Softer Laws, Harder Wars

IN a country where female foeticide and dowry deaths are a harsh reality, the Supreme Court last fortnight stayed the execution of the "hanging of the first woman in post-Independence India". This, after vociferous lobbying by the media and hectic interventions by the National Commission for Women (NCW). A befit-ting victory for the Indian women's movement in our 50th year of Independence! Or is it? Unfortunately, equality is a complex issue. In the year the country's five decades of liberation were celebrated, "saving" Ram Shri, some argue, shouldn't quite have been based on the fact that she is a woman. And between the initial headlines that announced 37-year-old Ram Shri's appointment with the gallows and later informed us of her temporary, uncertain reprieve, the issue of gender equality seems to be at stake.

Not that anyone grudges Ram Shri, the mother of an 18-month-old daughter born in prison, her respite. Hopefully the final verdict will reflect that our Law sanctions capital punishment only in the "rarest of rare" cases. Ram Shri, like any other male convict, is entitled to justice. And here simplistic stances and statements come to an end.

Making submissions on the behalf of Ram Shri, her father and brother, all of whom have been convicted for a gruesome multiple murder, senior counsel R.K. Jain is reported to have appealed that the apex court rule on the "salutary principle" of abolition of death sentences on women convicts. Earlier, the NCW had observed that it would be a shame indeed for our country to hang a woman in its fiftieth year of independence. Not to be outdone, newspapers had opined that Ram Shri's death sentence should perhaps be reconsidered keeping in mind the fact that the execution would deprive a toddler of her mother.

The Supreme Court will obviously rule on the merits of the case. But was the hype and the hoopla actually propagating a different set of laws for women? Are we saying mothers amongst women should have yet another set of laws? Shouldn't law be gender-blind?

"Women are demanding equality in every walk of life, so why these special concessions in law? Each case should be judged individually on its own merits, according to its own facts. If a woman is capable of committing heinous crimes, then she should be judged for it like anyone else," comments Justice Kuldip Singh. The "green judge" feels that the courts already reserve death penalty for the "rarest of rare cases" and that should be protection enough for all seeking justice.

Vehemently against capital punishment, Justice Rajinder Sachar of the People's Union for Civil Liberties (PUCL) tends to agree with Justice Singh. However, he notes: "Sometimes gender cannot be ignored while making a ruling. A man who kills his wife because she has been torturing him for years is different from a woman who kills her husband for the same reason. While sentencing in the latter case, one has to realise and recognise the peculiar and disadvantaged position of women in society."

A harsh reality that, former member of the Law Commission P.N. Bakshi points out, was kept in mind by the British courts when they acquitted a woman who had killed her husband after years of torture in the famous Ahluwalia case. "Justice cannot be gender-blind in a categorical sense," he says. "Gender and, for that matter the social reality of the offender, can often be a relevant factor, if not a conclusive one, in judging the totality of the offence. For instance, lesser sentences have been passed abroad when women have killed their infants in post-delivery delirium because psychiatry has established certain scientific facts to help disburse justice."

 Narrowing in on the Ram Shri case though, if the publicity the case got were to have affected a ruling that gave her a lesser sentence because she is a woman and a mother, then is there a danger of this becoming a precedent? How welcome is such a precedent? Could Ram Shri's case—if she were to be given a softer sentence because of her gender—be quoted to argue a kinder treatment for the five women among the 26 sentenced to death in the Rajiv Gandhi assassination case? Or, could it be quoted to seek lesser sentence for a sister-in-law who had a young child and had conspired in murdering a bride for dowry?

LEAVING aside specifics on a matter that is sub-judice, says Amir Ullah Khan, who is with the UNDP's Project Large on law reforms in the economic sector: "There is always a danger of introducing troublesome precedents. For instance, in 1962 an excise tax case debated whether the onion was a vegetable or not. It took six years to decide that it was indeed a vegetable. Meanwhile, 10 other such cases went to court: some about beetle leaves and some coconuts!" Facts, he points out, should have been brought to the forefront in the Ram Shri case, not procedural faults. "It might have been neater to argue only for reprieve just on the basis of the facts of the case. To restrict oneself to the loopholes in the arguments presented against Ram Shri rather than to make it seem as if it's a gender issue that's being fought for."

But what happens when women's organisations, in all good-intentions, end up rescuing a "woman and a mother" from the death row? "It could be really harmful. It reinforces a broader conservative view in the court that looks on women as powerless, helpless victims who have to be rescued. And in this specific case, the entire exercise separated the mothers from the non-mothers and reiterated the values of motherhood just like some cases reinforce the virtues of female chastity to prove a point. Gender is not confined to motherhood," says lawyer Ratna Kapoor of the Feminist Legal Research Centre.

Though she is against capital punishment, Kapoor feels that the "highly protectionist" stance taken up by those who took up the cudgels on behalf of Ram Shri could be more harmful than ben-eficial to women in the long run. "This was a human rights case that became exclusively projected as being a women's rights issue. It wasn't a 'rarest of rare' case, so in all probability the sentence would have been lessened anyway. In a broad sense it's really what happened to the Shah Bano case where the system split her identity into a Muslim and a woman and forgot that she was both. She was a Muslim woman."

 Supreme Court lawyer Meenakshi Arora feels that, if handled irresponsibly, the "gender factor" publicised in cases like Ram Shri's, could create certain prejudices in the mind of the judiciary. She warns: "Advocating two standards while arguing for lesser sentencing for women could backfire. If the lobbying is about leniency in crimes by women, some judges might think why not so for crimes against women." Yes, it's a double-edged sword. An issue, where, as Kapoor warns, black and white stances cannot be taken. "Most such debates, discussions and write-ups end up being simplistic, with one side projected as being right and the other wrong," she says.

So, while a progressive women's movement should ideally take care not to be claustrophobically inward-looking and share none of its concerns with the overlapping social realities, harsh facts about the biases against women that thrive in our courtrooms cannot be ignored either. In 1995, the alleged rapists of Bhanwari Devi were acquitted through a judgment that said since "the offenders were upper-caste men, the rape could not have taken place because Bhanwari was from a lower caste". In 1989, the Supreme Court passed a judgment in which the sentence of two policemen convicted of gang-rape was reduced using the moral character and conduct of a minor victim. The minor's character was described by the bench as "lewd and lascivious".

Startlingly, of the 109 judges questioned all over the country by Sakshi, an NGO working against violence on women, for its comprehensive report released in 1996 on Gender and Judges: a Judicial Point of View, 64 per cent felt that women must share the blame for violence committed against them. A whopping 78 per cent felt that their daughters, sisters or any other female relative would be better off married. More than half felt that men who abuse their wives should not be banned from the matrimonial home. Of the 80 respondent women lawyers, 55 per cent said they had at some point or the other been subjected to comments about their physical appearance or dress within the court room.

Conclusive proof really that a formidable battle is at hand. In a country where a criminal offence is perpetrated on women every seven minutes, one woman raped every 53 minutes and one murdered for dowry every 110 minutes. As Indrani Sinha, of a Calcutta-based NGO working for the rights of rescued women and children in prostitution, says: "All laws have to be relevant for all women at all times. The women's movement should be fighting for nothing more and nothing less."