Justice may be defined as the degree of fairness. It is based on the fundamental conception of impartiality without being skewed towards any particular entity, community or gender. In fact, the gendered lens of justice dehumanizes the entire concept of justice. This dehumanization and underestimation of Justice for any gender is unequivocally a travesty of justice. Ideally, the idea of justice is predicated on unhindered availability to all. However, in order to ensure the delivery of justice, access to justice in itself becomes problematic since it is contingent upon multiple factors. To measure justice in any society, one needs to be cognizant of the prevailing social context in which it operates.
It is argued that meaningful justice is still inaccessible for an estimated 5.1 billion population which accounts for 2/3rd of the world population. The question arises of who is in the disadvantaged position when we deliberate over access to justice. It is the women and marginalized groups who face daunting social and institutional barriers while accessing justice.
United Nations report states that “woman constitutes half of the world population, perform nearly 2/3 of work hours, receive one-tenth of the world’s income and own less than one-hundredth per cent of the world’s property.” This statement reflects the critical state of how women stand at the margins of justice.
In this commentary, we delve into the disheartening reality that women and marginalized communities face when attempting to navigate the labyrinthine corridors of justice. A United Nations report paints a stark picture, revealing that women, despite constituting half of the world’s population and contributing nearly two-thirds of work hours, receive only a fraction of the world’s income and own a minuscule share of global property.
Meaning of Women’s Access to Justice
According to the United Nations Development Program (UNDP, 2005) “Access to justice is the ability of people to seek and obtain a remedy through formal or informal institutions of justice, in conformity with human rights standards”. However, the definition was short of being comprehensive in its meaning and interpretation. So United Nations Women, a United Nations entity working at the intersection of gender equality and gender empowerment expanded on the UNDP’s definition and defined it as the “women’s access to justice”. It implies access by women, in particular from marginalized and disadvantaged groups to fair, effective, affordable and accountable mechanisms for the protection of rights, control of abuse of power, and resolution of conflicts. This involves women’s capacity to engage in formal and informal judicial systems, seeking and getting a fair and just solution, and participating in institutions and processes that create laws.
COMPONENTS OF WOMEN’S ACCESS TO JUSTICE
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee did not specifically define the term “women’s access to justice”, but rather broadly discussed the necessary components of what it meant by access to justice for women. CEDAW requires state parties to look at the following six interrelated and essential components of women’s access to justice:
- Justiciability requires women to be able to claim their rights under CEDAW as legal entitlements.
- Availability requires the establishment of justice institutions, such as courts and quasi-judicial bodies, across the whole territory of the State in urban, rural and remote areas, as well as their maintenance and funding.
- Accessibility requires that all justice systems, both formal and quasi-judicial systems, are secure, affordable and physically accessible to women, and are adapted and appropriate to the needs of women including those who face intersectional or compounded forms of discrimination.
- Good quality requires that all components of the justice system adhere to international standards of competence, efficiency, independence and impartiality and provide, in a timely fashion, that leads to sustainable gender-sensitive dispute resolution for all women.
- The provision of remedies requires the ability of women to receive from the justice system viable protection and meaningful redress for any harm that they may suffer.
- Accountability requires ensuring the functioning of justice systems to guarantee that they are in accordance with the principles of justiciability, availability, accessibility, good quality and provision of remedies.
Challenges: A global outlook
It is important to understand that the mere existence of legal remedies and mechanisms cannot determine women’s access to justice when the conditions of access remain impregnated by factors not only inside the legal system but outside it. The grave state of affairs regarding accessing justice can be gauged by the fact that an estimated 5.1 billion people which constitute 66% of the world population are left out of the ambit of justice. Groups such as women and marginalized ones are at the margins of the justice system as they often face social and institutional barriers to accessing justice, such as biases in justice institutions, social stigma, the psychological trauma of bringing claims, and lack of gender-sensitive procedures.
The case of differently abled women warrants a special mention also. For them accessing justice is full of gauntlets. Women and girls with disabilities face multiple forms of discrimination and abuse owing to insidious stereotypes, lack of acceptance, dismissal of their accusations, and imposing attitudes that may scare or discourage them from pursuing justice. Furthermore, complicated or false reporting procedures also exacerbate their agony. A similar situation prevails in the case of aged and older women who lack credible information about their rights and the ways of how to access legal services. What is problematic and worrisome is the rising apathy of enforcement agencies when young and adult girls try to seek justice. These girls face specific impediments while accessing justice because they lack the legal knowledge about their rights and entitlements, and social capacity to obtain legal resources. They are mostly kept out of family matters such as land and company deals. Owing to dependence, guilt, or terror, even women who are conscious of their rights are unable to achieve justice. Many times they may be forced into unwilling marriages or subjected to violence be it at the domestic level, societal or at the level of state. On many occasions, women do not even realize that they are facing it due to the imposed docility upon them due to patriarchal hierarchical structures. Women face everyday violence despite the constitutional safeguards embedded in Articles 14, 15, and 21 of the Indian constitution.
Those women who are victims of crime, face unique challenges including difficulty in reporting crimes or due to the stigma or fear of retaliation, or in many instances lack of sensitivity on the part of law enforcement and other actors of the criminal justice system. In addition to this, there is a perpetual fear among these victimized women that the system may fail to acknowledge and address the specific types of crimes, experienced by them, for instance, domestic violence and sexual assault. In fact, in many circumstances, they are intimidated or blamed which deters them from reporting the case which leads to the rising incidence of unreporting.
Lastly, discriminatory legislation limits women’s right to make decisions and prevents them from accessing a broader variety of resources. For example, unequal inheritance privileges, unequal marriage rights and obligations, and rules requiring women to seek their husbands’ permission before travelling or working. Financial burdens associated with court litigation, such as court fines and transportation costs, also trigger delays or inability to obtain judicial action.
Way forward
States need to address barriers that prevent or restrict the participation of women and girls with disabilities. With respect to access to justice for older women, states must provide older women with information on their rights and how to access legal services; train the police, judiciary as well as legal aid and paralegal services on the rights of older women, and sensitize and train public authorities and institutions on age- and gender-related issues that affect older women. For young girls and adults, the state should ensure that independent, safe, effective, accessible and child-sensitive complaint and reporting mechanisms are available to them. Legal staff must be appropriately trained officials, working in an effective and gender-sensitive manner; that can avoid marginalisation of girls due to conflicts and disempowerment within their families and the resulting lack of support for their rights. There is also a need to abolish rules and practices that require parental or spousal authorization for access to legal and justice services.
Conclusion
Unhindered access for women to justice is a critical pathway for achieving gender equality as it ensures the protection of economic assets, bodily integrity, political voice and redress on an equal basis with men (UN Women, UNDP, UNODC and OHCHR, 2018). Access to justice bridges the gap between women’s rights in law and their rights in real terms. The importance of ensuring justice is also stated in the 2030 Agenda for Sustainable Development, and its specific goal 16 “peace, justice and strong institutions”. The state’s role in providing access to justice is indispensable, encompassing the enactment of protective laws, the provision of legal aid, and the creation of responsive and supportive legal system. By recognizing and actively addressing the barriers that women face in seeking justice, societies can move closer to a more equitable and just future.
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