I am talking about the recent Bill, on rape that was cleared by the Cabinet to be tabled in Parliament. Along with other provisions proposed in the Bill, the one that has left many angry, agitated and frowning is the one that proposes for only women judges to try rape cases.

The Bill has been drafted by the Law Commission of India and has found approval from the National Commission for Women. The Bill does have certain good and much needed recommendations to make such as:

a) All victims will have right of appeal against acquittal of accused. Currently, only the State can go on appeal.

b) Witnesses can complain to magistrate if pressured by accused. Statements of witnesses and accused to be recorded before magistrate.

c) Video recordings to be treated as admissible evidence in court. At present, videos can only be used as corroborative evidence.

d) Lawyers can accompany for strength and comfort of rape victims during in-camera questioning by advocates of the acussed.

But why propose ONLY women judges to carry out rape trials? According to reports it is meant to do away with “ the tough questioning resorted to by defense lawyers to browbeat and shame rape victims in courts normally presided over by male judges”.

The Bill argues that it is a move, which will ensure that rape victims are provided with a comfortable zone if the judge is a woman. To me it is another way of saying “if rape has to do with women let the women tackle their problem on their own.” It is a way of boxing an issue, which involves both men and women, into tight compartments of women’s issue. As if violation of a woman’s body is solely to do with women and not with human rights per se.

Instead of questioning why, in the first place, do male judges allow such incidents of humiliation and next to rectify their gender attitudes, the Law Commission has decided to take the easy way out by pulling out the male judges and replacing them with women. There is no concern, interest or initiative to deal with the gender bias and power structures that rule the mind set of those sitting on the bench.

What appears to me is that The Law Commission does not want to burn its fingers by admitting that when it comes to the legal system and the issue of rape justice is not blind but biased. It does not want to tamper with the prejudices and the ‘attitudes’ of its male judges even if it is at the cost of the victims who they are meant to render justice to. And indeed if justice is blind then why the assumption that male judges will be less sensitive and women judges more so? “Why the association between good gender justice and women judges?” as stated by Ratna Kapur of the Centre for Femininst Legal Research.

We know for a fact that it is not just men but even women who can be perpetrators in cases of violence against women. Women too can be insensitive when it comes to rape and blame other women for ‘calling upon’, ‘inviting’ the rape. Though rape is a matter of violation of boundaries and bodily integrity, it is not seen in isolation from the socio-cultural gender roles and power structures that exist in our society. Whether it is the perpetrator, the victim, the policeman or policewoman, the male judge or the female judge all come with a social baggage. Therefore to assume that women judges will be the answer could well lead to another dead-end.

I am not saying that women judges are not sensitive or that they will not benefit the justice system in any way. But to ghettoize them into rape cases can put additional pressure on them to be neutral and end up with the same insensitivity that is feared. On the other hand it could lead to women judges being allocated to rape trials only thereby discriminating them along professional lines. Add to this the fact that there is already few women who have made it as judges, now are they to take on the burden of all the rape cases (and think how that will worsen the situation of delayed justice) and also never have the opportunity to try any other cases and be boxed in.

Technically speaking this proposed amendment does not guarantee whether having only women judges for rape cases, will in any way accelerate proceedings or increase conviction rates. That this proposed amendment is superfluous is evident when we count the number of women judges that are there in the Supreme Court- zero- or in the apex court- only three. Gender justice and sensitivity in rape trials seem far-flung ideas if the bench that dispenses justice hardly has any women judges to seat it.

Justice regarding rape cases requires much more than just replacing the gender of the person seated on the bench. It requires lifting the ambiguity over the legal definition of rape and redefining it as a violation of boundaries- of the body and mind irrespective of age, class, caste, relationships or professions. It needs to fill loopholes and strategize scientific and rational methods of delivering justice. And above all it requires building an atmosphere where both men and women equally share the onus of responsibility towards victims of violence.