GENDER DISPARITY IN THE CRIMINAL JUSTICE SYSTEM: ANALYZING THE CAUSES, CONSEQUENCES, AND POTENTIAL REFORMS BY - SWASTIK SINGH
GENDER
DISPARITY IN THE CRIMINAL JUSTICE SYSTEM: ANALYZING THE CAUSES, CONSEQUENCES,
AND POTENTIAL REFORMS
AUTHORED
BY - SWASTIK SINGH
Abstract
Gender disparity in criminal justice is deeply
rooted and can be seen at every stage of criminal justice system. This
disparity results from societal norms, gender biases, and lack of proper
representations of other genders in the functioning of society; this
discrimination results in injustice with minority genders. This paper focuses
on the various causes of gender disparity in criminal justice system, various
barriers like deep seated cultural norms, gender based violence, cultural and
religious factors. Impact of gender disparity in criminal justice system on the
minority gender(s) and the potential reform which can be made to remove the
gender disparity and improve the efficacy of criminal justice system.
Keyword- criminal justice, gender
disparity, minority gender, culture, religious factor
Statement of Problem
Since ancient times,
Indian society has been dominated by males in every field of life, whether it
is policy making, education, administration, making of laws, or enforcement of
laws. As time has progressed and the concept of equality and equal protection
of the law has gained strength, equal representation and equal treatment have
become a new norm and are now recognized by most countries of the world as
basic fundamental rights. Still, the concept of gender equality is seen to be a
far-reaching concept. Gender Disparity can be seen in all the spheres of the criminal
justice system.
Hypothesis
Gender disparity in the
criminal justice system can be reduced by encouraging the participation of all
genders in the policy-making and criminal justice system.
Research
Methodology
Research done using a mix
of methods and data from various governmental sites has been taken to determine
the level of gender disparity at various stages of the criminal justice system.
Reports of law commissions and international organizations have been deeply
analyzed, and various essays and research documents written by human rights and
gender rights activists have been deeply read to find the causes and solutions
of the gender disparity problem in the criminal justice system.
Introduction
Right to equality embodied
under Article 14[1] of
the constitution of India 1950. It is the most important fundamental right, and
it has a wide scope of application. Seventy-five years have passed since we
adopted the constitution of India, but still, the application of the principle
of equality in every sphere of administration seems to be a far-fetched dream.
Disparity still persists in the administration of justice. Equality before the
law and equal protection of the law is still not available to all the sections
of society. Discrimination on the basis of religion, race, caste, sex, and
gender still persists in the criminal justice system. Disparity on the basis of
gender is one of the major impediments in achieving justice and fairness in
society. Gender-based disparity in the
criminal justice system creates significant obstacles to achieving access to
justice for all. This problem disproportionately affects women, who still
face significant barriers in accessing justice, whether they are
victims, witnesses, alleged offenders or prisoners. Criminal justice
systems tend to focus on the needs of a predominantly male
population of offenders and
prisoners, although the global number of women in prison is
growing at a faster rate[2].
The criminal justice
system is divided into three major components: police, judiciary, and
correctional system (Prisons). This research paper will analyze the various
ways in which discrimination happens with the minority gender at various stages
of the criminal justice system, the causes of discrimination and will also talk
about the reforms that could be done in the criminal justice system in order to
avoid such discrimination in future so the efficiency of the criminal justice
system could be improved. The criminal justice system was made by male members
of society for the males to punish and correct male members of the society who
were not following the norms of society and were violating them, causing a
threat to other peaceful members of society. Traditionally, when the criminal
justice system was made, the concept of female offenders and third gender was
not in existence in society. As society has grown slowly, the number of female
offenders has also increased, and at the same pace, crime against women has
also increased. Crime against the third gender has also increased significantly.
It become extremely important to make changes in the criminal justice system so
that it can cater for the needs of the growing society. Such that every
individual, irrespective of any caste or gender, can feel safe.
Gender disparity in the
criminal justice system refers to unequal treatment and representation of
minority genders, especially women in the criminal justice system. It manifests
itself in many ways, such as biases in law enforcement practice, lack of
representation in the judiciary, and gender biases based on gender-specific
stereotypes. Gender sensitization, equitable representation, and fair treatment
across all justice systems can remove gender disparity. Gender Disparity in
criminal justice system is mainly because of the deep - rooted patriarchal
nature of the society. Gender stereotypes special related to women and other
gender is another main cause of the disparity. Mindset of the society needs to
be changed and this change could only be brought by the women’s in the society.
Encouraged participation of women in the criminal justice and gender
sensitization is the only way to bring gender equality in criminal justice
system . The creation of additional family courts to expedite the
resolution of cases, the simplification of bail procedures for women undergoing
trials, and the appointment of more female judges to hear cases involving
female offenders to ensure a better understanding of the circumstances are some
recommendations in light of raising awareness of the issue of female criminals.
GENDER
DISPARITY IN POLICE SYSTEM
Police force is
organization of government for enforcement of law and order, protection of
civilian, catching the wrongdoer, preventing happening of any crime and
providing assistance during emergency.
In today’s time police has a multifaceted role and need to perform various
function for doing its job and meeting the expectation of peoples of the
country police force needs to be gender inclusive and neutral. Women need to be
the part of the police system at levels.
The Ministry of Home
Affairs has advised states to ensure that 33% of Police forces are women. But
still, “women presently constitute 10.30% of the Police Force[3].
As we can see, the participation of women is increasing in every sphere,
whether it is policy-making or administrative field. For good governance of the
country and for removing gender disparity in the police system, it is
imperative to increase the participation of women in the police force. Numerous
public forums have noted that, according to research, the underrepresentation
of women in police forces creates an insurmountable psychological barrier that
prevents women from approaching police stations when a crime is committed
against them. Since women engage in a variety of activities outside of
their homes, the increased presence of women in law enforcement in metropolitan
areas will provide a sense of safety in public areas that they frequently use.
Women joining the police will unavoidably boost the force's reputation, turn
the station into a gender-sensitive grievance resolution facility, and serve as
a catalyst for the removal of gender disparity in the criminal justice system.
Women often faces discrimination
in reporting crime against them at police station. At the police station,
officers who are in charge of registering FIRs generally do not register
complaints because of their patriarchal mindset. In reporting sexual crime,
women are not able to report the crime properly to male reporting officers;
this adds to their trauma and exacerbates their suffering. Chances are that
because of improper reporting, criminals may escape from the hands of law. In
order to facilitate reporting of any woman-related crime, each police station
should preferably about one-third of its staff as women. Women police personnel
are very effective due to minimal usage of brawn and better communication with
the general populace. However, each station must have sufficient infrastructure,
particularly separate toilets and restrooms for women. This will not only make
stations more approachable for a common woman but will also make a
traditionally patriarchal police force more sensitive towards women's problems[4].
The police force is for
the safety of the people. A gender-inclusive and sensitive police force will
best serve the citizens. The old concept of colonial times should be changed;
police are for helping the people, not for threatening them. The establishment
of women's police stations is a major appreciated reform by the Indian
government in reducing the gender disparity in the criminal justice system.
Places with women's police stations have shown an increase in crime reporting
by women. The opening of women's police stations increased
reported crime against women by 22 per cent; in areas with a WPS, there was a
21.4% rise in the rates of violence committed against women, a city-level
analysis revealed. At the state-level, too, the results were consistent, posting
a 22.5% jump.[5]
Previous
studies have demonstrated that a greater number of women in the workforce
resulted in a decrease in corruption. Additionally, compared to men, women are
more patient and sensitive towards the victim. One woman complains of
police apathy every two hours, where they are either discouraged, turned away
or harassed further when trying to lodge a complaint[6]. The
recording and subsequent filing of FIRs increased in WPS, and officers are less
likely to display skewed gender norms regarding the roles of women or tolerance
of violence committed against them. Thus how we can reduce gender disparity in
police system.
GENDER-BASED
DISPARITY IN JUDICIARY
As far as the data is
concerned, as of January 2024, only 13.4% of judges in the High Court and 9.3%
of judges in the Supreme Court are women[7].
Inclusive judiciary is the need of the hour. A gender inclusive court can
strengthen the believe of people in judiciary it not only help in reducing the
gender disparity but will also make the overall system of judiciary gender
sensitive. As per 2023 the data of 15 States provided by the Bar Council of
India indicates that there are 2,84,507 women lawyers. They account for only
15.31% of the totally enrolled 15,42,855 lawyers[8].
The data above shows the gender disparity in the judicial component of the
criminal justice system.
The representation of
women in bars and benches shows the patriarchal mindset of the criminal justice
system, which often leads to injustice with the minority section. The judiciary,
being the guardians of fundamental rights, has a duty to strike a balance
between genders by removing various types of gender-based stereotypes. Gender
disparity is an old age form of discrimination that hampers the process of
justice and delivers prejudice to the rights of gender minorities (women and
transgender). Supreme Court, in order to break the paradigms, had often set
examples through its various gender-neutral judgements. Like in the case of Vishaka
Vs State of Rajasthan[9]
Supreme Court commissioned the Vishaka guidelines that defined sexual
harassment and put the onus on the employers to provide a safe working
environment for women. It is a deep-rooted stereotype regarding women that after
marriage and children, women are not able to work with efficiency as compare to
men and also families do not allow women to work many organization make
arbitrary rules which prejudice the rights of the women to work supreme court
in order to counter these stereotypes in its famous case of Air India vs
Nergesh Mishra (1981) strike down Air India's policy of forcing air
hostesses to resign upon marriage reaffirmed the principle that marriage should
not be a ground for discrimination in employment. Thus how judiciary gave a
strong message that no kind of discrimination is permitted in employment ,and
had tried to remove discrimination against women .
Justice system comprises
not only of Supreme court of India but it also consists of 25 High Courts and 672
district courts in India[10].
Gender stereotypes are often steep through the judgement of lower courts and
High Courts. This ultimately affects the efficiency of the criminal justice
system. A woman filed a complaint on March 30, 2024, alleging that a court magistrate
in Hindaun, Rajasthan asked her to undress to see her injuries. Mina
Meena, the Deputy SP (ST-SC) cell, stated that the survivor refused to comply
with the magistrate’s request. After recording her statement in court on March
30, she registered a complaint against the magistrate for outraging her
modesty. The case was lodged at the Kotwali Police Station and the magistrate
was booked under Section 345 of the Indian Penal Code and the SC/ST Act[11].
In addition to undermining the concepts of justice and impartiality, the
judges' callous comments and patriarchal views serve as a sobering reminder of
the profoundly ingrained misogyny that penetrates society's institutions.
A diversified approach is
needed to address the structural issues in the Indian judiciary and promote a
genuinely feminist viewpoint. Above all, a determined effort must be made to
enhance the representation of women in the judiciary at all levels. This can be
accomplished by implementing work-life balance-promoting policies and
activities that are family-friendly, as well as by having fair and transparent
nomination and promotion procedures. Second, all members of the judiciary,
from judges to support personnel, must participate in thorough and continuous
gender sensitization training. Deconstructing deeply ingrained biases,
contesting patriarchal narratives, and fostering an awareness of the particular
difficulties and experiences encountered by marginalized communities—especially
survivors of gender-based violence—should be the goals of these programs.
Although it will take time
and effort, India's court must become authentically feminist in order to
advance gender justice and equality. India may get closer to establishing a
society in which everyone's rights and dignity are respected, irrespective of
gender, caste, or any other social construct, by tackling the patriarchal
attitudes and biases that still exist within the legal system.
GENDER
DISPARITY IN CORRECTIONAL SYSTEM
The difficulties women
experience in prison are no different from those in the outside world. Since
criminality is viewed as a departure from womanhood, the stigma associated with
being a woman is really considerably greater for female prisoners. As a result,
women who are convicted or suspected of crimes are viewed as abnormal,
malevolent, and even unwomanly. The potential of women being reintegrated into
society is eliminated since they are held accountable not just for breaking the
law but also for violating social norms. Many criminal law
theorists have attempted to explain female criminality using preset
psychological and biological hypotheses in response to these prejudices about
women.
As per NCRB data , women constitute
merely 4.16 percent of the prison population[12].
Because there
are so few women in custody, the requirements of men unavoidably dominate
custodial society. The demands and interests of male inmates are frequently
taken into consideration while designing prison programs and activities.
In Indian prisons, there
are very few female supervising officers and jail employees. The percentage of
female jail employees and officers was only 8.28% as of 2015. As a result, male
staff members and officials frequently take charge of the affairs of female
inmates, which is unpleasant and leaves them more open to abuse and harassment.
Furthermore, jail officials and employees lack the awareness and training
necessary to address the unique requirements of women.
Conclusion
Gender Disparity in
criminal justice system is mainly because of the deep - rooted patriarchal
nature of the society. Gender stereotypes special related to women and other
gender is another main cause of the disparity. Mindset of the society needs to
be changed and this change could only be brought by the women’s in the society.
Encouraged participation of women in the criminal justice and gender
sensitization is the only way to bring gender equality in criminal justice
system . The creation of additional family courts to expedite the
resolution of cases, the simplification of bail procedures for women undergoing
trials, and the appointment of more female judges to hear cases involving
female offenders to ensure a better understanding of the circumstances are some
recommendations in light of raising awareness of the issue of female criminals.
Promoting
gender-responsive non-custodial measures to reduce the unnecessary imprisonment
of women through legal reform, capacity building training and
awareness-raising Strengthening women's access to legal aid though
legal and policy advice, capacity building for legal aid institutions and
service providers, as well as legal empowerment for women in
the community; Supporting prison administrations to provide
for the distinctive needs of women in prison, in order to
eliminate discrimination and achieve substantive gender equality,
through policy reform, training and social reintegration programmes; Promoting
the equal representation of women in criminal
justice institutions, particularly in positions of authority,
through policy advice and mentoring.[13]
[1] The State shall not
deny to any person equality before the law or the equal protection of the laws
within the territory of India.
[2] United Nations Office
on Drugs and Crime, Gender in the Criminal Justice System, https://www.unodc.org/unodc/en/justice-and-prison-reform/cpcj-gender.html
(last visited Oct. 28, 2024).
[3] Ministry of Home
Affairs, Government of India, Advisory on Increasing Representation of Women
in Police, No. 15011/21/2020-SC/ST-W, https://www.mha.gov.in/sites/default/files/AdvisoriesonincreaseofWomeninpolice_30062021.pdf
(last visited Oct. 28, 2024).
[4] Sudha Ramachandran, Why
We Need More Women in Police Force, The New Indian Express (Oct. 7,
2019), https://www.newindianexpress.com/opinions/2019/Oct/07/why-we-need-more-women-in-police-force-2044600.html.
[5] India’s All-Female
Police Stations are Better at Keeping Women Safe, World Econ. F. (Nov. 27,
2018), https://www.weforum.org/agenda/2018/11/india-s-all-female-police-stations-are-better-at-keeping-women-safe/.
[6] India’s All-Female
Police Stations are Better at Keeping Women Safe, World Econ. F. (Nov. 27,
2018), https://www.weforum.org/agenda/2018/11/india-s-all-female-police-stations-are-better-at-keeping-women-safe/.
[7] The
under-representation of women in the judiciary, The Hindu (Oct. 28, 2024), https://www.thehindu.com/opinion/lead/the-under-representation-of-women-in-the-judiciary/article68807637.ece.
[8] Justice Hima Kohli
on Women in Law, livelaw.in (Oct.28,2024), https://www.livelaw.in/top-stories/justice-hima-kohli-women-in-law-100-years-to-legal-practitioners-women-act-273748
[10] Critical Analysis of District
Court Situation in India, Legal Serv. India , https://www.legalserviceindia.com/legal/article-9225-critical-analysis-of-district-court-situation-in-india.html
[11] Rahul Yadav, Case of Karauli:
The Struggle for Gender Justice in Indian Judiciary, Feminism in India
(Apr. 5, 2024), https://feminisminindia.com/2024/04/05/case-of-karauli-the-struggle-for-gender-justice-in-indian-judiciary/.
[12] Indian Prisons Need
Gender-Sensitive Reform as Women Inmates Face Double Marginalisation,
Firstpost (Date), https://www.firstpost.com/opinion/indian-prisons-need-gender-sensitive-reform-as-women-inmates-face-double-marginalisation-10837981.html.
[13] United Nations Office on Drugs and
Crime, Gender in the Criminal Justice System, Justice and Prison
Reform, https://www.unodc.org/unodc/en/justice-and-prison-reform/cpcj-gender.html
(last visited Nov. 5, 2024).