The Lawyers Collective Women’s Rights Initiative (“LCWRI”)’s mission is the empowerment of women through law. This is based on the belief that law is an instrument of social change and can be used in different ways to further the constitutional and human rights of women. Since its inception in 1998, the LCWRI has been actively engaged with the entire legal regime of addressing the rights of women in law.
Despite decades of concerted efforts by NGOs and civil society, the overall status of women and their legal entitlements still call for long struggles. Even today, women occupy a devalued position in society. This is manifested in different forms of grave human rights violations such as domestic / sexual violence, sexual harassment at the workplace, identity based gender violence and sex selective abortions to name a few. These forms of violence result in the negation of equality rights of women. It is also in the exclusion from all public spaces and spheres of activities such as meaningful employment. In the absence of a state sponsored social security network and unemployment guarantees, they become dependent on their male relatives for protection and support doing them further into the trap of violence.
The LCWRI provides legal inputs to the women’s movement. The LCWRI through its experience of providing legal aid to survivors of sex based discrimination, violence, abuse and crimes, has realised the need to analyse the working of the laws and investigate ground realities when it comes to implementing laws relating to women. At the LCWRI, our objective has always been to find out the efficacy and relevance of legislation and legal systems and recommend its better use, as well as to initiate and spearhead law reform processes, whenever required. Law reform recommendations are formulated by keeping in mind the lived realities of women. The recommendations put forth by the LCWRI are directed not only towards recognising equality rights of women but also towards creating an enabling environment in which such rights can be asserted. The LCWRI’s efforts in creating legal awareness are guided by the overall objective of empowering women.
The work of the LCWRI has in the past years have focused on a wide range of issues such as domestic violence, sexual harassment at the workplace, sexual assault, reproductive rights, trafficking / commercial sexual exploitation, violence faced by victims of religious intolerance etc. Our most successful campaign has been the enactment of the Protection of Women from Domestic Violence Act in 2005. The success of this campaign heralds in a new era of law making in which the demand for a law is articulated by the civil society and the content of the law is arrived at through a consultative process directed at consensus building. This successful experiment, at the initiative of the LCWRI, has demonstrated that the process of law making is no longer the sole preserve of the state but is participatory with civil society.
Rationale adopted by the LCWRI :
The LCWRI was set up with the mission of empowering women through law. It is based on the belief that law is an instrument of social change and can be used in different ways to further the constitutional rights of women.
Identifying areas of focus :
At the time of its initiation, the LCWRI received numerous requests from organisations across the country to pursue litigation on trafficking in women and children, prosecutions for rape against powerful politicians and implementation of laws relating to the ban on sex pre-selection. Each of these issues presented a grave violation of women’s rights. A policy decision was therefore taken to bifurcate the litigation load of the LCWRI into PIL’s to be filed to realise equality rights of women on broad based issues and to pursue routine cases on focus areas.
In the early stages violence against women was identified as one of the biggest stumbling blocks to the empowerment of women. Hence it was decided that area of focus while undertaking routine cases would be aspects concerning violence against women with particular emphasis on the issue of domestic violence. There was a twofold objective behind taking on cases on domestic violence. First, violence is in the private sphere, the family was not addressed by the law and remained hidden. It was identified as one of the major impediments to the development of women and their participation in the public sphere. Secondly, it trained young lawyers in court procedures and allowed for discerning trends in patterns of violence faced by women and decision-making by women in this context. The first hand information collected through this process informs any law reform proposals that the LCWRI has made in its years of existence. The impetus for our successful campaign for a civil law on domestic violence was gathered from our experience of providing legal aid to women facing domestic violence.
Viewing focus issues through the lens of substantive equality :
The LCWRI views all issues concerning women through the lens of anti-discrimination and equality. This allows us to contextualise wide-ranging issues within the lived realities of women and suggest a holistic approach in dealing with such issues.
Domestic violence is a manifestation of inequality within the home. It is therefore, not enough to advocate for the implementation of laws criminalising domestic violence. There is a need to create an enabling environment in which a woman is able to assert her rights and seek legal recourse. It is, therefore, essential to address the inequality within the home and recognise rights that counter such inequality to enable women to seek legal action. Given the lack of support a woman is provided with, it is unlikely that a woman will ever resort to legal remedies unless she is assured, at a minimum, of a right to reside in her home. This has a bearing on property and matrimonial rights of women that are currently within the realm of separate personal laws of religious communities. The right to reside that has been recognised through our campaign for a civil law on domestic violence is applicable only in circumstances of violence. In order to recognise women as equal stakeholders within the family, it is essential to review personal laws governing property and matrimonial rights.
The Indian Constitution separately recognises the right to religion. The right to religion, as provided in the Constitution, is not an absolute right but subject to limitations based on public order and morality as well as non-derogation of other rights guaranteed under the Constitution. It is under the auspices of protecting the right to religion that discriminatory personal laws have been upheld by the Supreme Court. As women’s lives are mostly confined to their homes, the continuance of such discriminatory laws is a major impediment in pursuing the goal of substantive equality. The LCWRI has, persistently engaged with the regime of personal laws, through litigation and advocacy initiatives, in order to achieve the goal substantive equality of women. The position taken in this regard is that while religious rights of communities have to be respected, it cannot be to the detriment of women’s equality rights.
Sexual harassment at the workplace
Equality rights of women have to be recognised not only within the home but also in her interactions with the outside world. A woman’s right to a safe working environment is an essential pre-requisite for her engaging with economic processes that are not confined to the home. Hence, the LCWRI has engaged in providing legal aid to women facing sexual harassment at the workplace. Lessons learnt from this aspect of our work have been translated into the creation of legal literacy materials and drafting of a comprehensive law on sexual harassment.
Sex selection and sex selective abortions
Another example of using an equalities framework in addressing violation of women’s rights is our position on the issue of female feticide. Sex selection and sex selective abortions are one of the reasons for declining sex ratios. The law seeks to address the issue by criminalising the disclosure of the sex of the fetus detected during the provision of pre-natal diagnostic care and sex selective abortions . The process of implementation of the laws is fraught as women face the possibility of prosecution under the existing provisions of the law. A woman’s right to abortion is not recognised under Indian law; instead, there are liberal grounds under which women can seek an abortion. The quandary is to provide a theoretical basis for recognising a woman’s right to abortion while simultaneously restricting this right to prevent sex selective abortions. A right to abortion recognised as being part of a woman’s right to privacy does not have any answers for preventing sex selective abortions. After all, if a right to abortion is part of the privacy rights of women then there can be no restrictions placed on such rights. However, if the right to abortion is articulated within an equalities framework, keeping in mind the disproportionate biological and sociological burdens placed on women both during child bearing and child rearing, then restrictions can be placed if the right is used to negate the equality rights of women. Hence it is our position that, right to abortion is primarily an aspect of the right of a woman to control her own destiny and autonomy in deciding when she wants children and how many. It cannot be used to decide that she wants only male and not female children. Hence restrictions can be placed on the right to abortion in larger public interest. Declining numbers of women in the population impacts on the women as a social class. This is the aspect of public interest that requires protection while considering restrictions to the right to abortion.
Even so, the LCWRI has consistently advocated against the criminalisation of women seeking sex selective abortions under the existing legal regime on the issue and in its implementation. There must be recognition of the fact that decisions made by women are made within a patriarchal context. In our experience of providing legal aid, we have come across many instances in which domestic violence has exacerbated due to the failure of the woman to bear a male child. In these circumstances, the role of the law should only be towards the limited purpose of regulating the practice of medical professionals who are complicit in the commission of the offence.
The equality framework in relation to reproductive rights and issues of sexuality
In the equality framework adopted by the LCWRI, a special emphasis is placed on the aspect of reproductive rights and issues of sexuality. This requires an examination of the concept of equality and its interplay with the notion of reproductive rights.
Men and women are not the same because of biological differences. Despite this fact, an adherence to the “similarly situated” doctrine would mean that women would have to be like men to ensure the applicability of the guarantee of equality. Therefore, this doctrine is not reflective of the lived realities of women, particularly in their reproductive functions of child bearing, which is biologically defined and their related roles in child rearing, which is socially defined. Procreation and women’s role in it greatly contribute to the subordinate status of women in society. The right of a woman to reproductive control and access to an enabling environment to exercise this control is a crucial aspect in women’s struggle for empowerment and gaining equal opportunities. The context, therefore, compels the need for the recognition of “reproductive rights” not only to be separately articulated for women but also based on the theory of equality that does not attempt to place men as a reference for women. A recognisable and enforceable legal framework on reproductive rights is a prerequisite to the end goal of women’s empowerment.
A woman’s experience of gender inequality is based in a large part on the formulation of sexuality and the ascription of sexual roles in society. In the words of Catharine Mackinnon “sexuality is to feminism what work is to Marxism” . Defining sexual roles is, as in the case of reproduction, done with reference to a male standard and puts in place relations of dominance and subordination to the detriment of women. To work within this framework would only be to respond to standards set by men. The attempt is, again, in the words of Catharine Mackinnon, not to make legal categories that trace and trap the status quo, but confront by law the inequalities in women’s condition in order to change them .
Women’s conditions are determined in the context of concrete realities. Experiences of economic deprivation, adherence to cultural traditions and socially defined roles, gender based violence, of being the bearers of identity, have to be accounted for and reflected in the formulation of gender specific legislation and the application of “gender neutral” laws. Focus issues of the LCWRI are, therefore, contextualised in the lived realities of women. For instance, the issue of violence cannot be examined in isolation but in the context of women’s overall status in society, the nature of property ownership, traditional, cultural and religious influences that have a bearing on the nature of support she might access and the decisions that she makes.
Similarly, equality rights of women in the workplace have to be considered in the context of available livelihood options, existence of safe working environments, negotiating powers within mainstream structures, social security options and the availability of a supportive work environment.
The LCWRI’s contribution is focussed within the realm of law. However, it acknowledges the need for other forms of advocacy and its own need to forge links with other social movements to transform legal equality to social equality.
Proven Strengths :
LCWRI is based on its proven strength in the following areas
• Its proven track record of committed cause lawyering over the past 2 decades
• Its existing legal expertise and availability of trained legal personnel.
• Its interface with the judiciary, the law enforcement authorities, the police, the legal community, statutory authorities and the government.
• Its networking with partner NGO’s and experience in building national level coalitions and broad-basing the ‘ownership-stake’ of an issue to make it a community concern.
• Its accessibility to the affected community /persons who can directly approach the LCWRI, either individually or collectively.
These proven strengths of the LCWRI have been acquired over the years through the practice of the Lawyers Collective as a whole and by the LCWRI as one of its unit. The following section takes a brief look at the history of the Lawyers Collective. The three main activity cells of the WRI are :
1. Legal Aid Component
The Cell provides quality legal services inclusive of legal advice and opinions. It also undertakes public interest litigation on behalf of different groups in an attempt to bring about progressive changes in the law. The LAC drafts complaints on behalf of the clients in civil law disputes and also prepares clients for recording statements at the Police Stations and in the court in criminal cases under Sec 498A, Sec 376, Sec 304B and other legal cases. It also initiates proceedings in higher courts for the purpose of establishing precedents, which advances women’s rights. The Cell works in close coordination with NGO’s, service providers or state agencies such as the National Commission for Women (NCW) to facilitate the client’s access to legal services.
1.To provide legal assistance to women facing domestic violence, sexual harassment at the workplace, victims of sexual assault, child sexual abuse, and discrimination faced in matrimonial matters.
2.To file PIL’s in order to enforce human rights standards.
3.To organise and participate in alternative dispute mechanisms, such as conducting Lok Adalats in collaboration with statutory bodies.
4.To document experiences gathered in providing legal aid
5.To facilitate a survivor’s group to support women litigants while accessing legal remedies, generating livelihood options and providing a support base for campaigns
Public interest litigation/ social action interventions :
Since 1978 there has been a substantial amount of public interest litigation undertaken on behalf of women, children and bonded labour. Public interest litigation has been an essential component of the LCWRI project from its very inception, focused as it is on legal change. Some of the major PIL’s and social action litigation filed by the LAC are Geeta Hariharan v Reserve Bank of India, Daniel Latifi v Union of India, CEHAT, MASUM and Dr Sabu George v Union of India and other, Anweshi Women’s Counselling Centre v State of Kerala, Air India and Bar Girls cases.
Survivor’s group :
In recognition of the fact that survivors of violence are in an ideal position to understand and empathise with other survivors, the LCWRI has facilitated the formation of a “Survivors group” in Mumbai. The objective of this initiative is to make this group self sustaining with limited support from the LCWRI and to draw support from this group in future to sustain legal advocacy efforts.
Participation in alternate dispute mechanisms :
The LCWRI has successfully organised and participated in 2 Lok Adalats in collaboration with the Delhi State Commission for Women and Delhi Legal Services Authority. With a little over a 50% settlement rate the results of these Lok Adalats have been a tremendous success in providing expeditious settlement and relief to the parties.
Victims of religious intolerance :
Articles 25 and 26 of the Indian Constitution recognise the fundamental right to freedom of religion. Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Despite these Constitutional guarantees, the nation’s secular fabric is frequently torn asunder. The anti-Sikh riots of 1984 and the Gujarat anti-Muslim pogrom of 2002 are glaring instances of communal violence aided and abetted by the state’s acts of commission and omission. As is well acknowledged, women bear the brunt of such violence, both as it occurs and in its aftermath. The physical and sexual offences committed against Muslim women in Gujarat reflect how women, as bearers of community identity and honour, are specifically targeted for violence. Needless to say, such extraordinary gender specific violence occurs in addition to the more routinised gender-specific discrimination that women experience within their own religious or ethnic communities.
The 2002 Gujarat pogrom prompted several organisations working on human rights to mount a co-ordinated effort to aid the victims. Immediately after the riots, the year 2002, the LCWRI sent teams of lawyers to Gujarat to provide legal assistance to victims. Since then the LCWRI has been working consistently towards seeking justice by holding the State Government of Gujarat and its functionaries accountable for their acts of omission and commission.
The LCWRI has also taken on the following activities in this regard:
• Monitoring legal proceedings in different fora
• Facilitating the setting up of networks of para-legals and lawyers to represent victims in legal proceedings.
• Training para-legals for the abovementioned purpose.
• Creating a resource base of materials and evidence collected on the Gujarat carnage and legal proceedings.
2. Research and Documentation Component
LCWRI is an interface between academic inquiry and social action. The research division of LCWRI is motivated by the belief that the pursuit of knowledge should be a socially relevant activity. The Research and Documentation Cell supports litigation, aids skill building and feeds advocacy by researching into issues being pursued in court. The Cell documents and collates national and international laws and practices pertaining to women’s rights and human rights. It works in close collaboration with other organizations working on similar issues and disseminates legal information in easy and readable forms. The Cell has an in-house capacity building documentation center generating publications and formulating legal manuals on gender specific laws that can be used by forums working on women’s rights and human rights issues. Our research projects and surveys have been appreciated for their scientific rigor, policy-level recommendations and action-oriented insights.
1.Undertaking action oriented research into human rights issues with a view to strengthen existing laws and propose new laws towards achieving the constitutional goal of equality.
2.Promoting multi-disciplinary approaches for researching on issues pertaining to human rights generally and women’s rights particularly.
3.To undertake legal research on and document and collate national and international laws and practices concerning women’s and human rights.
4.To document and collate literature, such as research papers, parliamentary proceedings, Law Commission reports, to name a few, on laws relating to women, and other marginalised groups.
5.To conduct empirical research on the implementation of laws and their impact on women’s lives.
6.Conduct investigative and fact-finding missions for supporting proceedings in court.
7.To prepare position papers, fact sheets and backgrounders on various facets of the law vis-à-vis discrimination against women.
8.To maintain a documentation centre consisting of legislation, studies, reports and cases on issues of human rights, women’s rights, constitutional law, labour rights, environmental rights, international law, and all other issues concerning social justice.
9.To collate the legal experiences of the LAC to discern trends in violence and to document the work carried out by the LCWRI on a regular basis.
10. To support the work of the LAC by undertaking research on issues that is pending before the court.
11. To support the work of advocacy and capacity building by generating resource materials for use in advocacy strategies.
12. To provide a research base to argue for law reform towards achieving constitutional goals of equality.
13. Encourage a holistic approach to the towards understanding of women’s rights from a human rights perspective by documenting influences of sociological, developmental, legal, economic, and other developments.
14. Regularly updating information on current events and press releases, etc.
3. Advocacy and Training Component
The organization carries out several legal literacy workshops and training programs in schools, colleges, law enforcement agencies, policy makers and local communities to senstitise women about their rights. Initiatives have been taken to create awareness for the need of law reform or create new laws in order to safeguard the needs of women in general. This is done in consultation with various NGOs and organization that are working in the same field. Over the years, the Cell has conducted workshops/consultations, participated in expert committees on empowerment of women and conducted workshops/seminars for gender awareness in laws.
1.Consensus building at the regional, national and international levels.
2.Forging a national and international network of organisations and individuals to advocate for the realisation of human rights in India and supporting cause lawyering efforts at the national level.
3.Spearheading national campaigns for the promulgation and implementation of human rights based laws.
4.Liasing with state/ statutory authorities for proposing new legislation
5.Forging collectives with members of the civil society to strengthen access to justice.
6.Monitoring legal developments and the implementation of specific legislation such as the Protection of Women from Domestic Violence Act, the draft law on sexual harassment at the work place, proposed amendments to sexual assault laws, laws impacting on the reproductive rights of women, trafficking etc.
7.Advocating for the incorporation of a gender perspective in the implementation of laws.
8.Providing technical support to other human rights movements and campaigns.
9.Encouraging the use of law as an instrument of empowerment.
10. Legal trainings to law enforcement agencies, NGO’s, policy makers and others to use the law with a human rights perspective.
11. Advocating for the incorporation of human rights training in the curriculum of other disciplines such as medicine, economics, etc.
II. Methodology :
In keeping with the overall objective of empowering women and realising the goal of substantive equality, the focus of LCWRI is on critically examining the effectiveness of laws and recommending its better use. In order to achieve this objective, the work of the Lawyers Collective is informed by the experience of pursuing litigation in court and is supported by action oriented legal and empirical research. The advocacy efforts of the LCWRI are primarily directed towards spreading legal awareness, consensus building and linking with other organisations to inject a multi-disciplinary approach in the implementation of laws.
The LCWRI approaches issues at the micro and macro levels. The micro-level intervention includes supporting victims of violence by providing legal counselling, legal representation and facilitating access to other service providers. At the macro-level, the efforts are directed at consensus building, pursuing social action litigation with a view to precedent setting, liasing with state authorities in advocating for the adoption of best practices that is collated from international standards, our own experience in providing legal aid at the micro level and successful practices in other countries around the world.
In all of this the LCWRI does not attempt to supplant state agencies in their role of upholding and implementing laws. Instead, its efforts are directed towards holding state authorities to their statutory and constitutional roles and recommending strategies that are most effective in realising goals of gender justice.
Accordingly, the work of the LCWRI is divided into three components. The components work seamlessly to constitute an organic whole with each unit complimenting and inputting into the work of the other. The three components of the unit focus on legal intervention, advocacy and capacity building, and documentation as defined below.
The experience of the Legal Aid Cell in providing legal assistance to women facing domestic violence and other forms of discrimination provides the base from which the LCWRI initiates advocacy and research activities by identifying goals and strategies. At the High Court and Supreme Court levels, it focuses on judicial activism to bring about changes in the law. In order to do so in the most compelling manner, the Legal Aid Cell relies on research information (through the conduct of empirical research, case analysis, literature reviews and exhaustive documentation of laws, reports, publications, etc.) generated from the research and documentation component. The advocacy and capacity building component supports the Legal Aid Cell by focusing on law reform and disseminating information to relevant stakeholders through trainings and legal awareness workshops. The overall goal is to create an environment where activism and research, fieldwork and theory inform each other in order to bring about systemic legal change for a more just society. The methodology adopted by the LCWRI is based on the belief that, in order to be most effective, the women’s movement must operate at different levels simultaneously, targeting varied stakeholders and issues.