That the legal profession in India, and litigation in particular, suffers from a scarcity of women is no state secret. The abject under-representation of women on the Bench as well at the Bar is all but evident.

But what is the story when it comes to the women who approach courts for relief?

The numbers certainly show that Indian courts are no place for women. From societal barriers, to infrastructural deficiencies, to the attitude of those involved in the legal process, there are various reasons that could be attributed to women staying away from courts.

The fact that women who are victims of sexual offences and violence face the brunt of the callousness of various stakeholders in the legal process has been well documented. But what about women litigants who are parties in other types of cases?

On the brighter side, there have been positive changes over the years that point to a trend where courts are slowly but surely becoming more aware of the needs of the woman litigant.

On International Women’s Day 2019, we take a look at the difficulties faced by women litigants across India.

A skewed ratio

First, we take a look at the numbers. The latest statistics put out by the National Judicial Data Grid (NJDG) reveal that out of a total of 3,00,92,394 cases pending in district and taluka courts, only 29,35,826 of these are filed by women. To put that in perspective, about 10% of the total cases in these courts are filed by women.

While this number could also be construed to mean that the pendency of cases filed by women is less, the reality is quite different.

In high courts, that number is even worse. Out of the 42,69,509 cases pending across the high courts, only 77,553 cases are filed by women. Essentially, only 1.8% of the litigants in high courts are women. The percentage of cases filed by women ranges from 19.99% at the Rajasthan High Court to as low as 1.44% at the Gujarat High Court.

Stats taken from NJDG website, as of March 8

Lack of access to justice

Problems related to infrastructure are rife, particularly in lower courts. A study conducted by Vidhi Centre for Legal Policy covering district courts in the Delhi NCR region revealed that most court complexes did not have clean or usable washroom facilities for women. The Bharatpur court complex in Rajasthan had no washroom for women.

A paper titled Grappling at the Grassroots: Access to Justice in India’s Lower Tier published in 2014 highlighted the other infrastructural issues faced by women in district courts located in Maharashtra, Gujarat and Himachal Pradesh. As per the study, public transportation from these courts was unreliable or unavailable at night, there was an absence of security to prevent and protect women from routine harassment and intimidation, a lack of adequate seating in waiting areas, and gender-based verbal prejudice.

Supreme Court lawyer Karuna Nundy highlights the barriers to access to justice that women come across.

“Women get much less access to justice than men. Hurdles include distance to and from courts – distance is, after all, gendered. It’s easier for a man to leave commitments to follow up on court dates. Lack of women’s toilets in general and in State buildings, language barriers, having enough money to get a decent lawyer are other issues. In a divorce proceeding, for instance, generally the likelihood is that the husband has a better lawyer than the wife.”

Nandini Khaitan, Partner at Khaitan & Co, recounts her experience of a court in West Bengal where there were no toilets for women.

“When I asked her and others about the sanitary situation, they pointed to a small enclosure covered on three sides, outside the building but within the court complex (for which they were very thankful). A tarpaulin roof pitted with holes, and a tin door which did not lock, were arrangement enough for the women there. After all, there was a bull sitting outside keeping guard. The men believed there was a women’s toilet in the building, but no one knew where. Usually courts, especially high courts, have a women’s bathroom (to be used at one’s own risk), but a complete absence was a first for me.”

A Kafkaesque problem

Another part of the access to justice issue – and this may not be a problem particular to women litigants alone – is the non-inclusiveness of the legal procedure in courts.

The 2014 study notes that litigants are confused on how to fill out legal paperwork, as well as which forum to approach for relief. A young woman in Maharashtra whose mother accompanied her for moral support explained, “I don’t know anything about law and the process of court hence I do not have the courage to face the process…all by myself.”

The language barrier is another problem faced by litigants. The fact that proceedings and filings are in English leave litigants, particularly from rural areas, clueless. The study quoted a litigant who only spoke Marathi as saying,

“Unfortunately, all the laws are printed in English, so I cannot even access the bare laws in Marathi so that I can understand a little of what the lawyers and judges are doing in my case.”

Trials and tribulations of victims

As mentioned earlier, women victims of sexual offences and domestic violence are often the ones most let down by the legal process.

Women’s Rights lawyer and co-founder of MAJLIS, Flavia Agnes says that from the Magistrate’s Courts to the Sessions Courts, to even High Courts, different forums have different problems.

“When a victim of rape comes to give evidence in a Sessions Court, the way she is treated by defence lawyers and other court staff is extremely demeaning. The law does not permit the way the questions are asked, but it still happens. Even women lawyers are treated very badly. This has been a problem since the 1980s, but nothing has changed.”

“The law does not permit the way the questions are asked, but it still happens. Even women lawyers are treated very badly.”

Not only are victims who approach court asked humiliating questions, they are also asked other questions in a humiliating way, Agnes states.

“Sometimes, the victims are very young – sometimes as young as 12 years old. Even they are not spared from being asked these questions. They are asked very intimate and personal questions about the sexual act, in a very humiliating manner. And the judge does nothing about it. It is the duty of the judge to keep the decorum of the court and to ensure that the dignity of the victim is maintained.”

According to her, programmes carried out to sensitize judges to the needs of the victims have borne little fruit.

“There have been attempts to sensitize judges, but many of them are indifferent. Sometimes, even the women judges are indifferent. There are many safeguards under the law, but what’s the use?”

She goes on to talk about Magistrate’s Courts and High Courts.

“In the Magistrate’s Court, in cases under the Domestic Violence Act, matters are not taken up on time; the judges do not take it seriously. Interim orders are supposed to be passed quickly, and the case is supposed to be disposed of within 60 days. But none of this happens; interim orders are not passed for six months.

In the High Courts, it is even worse. The judges don’t bother hearing DV matters on appeal. They keep it pending for so long.”

Karuna Nundy opines that the root of the problem lies in the fact that such proceedings are not victim-centric.

“Our legal system adjudicates sexual violence with the onus very much on the victim. The victim has to go to court, assist the police – which is usually under-resourced and not as effective as it should be – and then depose as a witness years after the incident has happened.”

The aspect of compensation for rape victims is another aspect Nundy touches upon.

“There is a lot of social pressure for women to not claim money damages for sexual violence. But it is important for women to be compensated for this kind of harm. For example, there will be psychological damage for which you may have to go to a therapist. You may have to take extra measures, you may not feel safe living a normal life. Some women find it hard to engage in romantic relationships, to trust.”

Denial of rights

Another class of women litigants who face the brunt of the process are the ones involved in property disputes. Nundy gives an example she came across recently.

“In a land acquisition case, my team had to remind each petitioner that after the 2005 Act, women are legal heirs as well. The male members insisted that this was not a practice followed by their family.

Very often, if the judge is not looking or if the person doesn’t put in her name, they get left out of the process automatically if the litigation is long and the initial petitioners die.”

The bright side

So, is it all doom and gloom? Not according to Nundy. She cites the example of a recent case where she represented an American human rights advocate who was digitally raped in India back in 2013. Although the case took six years to come to a conclusion, the victim finally won, after a Delhi court found the accused guilty of the offence last month.

“In her case, the consideration with which she was treated in Ila Rawat’s court, and the robustness of the judgment was heartening.”

Another positive is one of the changes brought about by the Criminal Law (Amendment) Act, 2013. Nundy says that it has made a significant difference to how the police treats women complainants.

“One positive thing that happened in 2013 was Section 166a IPC. We worked with the government to bring the provision. It says that if a police officer fails to register an FIR, criminal proceedings can be brought against him. It is almost never used in that way, but once police personnel are made aware of it by a lawyer, they often do register the FIR in a sexual violence case in Delhi.

Things are changing in small but significant ways. While a lot gets said about the negatives, not enough is said about the positive changes.”

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