Gender Disparity in the Criminal Justice System

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Written by: Ms Shalini Gupta

INTRODUCTION

There are various kinds of discrimination in our country. Like discrimination based on colour, race, caste, sex etc. Gender discrimination is not a new concept. Gender discrimination is disadvantageous for women as they don’t get equal opportunities as compared to men including promotion in companies, independence etc.

As per the CEDAW Committee, gender-based discrimination is based on gender stereotypes, stigma, harmful and patriarchal cultural norms and gender-based violence, all of which adversely impact on the ability of women to gain access to justice on an equal basis with men.[1] Discrimination among men and women is not only in India but also in other various countries. But gender disparity in terms of the number of time men and women serve in the criminal justice system is quite different.

Prosecutors and judges treat men and women accused differently. They are very much strict to men as compared to women. Women offenders are less, then also men have to spend more time in prison as compared to women for the same offence. Racial disparity is a factor in the arrests, pretrial treatment, and sentencing of female offenders. Racial disparity is a factor in the arrests, pre-trial treatment and sentencing of female offenders.[2]

DISPARITY IN SENTENCING

In modern times, women are not less than men. They are doing great in every field. But there is one disadvantage that women are also a helping hand in committing crimes with men. In today’s times, women also include as a suspect, accused and prisoners.

The number of women is increasing day by day in prison. When men and women commit the same type of crime, judges may come to a conclusion based on stereotypes that may or may not be true. The UK’s Equal Treatment Bench Book, 2013, which provides general guidelines on sentencing, says “fair treatment does not mean treating everyone in the same way: it means treating people equally in comparable situations”.[3]

It is evident that women get lesser punishment including non-payment of fine when she does any crime taking in concern that she has to take care of her children and family and she is also weak to give harder punishment. Therefore, women get lesser punishment than men for the same crime as of men. But when it comes to the property share, women get an equal share as compared to men.

In 1986, the Supreme Court delivered a landmark judgment that granted women the right to seek an equal share in their father’s property. Also, the adjustments have to be made by the prosecutors as well as judges for pregnant women in courts and tribunals and have to provide a safe environment for them and as a result, judges decide not to imprison them in jails for a longer period.

Consideration should always be given to accommodating pregnant women and new and breastfeeding mothers in any proceedings in whatever capacity they are taking part, whether as parties, witnesses or representatives.[4] Women are also more likely to self-harm in prison than men. This is also one of the reasons women get lesser imprisonment.

The researchers found females twice as likely as males to receive probation and slightly more likely than males to have their charges reduced.[5] A total number of the women death penalty is also very small as compared to men. The overall death penalty is also very low in India. Supreme Court held that the death penalty should be given in ’rarest of rare case’ only.[6]

CHALLENGES FACED BY WOMEN IN CRIMINAL JUSTICE SYSTEM

There are various challenges which are faced by women. Firstly, if the women are victim of any crime, their family members do not motivate them to file a case against that crime rather tell them to keep quite for their so-called reputation specially if it is a case of sexual assault or rape. Secondly, women or their family member may suffer from illiteracy or lack of necessary information about their legal rights.[7]

Women also face financial problems while hiring an advocate or other resources to navigate the system. Women are also at risk of harassment if arrested or convicted. Not only being a victim but if the women want to become a witness then also it is difficult for them as their family does not allow them to be a witness and go to the court of law as they think that court is not the place for women.

The accused family members also harass her so that she did not give any statement in the court of law. This harassment can also happen with the men. But the point is men can deal with these harassments easily unlike women.  She needs police protection if our criminal justice system really wants that the victim should get justice. If the woman is a lawyer or judge, then also she has to face male domination.

Even many clients also do not want to give their cases to women lawyer. A woman judge in Karkardooma courts in Delhi filed an FIR when she was abused by a lawyer. But she was forced by her own chief judicial Magistrate to withdraw the complaint. [8] Presently. There are only 2 female judges in the Supreme Court of India. Women political participation State level is 8.71 per cent (359 /4120 MLAs), the central level is 11.42 per cent (62/543 MPs) and Ministers in Central Government is 8/66, State is 41/ 593.[9]

CONCLUSION

Due to male domination in India, women are not able to enjoy all the privileges given by the Government of India. Although, gender is also the reason for less sentencing to women. if we talk about equality, If a woman can commit a murder, then she also deserves to be given the same punishment as the man deserves. It is not wrong that some unusual circumstances lead to committing serious offences.

In Smt. Paniben vs State of Gujarat[10], where a mother-in-law burned a daughter-in-law alive by throwing kerosene on her body because of the frequent quarrels between them.[11] In this case, there were no unusual circumstances which lead to committing such a serious crime. Therefore, in my opinion, there should not be any leniency while punishing the women accused.

References:

[1] Gender-based discrimination and women in conflict with the law, UNODC, https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-9/key-issues/1–gender-based-discrimination-and-women-in-conflict-with-the-law.html.

[2] Stephanie S. Covington & Barbara E. Bloom, Gendered justice: women in the criminal justice system, STEPHANIECOVINGTON, https://www.stephaniecovington.com/assets/files/4.pdf.

[3] Dhananjay Mahapatra, Gender a factor in sentencing world over, THETIMESOFINDIA (Apr 17, 2017), https://timesofindia.indiatimes.com/india/gender-a-factor-in-sentencing-world-over/articleshow/58213993.cms

[4] Gender equality, JUDICIARY, https://www.judiciary.uk/wp-content/uploads/JCO/Documents/judicial-college/ETBB_Gender__finalised_.pdf.

[5] K.B. Turner, Ph.D., the effect of gender on the judicial pretrial decision of bail amount to set, USCOURTS, https://www.uscourts.gov/sites/default/files/70_1_8_0.pdf.

[6] Bachan Singh vs State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580.

[7] Supra note 1.

[8] P. Ganesan Palsamy, Dinesh Kumar, Gender Discrimination in Indian Judicial system, RESEARCHGATE (Apr, 2018), https://www.researchgate.net/publication/332155146_Gender_discrimination_in_Indian_Judicial_System_Causes_and_Implications.

[9] Rukmani, The Hindu, 20015, p10, RESEARCHGATE, https://www.researchgate.net/publication/332155146_Gender_discrimination_in_Indian_Judicial_System_Causes_and_Implications.

[10] 1992 AIR 1817, 1992 SCR (2) 197.

[11] Sahil Malhotra, Analysis of female offending in India, CRIMINALLAWSTUDIESNLUJ (Jun 5, 2019), https://criminallawstudiesnluj.wordpress.com/2019/06/05/analysis-of-female-offending-in-india/.


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