Jindal Global Law Review

WOMEN AND LAW IN SOUTH ASIA

VOLUME 10, ISSUE 2, 2019

Issue Editors : Upasana Mahanta, Sameena Dalwai & Albeena Shakil

Editor's Introduction : U. Mahanta, S. Dalwai & Shakil, A. Women and Law in South Asia. Jindal Global Law Review 10, 149–155 (2019). (PDF)

ARTICLES

1. Position of women in police in India: policy gaps and the need for gender mainstreaming
Devyani Srivastava
Article (PDF) | Abstract


The representation of women in police organizations across India is on the rise. Yet, the role of women continues to be confined primarily to addressing and investigating crimes against women and children. Policy formulations tend to focus heavily on increasing intake of women without equal emphasis on institutional reforms needed to ensure gender equality within police organizations. This is only ghettoizing women police officers, keeping them outside the mainstream of varied experiences and legitimizing segmentation of roles based on stereotyping. This article argues for reconceptualising the role of women in policing. It first critiques key legal and policy initiatives guiding women’s recruitment and role in the police service, both at the center and across states. In this, it focuses specially on the policy of creating all-women police units, explaining how it results more in sidelining women than facilitating an equal growth of men and women. It then draws from ground research on barriers women continue to face within the organization, at all levels, to underscore the need for addressing institutional impediments. Finally, it concludes by emphasizing gender mainstreaming as a strategy for driving wider institutional reforms necessary to ensure women’s integration remains meaningful and equal.

Srivastava, D. Position of women in police in India: policy gaps and the need for gender mainstreaming. Jindal Global Law Review 10, 157–171 (2019). https://doi.org/10.1007/s41020-019-00095-0

 

2. Sexual harassment in academic spaces: a comparative analysis of legal processes in India and Pakistan
Sai Thakur, Shewli Kumar
Article (PDF) | Abstract


In this paper we attempt a comparison of anti-sexual harassment laws and policy frameworks in two south Asian countries – India and Pakistan – specifically in the context of higher education. There are a number of commonalities. Both countries consider sexual harassment a violation of fundamental rights enshrined in their respective constitutions. Both have ratified the UN CEDAW and the legislation on sexual harassment is in consonance with the 19th recommendation of the convention. For the redressal mechanism, the Indian and Pakistani laws rely on internally constituted committees. They have a specially designed policy (Pakistan) and regulations (India) to deal with sexual harassment in the higher education institutes. However, there are a number of points where Indian policy, legal framework and redressal mechanism differ from that of Pakistan. Indian law confers the powers of a civil court upon the IC (Internal Committee) but Pakistan has a Ombudsman over and above the IC and the powers of civil and high court are conferred upon him/her. The IC does not have the powers of a civil court. The Pakistani policy for higher education has made provision for a harassment monitoring cell and harassment monitoring officer. The IC works under his/her supervision. However, laws and policies in themselves do not guarantee prevention and redressal of sexual harassment. One also needs to look at the institutional practice. Therefore, based on our experience of working with the internal complaints committee in a social science institute for last ten years, we show how if implemented properly it goes a long way in achieving the larger goal of providing a peaceful and amicable learning and working environment for all irrespective of their gender. Many had felt that ICs would defeat the very purpose of the Act. The Justice Verma Committee report for example states that “the powers of courts cannot be simply conferred upon domestic committees.” The UGC handbook SAKSHAM however underscores the need for a civil redressal mechanism in the form of an IC rather than a criminal punitive one. What does our experience say? There are a number of challenges facing the IC. Implementation requires a constant interpretation and reinterpretation of the Act by the members of IC who are not always trained in law. The IC members have to often reach out and counsel the complainants specially if they belong to vulnerable groups before the actual written complaint is submitted and which may continue throughout the process. The law does not recognize this as part of the process of redressal. This we argue is only possible because of an internally constituted inquiry committee.

Thakur, S., Kumar, S. Sexual harassment in academic spaces: a comparative analysis of legal processes in India and Pakistan. Jindal Global Law Review 10, 173–196 (2019). https://doi.org/10.1007/s41020-019-00096-z

 

3. South Asian feminist engagements with law: Some explorations in the context of violence against women
Saumya Uma
Article (PDF) | Abstract


Though shaped by the distinct historical and political regimes and institutions in each country, women’s movements in South Asian countries have much in common. The struggle for justice in the context of violence against women is one of them. Women’s movements in Bangladesh, India, Nepal, Pakistan and Sri Lanka have a rich history and tradition of resisting patriarchy and violence by state and non-state actors and pursuing justice and accountability through political struggles and democratic processes. In this article, I examine two decades of South Asian feminist engagements with law in the realm of violence against women. I explore the potential for cross border legal activism, strategy sharing, solidarity, and cooperation. For my analysis, I largely draw upon feminist responses to honor crimes, acid violence, domestic violence and sexual violence. The paper is divided into five parts. In Part I, I introduce the topic and define the parameters of the article. In Part II, I discuss South Asian feminist engagements with law-making and law reform processes. Part III consists of an analysis of judgments that advance gender justice, resulting from feminist advocacy and lawyering. Part IV foregrounds the common journeys, shared experiences and challenges, and common feminist strategies in the annals of law and justice. I conclude this paper, in Part V, with the emerging South Asian feminist jurisprudence on violence against women, and its immense potential in advancing justice in each of the countries in the region.

Uma, S. South Asian feminist engagements with law: Some explorations in the context of violence against women. Jindal Global Law Review 10, 197–221 (2019). https://doi.org/10.1007/s41020-019-00097-y

 

4. Interrogating international law and scholarship for the missing narratives on religious misogyny in South Asia
Sai Ramani Garimella, B. Parthiban
Article (PDF) | Abstract


International Human Rights Law, with its linear approach, addressed discrimination through the prohibition of its practice based on certain identified and mutually exclusive criteria. Such an approach resulted in masking the intersectional discrimination occurring from subjecting rights under one identified criteria to another, either within the same instrument or in related instruments. It also allows member-States to adopt reservations or use limitation clauses in a manner that often leaves the rights of little value to a section of the population. Given the preoccupation with looking at an emancipatory role for international law and democratising spaces, international law scholarship has made a minimal address to this intersectional aspect of discrimination in the context of gender. This research explores the absence of specific guidance from international law and its scholarship streams of TWAIL and FtAIL to understand the ways in which the intersectional discrimination flowing from religion works in the space of women’s rights and the possible methodology to address it.

Garimella, S.R., Parthiban, B. Interrogating international law and scholarship for the missing narratives on religious misogyny in South Asia. Jindal Global Law Review 10, 223–245 (2019). https://doi.org/10.1007/s41020-019-00100-6

 

5. From east to west, can feminist legal strategies be transformative? Post-disaster to everyday times of crisis
Jane Krishnadas
Article (PDF) | Abstract


This article engages with a key question raised by feminist legal scholars from the east to the west: whether women should or should not engage in rights strategies? Are rights systematically exercised to reproduce patriarchal, dominant sites of justice, or do rights constitute a multiple and relational force which may transform sites of justice? The experience of women’s engagements with law in South Asia has created a diversity of critical legal knowledge and scholarship reflecting the pluralism of both women’s identities and needs based on caste, religion, class and sexuality across an array of legal spaces from the family, community and state. Women in South Asian scholarship have complicated the notion of the homogenous legal subject and the static dominant site of justice. In this article I return to my underpinning field research whilst living and working within an earthquake affected area of Maharashtra, India in the post-crisis rehabilitation period (1993–1998). This research explored how women exercised their rights to reconstruct lives at different tiers of justice: in public policy, private legislation and the non-formal sphere of community relations to deconstruct the concept of rights existing within a static framework of justice. Drawing upon feminist discourse across the east to the west, I have analysed the role of rights in post-disaster sites to understand how women move from victims to survivors, beneficiaries to contributors and objects to agents of change to inform contemporary research on how women in post-domestic violence situations may exercise rights to reconstruct their lives in times of crisis in the UK. Through this analysis I argue that rights may be empowering if one can exercise one’s right to identity as agency, resources as capacity and location as mobility, as a three dimensional strategy to transform the framework in which one is situated. Over the last decade, I have actively applied this transformative methodology to create an alternative relational, intersectional and holistic legal paradigm, to transform sites of justice, in times of every day crisis, through the CLOCK/ All India Access to Justice Strategy.

Krishnadas, J. From east to west, can feminist legal strategies be transformative? Post-disaster to everyday times of crisis. Jindal Global Law Review 10, 247–268 (2019). https://doi.org/10.1007/s41020-019-00103-3

 

6. India and the United Nations Human Rights Council: Gender at a Crossroadsenvironment
Bhumika Nanda
Article (PDF) | Abstract


At the core of the human rights debate lies the question of whether human rights can be considered as a universal ideal and yet able to integrate cultural differences from diverse societies. At the global arena the mandate for ensuring and strengthening the protection and promotion of human rights is bestowed on the United Nations Human Rights Council (UNHRC) through the preparation of a Universal Periodic Review (UPR) of all member states of the United Nations wherein every state is given the opportunity to make recommendations on every other country’s human rights record. The latest UPR was conducted in May 2017 and 14 states were reviewed including India wherein 250 recommendations were made to India to improve its human rights record. In this regard India promised to ‘accept’ 152 of the recommendations and ‘noted’ the rest which includes recommendations such as elimination of gender-based prejudices, traditional practices, and provisions of personal status laws that are harmful and discriminatory to women and girls; elimination of criminalization of same-sex relations, criminalization of marital rape, and adequate protections to LGBT citizens. With India being elected as a member of the UNHRC in 2018, this paper seeks to explore and analyse India’s role in the development and implementation of human rights as a member state of the UNHRC in the realisation of gender equality with particular emphasis on the role of the Indian government’s policies and judicial precedents. The paper locates this discussion in the broader realm of the universalism versus cultural relativism debate in the implementation of gender equality.

Nanda, B. India and the United Nations Human Rights Council: Gender at a Crossroads. Jindal Global Law Review 10, 269–285 (2019). https://doi.org/10.1007/s41020-019-00104-2

 

7. Unpacking sexual harassment of women in the context of the #MeToo and the Pinjra Tod campaigns: feminist understandings
Sandhya Gawali
Article (PDF) | Abstract


Sexual harassment is a subjective phenomenon and is pervasive in nature. This paper maps linkages between two contemporary campaigns: #MeToo and Pinjra Tod. Several women are sharing their experiences of sexual harassment on social media using the hashtag #MeToo. Young women students mobilized the Pinjra Tod campaign challenging the sexism of educational institutions towards them, demanding gender just mechanisms, and the constitution of an elected Internal Complaints Committee (ICC) within the university to fight sexual harassment. However, even when redressal mechanisms are in place, instead of going to the ICC, young women are sharing stories and building solidarity through social media. Similarly, while young women students are underlining the issue of lack of awareness, protectionist approaches of the university, they are also demanding that the ICC be autonomous and elected. This article thinks critically about both the campaigns to complicate the standard narrative. Among other, it raises the following questions: What are the conundrums and contradictions that mark these campaigns? Is there a need to reframe the ‘due process’ debate or does due process structurally disbelief the complainant, inhibiting women to even activate the process? Or are women coming out anonymously on social media since as the institutional process fails to assure anonymity to the complainant? Can there be an independent mechanism where women can come forward freely without any hesitation to file complaints?

Gawali, S. Unpacking sexual harassment of women in the context of the #MeToo and the Pinjra Tod campaigns: feminist understandings. Jindal Global Law Review 10, 287–302 (2019). https://doi.org/10.1007/s41020-019-00108-y

 

8. The happy and anxious lives of (feminist) legal scholarship: an interview with Prabha Kotiswaran
Oishik Sircar
Article (PDF) | Abstract


This interview with Prabha Kotiswaran, Professor of Law and Social Justice at King’s College, London focuses, among others, on the many dimensions of postcolonial feminist legal education and scholarship; her own scholarly journey across three continents; insights into the gendered nature of academic labor; the lived dimensions of her feminism, the limitations and possibilities of emerging forms of feminisms in the wake of #MeToo; on her own scholarship on sex work; the misreading of governance feminism; the tradition of materialist feminism; her current project on law and social reproduction; and the imperative for strengthening solidarity between the women’s and labor movements in India.

Sircar, O. The happy and anxious lives of (feminist) legal scholarship: an interview with Prabha Kotiswaran. Jindal Global Law Review 10, 303–320 (2019). https://doi.org/10.1007/s41020-019-00102-4

 

9. Caste, gender, power, and impunity: an interview with V. Geetha
Sameena Dalwai, Upasana Mahanta, Albeena Shakil
Article (PDF) | Abstract


V. Geetha is a feminist activist, scholar and publisher based out of Chennai. In this interview she explores the intertwined concepts of caste, gender and power, their significance in determining the socio-political capital of persons and groups, how they decide access to education and employment (hence, class), and the ability to interact with the state, assume power or be delignated from it. She elicits several examples of violence, massacres, sexual assaults against Dalits in which caste positionality allowed serious crimes to go unpunished, even unrecognized. Drawing upon the rich tradition of Dalit scholarship and Dalit feminism, V. Geetha elaborates on the culture of civic and state sexual impunity in South Asia.

Dalwai, S., Mahanta, U. & Shakil, A. Caste, gender, power, and impunity: an interview with V. Geetha. Jindal Global Law Review 10, 321–330 (2019). https://doi.org/10.1007/s41020-019-00106-0

 

CASE REVIEW

10. Asokan K.M. v. The Superintendent of Police & Ors. (2017) 2 KLJ 974. Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368

Nehmat Kaur

Article (PDF) | Abstract

Kaur, N. Asokan K.M. v. The Superintendent of Police & Ors. (2017) 2 KLJ 974. Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368. Jindal Global Law Review 10, 331–336 (2019). https://doi.org/10.1007/s41020-019-00101-5

 

11. Independent Thought v. Union of India [2017] 10 SCC 800

Eysha Marysha

Article (PDF) | Abstract

Marysha, E. Independent Thought v. Union of India [2017] 10 SCC 800. Jindal Global Law Review 10, 337–343 (2019). https://doi.org/10.1007/s41020-019-00107-z

 

BOOK REVIEW

12. Laila Ashrafun, Women and domestic violence in Bangladesh: seeking a way out of the cage
Saptarshi Mandal
(PDF) | Abstract

Mandal, S. Laila Ashrafun, Women and domestic violence in Bangladesh: seeking a way out of the cage. Jindal Global Law Review 10, 345–347 (2019). https://doi.org/10.1007/s41020-019-00098-x

 

13. Anita Ghai (ed): Disability in South Asia: knowledge and experience
Debalina Dey
(PDF) | Abstract

Dey, D. Anita Ghai (ed): Disability in South Asia: knowledge and experience. Jindal Global Law Review 10, 349–354 (2019). https://doi.org/10.1007/s41020-019-00099-w