Gender, Poverty and Criminal Justice System in South Asia

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Gender, Poverty and Criminal Justice System in
South Asia
Prof.Amita Singh Chairperson Centre for the Study
of Law and Governance JNU Project
Director Governance Knowledge Centre-Capacity
Building for Poverty Reduction JNU-Department of
Administrative Reforms, GoI Delhi
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POVERTY HUNGER INJUSTICE

• In worlds poor population of 1.3 billion people
  515 million came from South Asia.
• South Asia is the area counting the largest
  amount of poor, approximately 528,000,000 people.
• In 1999 of the one and a half billion population
  in the South Asia region 35 were not expected to
  survive to the age of forty.
• half our total population was illiterate,
• over one fifth did not have access to health
• 63 did not have access to sanitation.
• 'One does not enjoy human rights with a bare
  body and empty stomach

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Growth alone is not enough(WDR 2004, WB 2003 a,
Devarajan 2002)
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Are markets benign?
Is Citizen a monolith?
Is State a disappearing institution?
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The message

• Process of development is inherently political
  hence women in poverty should be empowered to
  take care of their lives.

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How do you find women in policies?

• The criminalisation of poverty coupled with the
  complete inability of the poor to negotiate the
  criminal justice system is a major human rights
  crisis in South Asia
• Sex-disaggregated data UNPF 2000,41 WOMEN
  (Bangladesh),21 India abused
• State institutions participatory statistics
• Legal framework access of women to it

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Solid base exists in the Constitution

• Article 14 provides that the state will not deny
  to any person equality before law or equal
  protection of laws.
• Article 22(1) provides the right to consult and
  to be defended by a legal practitioner of ones
  choice by a person who has been accused and
  detained in custody.
• Advocates Act 1961

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Slow reforms

• Reports of the Bhagwati Committee (1949), Trevour
  Harries Committee on Legal Aid and Legal Advice,
  14th Report by the first Law Commission (1958)
• These could not be implemented for lack of funds
• incorporation of Article 39(A) through the 42nd
  Amendment Act, 1976, based on the recommendations
  of the Expert Committee on Legal Aid, 1973, on
  Procedural Justice to the People under Justice
  V.R.Krishna Iyer.

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Deviation from meaningful reforms

• 1995 Judicial Authority act India, for
  restricting rights of access to few situations
• Basic Democracies Act 1959, Punjab Local
  Government Ordinance, 2001 (Musalihat Anjuman
  Committee-Gul hasan, Meerwala, Vani in Punjab,
  Sangchatti in Sindh and Swara in NWFP. Moreover
  whenever a Siakari or Karo Kari (honour killings)
  murders are committed ----- Panchayat justice
  implemented!

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Jirgah and Lok Adalats

• Colonial Legacy of Frontier Crime Regulation
  (FCR) generally known as black law due to its
  harsh and discriminatory provisions.
• Jirga, like Panchayat in Punjab and Sindh,
  despite ban by Sindh High Court in 2004they
  continue under the chairmanship of Members of
  Parliament, Nazims
• Restricted use of Muslim Family Laws Ordinance
  1961
• Bangladesh-Shalish women were not allowed to be
  present in traditional shalishes as late as the
  1970s and 1980s. Among the victims who attended
  their shalish only 4 victims in Bangladesh said
  that they could speak during the shalish, but the
  number was 8 in West Bengal.

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Access to Justice Movement

• CAPPELATTI 1978
• Legal Aid movement (1960-80)
• Public Interest Law and
• Alternative Dispute Resolution.

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Access to Justice implemented

• Khatoon vs. State of Bihar in AIR 1979 S.C. page
  1371, the Supreme Court held that the right to
  free legal services is an essential ingredient of
  reasonable, fair and just procedure for a person
  accused of an offence and it must be held to be
  implicit in the guarantee of Article 21.
• Khatri vs. State of Bihar AIR 1981 SC 9288, it
  was held that Legal Aid must be made available to
  an accused form the stage of first production
  before the magistrate.
• Legal Aids Services Act 1987 NALSA ESTABLISHED

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Exceptional Individual initiatives

• order of the Delhi High Court to release 600
  inmates languishing in preventive detention with
  immediate effect in the Tihar Jail.
• visit of judge to Tihar Jail for deciding cases
  at hand and clearing up long pending cases.
• For ecosystem people-Justice Mohd. Haleem
  Justice Saleem Akhtars role, Kasur, Kallal Kahar
  and Dhobi Ghat, New Murree Project case,
  Islamabad Chalet case

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Solutions

• Access to Justice not Access to Courts
• Justice in its current form is part of the
  problem.
• Service delivery is critical.
• Alternative Justice is not the (only) answer
• One need not wait for Police Reforms as there is
  enough in law for them to act for protecting a
  woman

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Role of the Police

• Indian Penal Code 1860, chapter VIII OFFENCES
  AGAINST PUBLIC TRANQUILITY(141-160)-PROVOCATION
  TO RIOT,PROMOTING ENIMITY, IMPUTATONS ASSERTIONS
  PREJUDICIAL TO NATIONAL INTEGRATION,RELIGIOUS
  OFFENCES,DEFILING PLACE OF WORSHIP WITH INTENTION
  T INSULT,
• Religious Institutions (prevention misuse) Act
  1988
• Places of Worship ( Special Provisions) Act 1991
• Police Act 1861-Duty of police Officer, section
  23, Regulation of public assemblies and
  processions and licensing of the same.

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What should policies address?

• CAPACITY BUILDING of women Employment!
• Training in technology
• Right over their lives
• Free access, simplification of legal language,
  developing ADRs and legal obligation like China

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Thank you