fairness, humanity and intersectionality. In this episode of the In Search of Justice podcast, co-hosts Vandita Morarka and Ruchika are joined by Uttanshi Agarwal, lawyer and Program Director at One Future Collective’s FemJustice Center, as they discuss what justice under the formal legal system looks like, how access to justice within these systems can vary for disadvantaged communities, and pose some important questions on where we go from here moving forward.
Content Warning: This conversation includes mentions of assault, rape, and mental, emotional, physical and institutional violence.
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Love to read or want to revisit your favourite bits? Dive into the full transcript below!
Ruchika
Hello and welcome to the second episode of the In Search of Justice podcast. I am Ruchika.
Vandita
And I am Vandita. In today’s episode, we will be taking a deeper look at justice in the context of formal and legal systems that address gender-based violence in India.
Content Warning: We would like to give you a trigger warning and a content warning about various mentions that will happen through the episodes of rape, sexual, physical, mental assault and also other forms of gender-based violence. We will be discussing justice specifically in the context of gender-based violence through this series, and what might happen is that it may get a little emotionally difficult for you to process this or to just listen in, and that’s completely fine. We would encourage you to be mindful while listening and to step back, take breaks as needed, and also in some scenarios choose to opt-out and not listen.
Ruchika
So, one of the points we talked about in the first episode is how we grew up perceiving justice as something only delivered in courtrooms. So, I think it only makes sense to take a closer look at what justice does look like in courtrooms for survivors of gender-based violence before we sort of segue into larger themes of justice and justice beyond and outside of courtrooms.
Vandita
Definitely Ruchika, and I’m so excited for that. For today we have our first guest with the podcast, which is Uttanshi Agarwal. Uttanshi is a lawyer and the program director at the FemJustice Center at One Future Collective. So excited to have you with us, Uttanshi, hi.
Uttanshi
Hi Ruchika. Hi Vandita. Thank you for having this important conversation and making me a part of it. I look forward to speaking with you all and discussing this particular segment of the podcast with you.
Ruchika
Hi Uttanshi. We’re really excited to have you come on to break down what justice looks like and what it means in the formal legal systems today. I’m actually gonna jump right into it with the first question I have for you. Can you tell us about some laws that address gender-based violence in India and how they came to be?
Uttanshi
Yeah, definitely Ruchika. So, I think when we speak about the legal response to gender violence, I want to highlight that it’s been very, very evolutionary. So new laws, new crimes are being recognized and introduced, as and when required, in response to violence that is taking place. So for example, there is a particular act which takes place and then in response to that, a particular crime is starting to be recognized or a particular law gets introduced, for example. So, in my experience and generally, when we look at the legal framework, two things that generally do bring about this sort of change within the law and the legal response to gender-based violence are, one, cases which have become extremely prominent, cases which have been talked about extensively in the media, for example and the second thing that I think generally brings about the change in law in relation to gender-based violence is a lot of the Judgments that for example, the Supreme Court or the other high courts of the country end up giving out. So when I speak about, you know, for example, what does this really look like in practice and can I substantiate this with existing laws? These trends become really, really important and become very evident also, I think.
So, one of the first laws that come to anyone’s minds about gender-based violence is, of course, the Indian Penal Code (IPC), which was passed like way back in 1860 and the Indian Penal Code is something that is the general criminal law of the land which has all of the crimes that ever can occur in India and can be tried in India as well. So, as part of the IPC in 1860 itself, there were certain specific crimes which were gender-based violence (GBV) related and I think at that point in time we only recognized rape as a form of gender-based violence and not really the other forms of GBV laws that we see currently in existence. The second thing that happened in relation to the IPC is the ‘Mathura rape case’, right, which happened much earlier, around the 1980s, which sort of spearheaded this movement for a change in how rape laws are seen in India. The need for us to include things like custodial rape within the Indian Penal Code and these and the case was sort of responded with that particular response from the government. Whereas, in 1983 the Indian Penal Code was amended, we had a few changes in how evidence is to be recorded. We had changes like custodial rape being included. All of that happened, and from 1983 up until 2013, the law became fairly stagnant. And in 2013, in response to the Nirbhaya rape case, we had the ‘2013 Amendment’ which was again a very, very big landmark because it went a step further from just recognizing rape as a form of gender-based violence, but also went ahead to recognize other forms of violence, right, things like stalking, things like voyeurism, acid attacks, for example. So, these were not laws that existed before 2013, but because of the Nirbhaya Judgement and because of what happened with the case, it sort of really signalled the need for us to look at gender-based violence beyond rape and understand gender-based violence as more than just something that is relegated to rape.
Now when we speak about other laws, we also obviously have domestic violence laws, we have the prevention of trafficking acts. So, all of these laws do exist, but when it comes to how the legislature has responded, in some cases it has been unsatisfactory as well. Which takes me to the second point about how a lot of the times gender-based violence laws have been a result of court action and court intervention. So, like we saw, in both the Mathura rape case as well as the Nirbhaya case, the legislature was active and it responded, right, to the concerns that the court sort of brought out in its judgment, that the prosecution was facing, etc. But in a lot of other cases that didn’t really happen, in which case the courts had to step in directly and make the changes to the law themselves, in whatever limited capacity that courts could. I think one of the foremost examples of this is the Vishakha Judgment of 1997, which identified a very particular gap in the law and the legal framework, which is, the laws that address or don’t address sexual harassment at the workplace and even though the Judgement came up like way earlier, we didn’t really have a law up until 2013, which is the Prevention of Sexual Harassment at the Workplace laws. Now what happened with that Judgement is, of course, there are a lot of problems with how the court went in and ignored the whole caste factor into the Judgment, and did not even speak about how this was also a case of caste atrocity- but it did fill in a very important gap that the legislature was not willing to, at all.
We also saw this happen with the NALSA Judgement of 2014, which really only reiterated what is there in the Constitution, but also did something more, in as much as it gave special protection to trans people and recognized their right to self-determination. Now the NALSA Judgement and a big part of it, is translated into what we know today as the Transgender Persons Protections of Rights Act in 2019. Now it has a lot of issues, right? But that’s true even for the Judgment. And what I want to highlight here is the fact that the act was necessarily a result of the NALSA Judgment, and how both of these, right, the NALSA Judgement as well as the Act have problematic elements, have elements where they invisibilize concerns that the trans individuals face, they conflate trans people with intersex persons. There are a lot of different kinds of issues which came up, but I want to use this space to say that that has been another instance where a court judgment has resulted in the formulation of a law governing gender-based violence. And of course, another thing that comes up when we speak about court action and gender-based violence is also Section 377 of the Indian Penal code in 2018, where 377 was partly struck down, and it legalized consensual same-sex sexual intercourse between consenting adults. So these are all some, I think examples, of what the legal framework in India concerning gender-based violence looks like. Of course you know, not comprehensive, not to say that these are the only laws which govern it, but definitely I think some of the most landmark moments in how gender-based violence is perceived in India from a legal point of view.
Vandita
Thank you so much for sharing that with us, Uttanshi. I think it’s extremely pertinent to note that a lot of the gender-based violence legal frameworks that have arisen in our country are quite reactionary and reactive in nature and over time I sense that while there are a lot of attempts at addressing gender-based violence in our society, there seem to be some trends in how they are addressed. What are some of these recurring themes and ideologies in these laws and how do you think they may affect gender-based violence, not always in the most positive way?
Uttanshi
Thank you so much, Vandita, actually, for pointing out the reactionary bit because, you know, when we are not thinking about gender-based violence as something that takes place in an everyday level and only perceive gender-based violence as something that happens when there is this huge noise that the media is making or because of a particular case, we also start thinking about laws and addressing gender-based violence from that lens. We only think about gender-based violence when a particular case breaks out and not when we have the time and the resources to really sit down, put our minds to it and think about what are the responses, what are the needs of survivors that are really necessary at this point in time. So, I think to answer the second part of your question and reflection about how we can map out certain recurring themes and ideologies which emerge out of all of these trends, I think there are quite a few, and some of them I really want to bring out here. One is of course that ,you know, the laws are very, very binary at how they look at gender. So, generally when we look at gender-based violence, there is an inherent presumption that we’re talking about violence against women and I feel like that, by itself, relegates how the legal framework also looks at and treats survivors of gender-based violence. And I think one of the biggest things that we need to move away from here is the understanding that gender-based violence only equates to violence against women, and how we need to recognize that gender-based violence is basically violence that takes place against an individual because of their gender, and this gender can be anything, right? Like of course there are some genders which are more vulnerable to this sort of violence, but it is definitely more than just violence against women. So, for example, the reason this becomes important for us to, you know, really talk about is also because a lot of our laws today are framed within the man-woman binary, right. It says men are people who perpetuate this violence and women are people, who receive- who are at the receiving end of such violence. Now while that was a traditional view of gender-based violence, it’s important to evolve because now we’re trying to understand whether okay, if the IPC is saying women are the only ones who can be raped, are we at least including trans women? You know, I know we’re not including trans men, we’re not including non-binary persons, but at least does the word women include trans women? And we don’t have that sort of clarity, right? Our marriage laws, our property laws, our criminal laws, our domestic violence laws, we use words like women and men very, very freely without really understanding who are the people who are being protected under there. So, for example, we have a judgment from the Tamil Nadu High Court as recently, I think in 2019, right, which went ahead to recognize trans women as brides within the Hindu Marriage Act. Now although that is one definition that is very, very favorable to the concerns that trans individuals may face, it’s really not something that has been translated into the law. What does this also mean, right? It also means that I can go to court and argue that a woman includes trans women, but that requires a lot of resources, that requires a lot of appeals, that requires me going to the highest court of the country, it requires me having the best lawyers on board. Which are all battles, I think, a lot of us may not necessarily always be able to fight. So it’s important really, to look at how when we speak about gender-based violence, we need to move the narrative, the legal framework, the legal text of the law, to reflect the fact that we as a country recognize gender-based violence not as being equated to just violence against women.
Vandita
That’s a very important point to bring up, Uttanshi. I find that it is our everyday understanding of gender that is so binary that it translates into how the legal and court system also looks at gender, and consequently, at sexual and gender-based violence and it’s quite limited in that approach. I think it alienates a lot of people from the former legal system and it definitely reduces access to justice for so many. I think just the- sort of confusion around this can also lead to reducing justice for so many communities. Even if, like in the spirit of the law, the court would uphold their rights, there isn’t clarity on if those rights exist also in the first place.
Uttanshi
Yeah, definitely, right? And this also sort of takes us to the next point about how, we all as individuals have so many different identities, and a law that focuses on my identity, just as a woman may not necessarily be equipped to also deal with my identity as belonging to a particular religion, as belonging to a particular caste, as having a particular disability, for example. So even though you know- and from a legal point of view, we do have the SC-ST Act (The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989) or the prevention- The Protection of Persons with Disabilities Act (The Rights of Persons with Disabilities Act, 2016) for example, which do have sections on violence against women and you know exploitation of women etc. But what that actually, what, the problem that I end up seeing is, when we go to the police, the power from us is largely taken away, and it is for the police to sort of say okay, you know what, we are going to look at all of these different laws and make sure that all the protections available to you are included in the complaint. And I feel like losing that power, not having a say in, you know, okay, this particular law will also become relevant to me in addition to the Indian Penal Code, becomes very, very important because if we don’t have that level of clarity, that level of intersectional application of the law, different identities and the impact of these identities on my vulnerability to being subjected to violence often become very, very invisibilized. And I think we all know that even with the Vishakha Judgment, the whole idea that this was a caste-based violence was not even included within the judgment and now we’re realising what a disservice that is to the survivor and the various identities that the survivor holds.
Ruchika
I think it is a reflection of how we perceive gender-based violence- have- occurring in sort of isolation, from other systemic oppressions, and that is also reflected within the legal system and gender-based violence is not isolated from other forms of systemic oppression, it’s highly interconnected, and it intersects with other forms of oppression, and that absolutely gets missed in the larger context of things within the legal system.
Uttanshi
Yeah, definitely agree with you Ruchika. You know, I really like the point about how you said, you know, we look at gender-based violence as something that exists outside of other identities, which may not necessarily be true. And that takes me to the point about how, you know, the law, the legal framework, How we respond to gender-based violence is often really, really far from the needs of the survivors, right? Or even our understanding of these intersectionalities of this multiplication of identities which leads to greater vulnerabilities, for example. So that’s evident with the Transgender Persons Act 2019, right? There’s a misjudged understanding of the term ‘Trans persons’, who ‘Intersex persons’ are, how their lived realities are conflated, how there is a difference in how crimes against these communities are perceived as opposed to crimes against, say, cis women, for example. And that also takes me to the next point about how we just don’t have a law which bans surgeries on intersex babies, except for the state of Tamil Nadu and as a person who has an understanding of gender-based violence, who has an understanding of how different identities intersect to being subject to violence, a person would necessarily already have this sort of understanding, right? They’d be cognizant of these needs and therefore they’d be cognizant of these needs even while drafting these laws, which is something I think is largely missing. So, I think the last thing I really want to highlight is the lack of involvement of survivors, representation of survivors in the decision-making process and the legal process as a whole, which surely invisiblizes our understanding of what they need, and also paternalizes our understanding of what they need, which also ties into why, I think we think that yes, punishment is justice and that is the only out we have for survivors, right? We don’t even give them the option to think of how they want to remedy the wrong that they have been subjected to. So, I feel like there’s a lot of paternalization, a lot of appropriation of the experiences that survivors may face in the whole legal system as well.
Ruchika
Yeah, that whole savior complex definitely is a very, very prominent theme within legal systems. So clearly there’s much room for improvement in the way we perceive justice within these formal legal systems, and I want to take a minute to focus specifically on the adversarial nature of the law, and discuss how that is actually harmful for survivors of gender-based violence. I mean, each time a case of sexual violence comes forth in the media, there is, you know, a certain section of the country that almost chants war cries demanding capital punishment or the harshest punishment there is without even thinking for a moment what the consequences of asking for that kind of punishment might be for the survivor who was subject to violence in that case, or survivors overall in society. So, I just want to sort of take a moment to reflect on that and talk about how that works.
Uttanshi
So before I begin answering that question, I really want to go into what an adversarial system is, right? Like as the word suggests, it’s basically a system where it’s one against another, as opposed to one with another, to really work towards achieving or realizing what the truth of the matter is. So, in an adversarial system, the courts necessarily become a non-interfering third party. They’re expected to become non biased, they’re expected to be impartial to the entire system, and count on the ability of the prosecutors, basically the survivor, as well as the accused person or the perpetrator to come forward and present their cases. Now in an adversarial system, the court plays the role of a referee, right? Like something of a referee where the judges are waiting to be presented with facts and with evidence, and then they make a decision based off of whatever is presented before them which also means that judges don’t necessarily play an active role in the truth finding process. They don’t necessarily say, you know, maybe the prosecutor is not able to present this evidence, so I will step in and see what the real truth of the matter is. Now what that really ends up doing is, you know, and we’ve all understood and seen the role that skewed power dynamics play in such situations, what happens in a case where the accused is a person who has access to the best lawyers in the country, who has access to investigators who can follow the prosecutors or the survivor everywhere and pick up dirt on them? What happens when, as a prosecutor or as a survivor, I don’t necessarily have those resources? In an adversarial system, the power dynamics really, really play out and put one person at an obvious disadvantage when compared to the other, really changing the owners and bringing everything down to how much money I have, how much power and clout I have in the society, how far am I really, really willing to go to credit or discredit another person’s story against me. And this ties into conversations about accountability and the willingness to take accountability and how that ties into justice and well-being of course, which is a much longer conversation to have, but I really want to highlight how the adversarial justice system really, really discounts an individual’s lived reality and how the focus here is on the courts being impartial. And I remember reading this somewhere, where you know, there is a very, very big need for all of us to move away from really giving the increased importance that we do to being impartial and really start moving towards being equally partial to everybody and how when we expect somebody to be neutral or we expect somebody to be impartial- we’re necessarily saying that, look, ignore all of the intricacies and the complexities that accompany an individual, and treat everybody as the same, which I think, is also the conversation with the equality and equity, right? Like it’s impossible for me to look at someone as the same as the other person, because that’s just absolutely not true. Each of us is fundamentally different, and a system which thrives on making these, or, you know, ignoring these differences is inevitably going to be a system that is filled with inequities and inequalities.
Vandita
Thank you so much for that, Uttanshi. I think just speaking of something that you’ve said, I think it’s so important to recognize that impartiality is not truly impartiality because we don’t really look at people and see them from a completely neutral lens, right? We have our own biases, we have our own stereotypes, and we are applying them to the people anyway. However, this veil of impartiality sort of hides this. It does not allow for it to come out to the front and then be addressed. I find that really lovely that there is a need for different stakeholders to be involved in the process, have an actual stake in the process, right? And want to ensure that a larger arc is moving towards justice. And the first step for that is often also recognizing that individuals are not impartial. Even those occupying the higher seats in the decision-making, often have their own biases and stereotypes, even when we feel like they don’t, or even when they feel like they don’t. So, I feel like just starting on that journey can be extremely beneficial for survivors of sexual and gender-based violence, and even otherwise. I think it would do a lot for the justice system, to have a system that is actually as invested in ensuring that we don’t just reach some sort of semblance of yes, this person was right and this person was wrong, but a deeper understanding of what justice in that situation looks like and how that can be made real and possible for the people who are parties to the case. And I say not just for survivors, right? I say for all parties, how can we make justice a more lived and actually tangible experience? Thank you for sharing that. Even from what you said, I feel like there’s a definite need to relook at the systems that we exist under, in a way that can be more supportive of survivors, and that works with them towards justice, rather than just at them.
Uttanshi, do you think that the formal justice system even holds relevance for survivors today? And if yes, how do you think we can make it a little better?
Uttanshi
You know, with all these conversations that are happening about alternative justice, transformative justice, I’ve been grappling with that question a lot myself. As a lawyer, I think it’s a tough reality to face, right? Like to think that maybe what I studied for five years, maybe the formal justice system is really not cut out for survivors. It’s not really a model that we should continue holding and replicating for the future. But having said that, I do feel like it holds relevance. And I feel like a lot of us have found some faith, have found some access to justice through the formal justice process. And I feel like we need to think of ways by which we can make it better. And we will come to the points about how we probably should think of alternatives as well. But I’ll start off with how I think we can probably move towards making a justice system, a formal justice system that is more inclusive, that is more responsive to the needs that survivors are probably facing.
So, the first thing I want to talk about is how we need to have representation within the judiciary that is diverse and I don’t just mean, you know, promote a particular judge just because they come from a certain identity, but really practicing this sort of diversity and representation at every level of the legal system, starting right from law schools up until, you know, the Supreme Court. And I feel like having that sort of representation is really important to understand, and for judges to really understand, what survivors face or, or at least empathize with it, right? Like, I don’t think just because we share an identity, we have the same lived experience. But I do feel like it gives us a window of learning and a window to empathize with each other, and that’s very true, right? Like even when you see our Supreme Court, the ratio of men to women by themselves is extremely, extremely skewed. And the conversation on trans people serving as judges, on disabled people serving as judges, on people from certain castes serving as judges does not even come up. That’s a conversation that won’t happen for a long time from now and I feel like not having that sort of representation makes the entire judicial process very, very skewed. And I feel like there is a very certain narrative that gets propagated and there is a certain lens with which the case is being viewed. And I feel like unless that lens is accompanied or complemented with different views and ideologies, there is a very, very high risk that we’re all going to be pandering to a certain cis het, upper class, upper caste ideology of what happened, what went wrong and what experiences and what responses a survivor should have displayed at a certain point in time.
Vandita
That’s extremely pertinent, Uttanshi. I think that we often don’t recognize the underlying systems that lead us to imagine justice in a certain way. And behind that we don’t see who are the people in power that are defining what the justice system looks like, right? What I’m also hearing here is that there is often a lot more to the crime than the crime itself, and there is a need for us to focus on that too. Like often what does have an effect on the incidence of crime is more about socioeconomic factors and thinking about what socio economic justice looks like. Things like comprehensive sex education, mental health care, access to housing and food, general security are so much more helpful in prevention of sexual and gender-based violence or ensuring that survivors are able to get justice and leave abusive situations. But they are also often the harder things to do. No one really wants to look at them, right? Like when I bring up housing as a way to ensure survivors of domestic violence have access to justice or are able to leave abusive situations, that is a policy decision that policymakers do not want to talk about. We might want to think about, oh, let’s criminalize it further and let’s put the perpetrators in jail, but who’s that helping? I feel like it just feeds into the needs of the system to feel like justice has been done, but in actuality, justice isn’t really done. And what is needed for justice to be done is so much more of a support infrastructure, both in terms of socio economic factors, even political civic factors and a lot of community based factors that can help survivors just find healing and justice post an incident as well.
For me justice is also a lot about like access to justice. And what about the physical and the psychological infrastructure? Especially under formal and legal systems, that is meant to support survivors but often doesn’t, just because of the way it’s designed. So, Uttanshi, I’d love to know that, what do you think about how we can improve this support infrastructure for survivors?
Uttanshi
Thank you for that question, Vandita. And I feel like I want to answer that with two different lenses, right, the first thing is what do we do better to improve service delivery within the justice system itself and which comes from a very psychosocial lens, right? Like, can we perhaps include concepts of trauma, informed lawyering within school curriculum? Can we train law enforcement officials, lawyers, judges to speak with survivors from a lens that is inclusive, from a lens that is survivor centric? That is, constantly looking towards ways by which we can make sure that the process of seeking justice is not rooted in stereotypes and not rooted in biases, but really rooted in the experience of the survivor faces, rooted in the needs of the survivor, and positioning ourselves as people who are not necessarily making these decisions for them, but as people who are rearranging their resources in a way which really help us suit the needs of survivors better.
But the second part of what I want to talk about is also how there is a physical element to access to justice, which really brings down the conversation to something like- if I want to go to court today, how likely is it that my case is even going to get listed? How likely is it that I’m going to be able to take days off my work, and be able to go to court? How likely is it that the court is being cognizant of my needs as a survivor, and is it even accessible from a physical viewpoint, right? Which takes me to a few points about how we have a phenomenal case backlog and that leads to a lot of other things. One, obviously, I don’t know with certainty my case is going to be registered. I don’t know with certainty how long my case is going to take and I may not have that sort of time and energy to invest within the legal process. What it also does really, is it further desensitizes the police, the lawyers, the judges towards the concerns that survivors are facing and only sees us as one person amongst hundreds of different litigants or one person amongst thousands of different cases at the court is hearing, which is true, but what it also ends up doing is, it makes the survivor highly, I think, afraid of approaching a justice system because that justice system will respond with apathy. That justice system will look at the survivor merely as a witness. And while we understand that the backlog and the workload on these people is extremely high, its impact on the individual survivor is unparalleled. Its impact on the survivor can be one that is heavily retraumatizing, making the justice system wholly unattractive to begin with.
Even in places where survivors are able to access the courts, even in places where cases get registered and cases are being heard, there are a lot of problems with court infrastructure. Things like, should I really be in court with the perpetrator while I’m giving my testimony? And that happens, right? Like in a lot of cases, we see that happen. There are a few guidelines, of which I think are applied to the Delhi High Court, which have a few provisions. So, one, they say that the prosecutors and the perpetrator don’t have to enter from the same entrance into the courts. They have specific entrance points for these different parties. They have special provisions for in camera proceedings where my statements are being recorded in a personal space where the accused person is not present, where the general public and the media is not present. So these are all very minor infrastructural changes which can make the process of giving statements of being examined a lot better for survivors than they currently are. While survivors are being questioned in open court, there are thousands of strangers available outside, there are thousands of media persons waiting to hear from us and, you know, reporting on crimes, and I don’t want my story to be thrown around like that. The third thing is, again in relation to court infrastructure, how accessible are courts to persons with disabilities? How much access do we really have to technology? So, for example, with the pandemic, everybody moved online, right? And courts were no exception. Of course that was a good reaction. Of course it was a kneejerk reaction. Of course, it was something that we had to do because without that there would be no scope for access to justice to begin with. But having said that, shouldn’t we now at least be thinking about alternatives? Why aren’t we moving beyond access to tech, or at least thinking about how more people can have access to tech so they can have access to tech justice as well? Why are we in a society today which says if you don’t have access to tech, you also don’t have access to justice?
In another thing, again related to court infrastructure, is my access to court rooms. How many districts really have courts which are accessible to everybody, and I mean access from a very transport-oriented point of view here. How long will it take for me to be able to go to court? Can I walk to courts, right? Do I always have to get a bus? Do I always have to get a car to be able to go to courts? Things like that.
When it comes to appeals also, you know, and there are statistics which prove this, that the number of appeals that go to the Supreme Court are obviously a lot more higher from cities in the northern parts of the country than the southern parts of the country. And that ties back to the point about access, right? Like even though I want to go to the Supreme Court and file an appeal, I can’t do that because it will require me to take a flight. It will require me to take days off from work, which is probably not true for somebody who’s living in Delhi, which is where the Supreme Court is as well. Now, all of these points really tie into how access to justice is so much more than just talking about, yes, free legal aid for everybody, which is another debate altogether, but from a very, very basic infrastructural lens also, I feel like access to justice is very, very impoverished in India and we really need to start thinking of ways by which we can really talk about access from every level.
Vandita
Those are some very pertinent points, Uttanshi. I remember undertaking a research study years ago, where we looked at what does this sort of barrier mean for access to justice for persons from different communities and we looked at it at the District Court and the state High Court level, right? And I remember even assessing that for people who came to court every day, they were losing income, and this meant very different things for different people. People in jobs that did not like cut salaries for the day off, they were okay coming into court. People who had supportive workplaces, who gave them days off were okay coming into court, but for a lot of people with considerations to even continue the case for things like ‘Every day that I have to come to court, I lose this much daily wages. I spend so much on transportation.’ There were so many people that I spoke with that said that, you know, we either carry food from home but if the case is enlisted all day then it goes on forever and we maybe haven’t carried as much, so we stay hungry because purchasing food outside is a concern. And I feel like this intersecting with survivors of gender-based violence, who often also just don’t have as much access to social support systems, which could be their friends or family, can have a really detrimental effect on who even comes to court, what sort of cases the court ends up hearing, and then what sort of Judgments are formed and on the basis of that what sort of laws sometimes are formed, or what a general sentiment and perception of a certain kind of violence becomes in the national like mindset. We start perceiving cases of sexual and gender-based violence also in a certain way because of the cases that come to court. And even reaching court often can be such a barrier itself.
Ruchika
Also something I want to sort of state is that I think the punitive nature and the adversarial nature of the legal system completely misses the point that putting away one perpetrator or one harm-doer into prison isn’t going to make society safer or isn’t going to make the world free of gender-based violence. That’s not how it works. We can’t just isolate everyone who sort of causes harm or commits a crime and put them away and then expect the problem to be solved. What we need to do is that we need to address socio-cultural factors that lead to gender-based violence and the other intersecting systemic oppressions in the first place in order to not only, first of all, prevent gender-based violence from occurring, but also in order to get survivors of gender-based violence, the justice they need in the forms that they need.
Vandita
Definitely, Ruchika, thank you for bringing that up. I find that behind this is also a lot of underlying socio-cultural factors, and these are often rooted in various systems of oppression, right? Patriarchy, heteronormativity, Brahmanism, capitalism. And what this also ends up doing is, it creates a script of sorts for how people of different identity make-ups must behave, especially to maintain a certain power differential amongst groups. So, I don’t just think of how certain people who hold more power in different societal setups behave, but it also creates a script for like, ‘Oh, what does a good victim look like? How should a person from a certain background behave?’ And I feel like these are not only stereotypical and not only restrictive, but they also act as a barrier for someone to be able to imagine justice outside of the script of what they’ve been told is possible, and we need to be addressing this, right? Like getting, one, people to see everyone as equal and not seeing any person as less than. However, we have to start from a place of knowing that that is not true right now and how we can work towards this. Second is definitely fixing the power differential, and that’s not going to happen only with behavioural change mechanisms. We are going to have to bring in checks and balances at every level within the judiciary, within the police system, to ensure that there is a way for people to address the inherent power differential that can exist between a survivor and perpetrator, which could be within like a family dynamic, it could be with a stranger, it could be with someone at the workplace. There are so many ways in which perpetrators often hold more power, even identity-based power, over the survivors. And I think the final thing, especially important for all of us to be looking at, is how do we unlearn harmful stereotypes and biases that exist within us? Not just as people who are part of like a formal or legal system. I find that each of us has a responsibility and each of us has a stake in what sort of justice a survivor is able to get in a formal system. Our stereotypes, our biases, play out and become the stereotypes and biases of formation, right? And they often influence law, they influence policy, and in many cases, they might be able to influence judgements. So, we have to be thinking a lot more about this. Even small comments that you might think are straight comments, but like comments that perpetuate victim blaming, that perpetuate rape culture. These create a supportive environment, one, for these incidents to happen and second, for the survivor to not be able to get true justice as they might want to. Until we don’t do that, I truly don’t believe that we can bring in sustainable change for survivors of gender-based violence or even otherwise.
Uttanshi
I definitely agree with that, Vandita, which also I think adds to our conversation about how by reducing the issue of gender-based violence to formal justice systems, we’re literally only at the tip of the iceberg, only talking about the symptoms without really addressing the causes which make that particular form of violence really apparent, right? Like there is so much more that leads to a rape really happening. There is so much more that happens to a case of domestic violence resulting in physical violence. And all of these underlying issues, as long as we don’t talk about them, we really will not be able to address gender-based violence the way we would like for us to, which is not to say that the conversation about bringing changes in the formal justice system, thinking about alternative and restorative justice mechanisms are not necessary. Of course, they are necessary, but just a highlight about how we can’t talk about these things in a silo. We can’t talk about altering or reforming the formal justice system without also talking about addressing gender-based violence’s root causes. And an understanding of these causes, an understanding of the lived realities of individuals I think will inevitably introduce empathy and kindness in a system that is built on the foundations of hostility, punishment and skewed power dynamics, which is what the formal current justice system is. I can’t emphasize enough how much we need to start looking beyond the law, looking beyond the formal justice system to really start thinking about gender-based violence in a way that looks at not just justice for survivors post the act of violence, but also looks at violence as a continuous everyday act which manifests in different forms, and talking about responding to these everyday acts of violence as a way to reduce gender-based violence.
Vandita
We hear a lot about due process in our conversations around justice, and we also often urge survivors to like speak up and approach formal legal systems, but we don’t give the same time to analyze the system or talk about building whole new systems that function on principles of fairness, humanity and intersectionality and often our advice is very one-sided. We don’t really sit down with survivors and try to first understand, what are the outcomes that they want and what is that pathway that will truly take them towards these outcomes? I feel like I’m guilty of that as a lawyer, but I know that even others often push for form and legal justice and I know that there is a way to think of processes outside of it and even within this system in a way that can support survivors more holistically.
Ruchika
Thank you, Uttanshi, for spending time with us today and answering some very, very important questions and also leaving us with a lot of questions for future episodes and conversations as well that we hope to explore and ideally find answers to.
Uttanshi
Thank you. Thank you, Ruchika, Vandita for having me join into this conversation. It was very enlightening for me to learn and listen to you all as well. And I hope that we’re able to continue having these conversations in a more sustained manner.
Ruchika
We hope to see you in our future episodes where we converse with various guests in search of justice. See you next time.
| Who Said It Was Simple by Audre Lorde There are so many roots to the tree of anger that sometimes the branches shatter before they bear.Sitting in Nedicksthe women rally before they marchdiscussing the problematic girls they hire to make them free. An almost white counterman passesA waiting brother to serve them first and the ladies neither notice nor reject the slighter pleasures of their slavery.But I who am bound by my mirror as well as my bed see causes in colour as well as sex and sit here wondering which me will surviveall these liberations. |
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About the In Search of Justice Podcast
As we strive to collectively build towards social justice, it becomes imperative to challenge and reorient the very conceptions of justice. Justice, in popular culture and the zeitgeist overall, has been synonymised with carcerality, which presents a very myopic perspective of justice and diminishes the significance of justice as an intrinsic human right. Further, in the case of survivors of abuse, pathways to justice are further limited and often don’t include the survivors themselves in the process. Justice thus, becomes a destination, an outcome, rather than a collaborative, collectively-built journey or process. Through this compilation of the transcripts of the In Search of Justice Podcast, we aim to explore this discourse surrounding justice, particularly in the context of gender-based violence, in bite-sized episodes. Co-hosted by Vandita and Ruchika, these conversations seek to navigate the multiple meanings of justice, especially when it is considered the penultimate goal by questioning carceral systems, introducing alternative justice systems and leading the conversation into how we can build justice systems that are receptive and responsive to the various needs and desires of survivors.