Author: Sandipa Bhattacharjee, IV year of B.A.,LL.B.(Hons.) from KIIT, SCHOOL OF LAW
INTRODUCTION
Discrimination of many types exists in our country. Discrimination is based on color, race, caste, sex, and other factors. Discrimination based on gender is not a new concept. Gender discrimination disadvantages women because they do not have equal possibilities as men, such as promotion in the workplace, independence, and so on.
Gender-based discrimination, according to the CEDAW Committee, is based on gender stereotypes, stigma, damaging and patriarchal cultural practices, and gender-based violence, all of which impede women's ability to access justice on an equal footing with men.[i]Discrimination between men and women exists not only in India but in many other countries as well. However, there is a significant gender disparity in terms of the number of times men and women serve in the criminal justice system.
Prosecutors and judges have distinct approaches to men and women accused of a crime when it comes to men they are considerably stricter than when it comes to women. Because the number of female criminals is lower, men must do more time in prison for the same offense. The arrests, pretrial treatment, and sentencing of female criminals are all influenced by racial disparities.[ii]
GENDER DISPARITY IN SENTENCING
Women are not inferior to men in today's world. They are excelling in all areas. However, there is some disadvantage that women frequently assist men in committing crimes. Women are now included as suspects, accused, and imprisoned in the criminal justice system.
The number of women in prison is steadily increasing. Judges may draw conclusions based on prejudices that may or may not be true when men and women commit the same type of crime. "Fair treatment does not entail treating everyone in the same way: it implies treating people equally in comparable situations," according to the UK's Equal Treatment Bench Book, published in 2013.[iii]
It is obvious that women receive lenient punishment, including non-payment of fines, when they commit crimes, because they must care for their children and families, and they are also weak to impose harsher penalties. As a result, women receive less penalty than men for the same crime. When it comes to property ownership, however, women are treated equally to males.
The Supreme Court delivered a landmark judgment in 1986, allowing women to seek an equal share of their father's property. In addition, prosecutors and judges in courts and tribunals must make adaptations for pregnant women to offer a safe atmosphere for them, and as a result, judges decide not to imprison them for a longer period.
Females were twice as likely as males to receive probation and were somewhat more likely than males to have their charges reduced, according to the researchers. In comparison to men, the total number of women sentenced to death is also quite low.[iv]The total number of 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 cases only.[v]
PILLARS OF CRIMINAL JUSTICE SYSTEM & GENDER DISPARITY
Nearly all government institutions are patriarchal, which is the root cause and reason for sustaining all forms of gender discrimination. In India, veritably less chance of women working in government services. Historically, men have dominated regulatory institutions, which have favored men over women. Women's rejection leads to a lack of or slow growth, which unconsciously leads to weak policy perpetration and operation. Women were also barred from entering law-making institutions similar to parliament and statehouses, performing in manly dominance in the council. Women are unfit to engage in politics due to socio-artistic, profitable, and political factors. For a long time, women's domestic liabilities and limited domestic positions didn't give them sufficient liberty and commission to share in politics.
Women are underrepresented in the council, denying them the occasion to engage in the drafting of legislation. Women, who make up nearly half of the population of our nation, must debate, discuss, and agree on legislation before it can be legislated and followed.Judges who are women are also subordinated to misogyny. There have been cases of female advocates being blackened by male advocates. When a woman judge in Delhi's Karkardooma courts was subjected to sexual harassment by a prosecutor, she filed an FIR. Her chief judicial magistrate asked her to drop the case.[vi]
Various challenges are being faced by women in their lives. If women are a victim of any crime they generally don't get support from their families. They are being forced to shut themselves thinking about the reputation of the family, especially in the case of sexual assault or rape. In some cases, the women and their families are not aware of their legal rights as well. [vii]Women are also at risk if they are being arrested or convicted for any crime. Even the women are not allowed to be a witness in the cases because of their families.
CONCLUSION & SUGGESTION
There is a need for courts to stop using gender stereotypes when trying female offenders. The issue is not women's low crime rate, but sex-based behavioral segregation. Judges should apply a more neutral basis while taking into account other factors that drive women to commit crimes, rather than using their perception of a woman's role in society. However, there can't be a single criminal justice system for both male and female criminals because that would be only cosmetic fairness when they're still not on equal footing. Offenders with family members should be allowed some leeway; otherwise, their families will suffer as well.
However, this should be regulated to ensure that it does not go beyond the point of being unjust discrimination. To raise awareness about women criminals, some suggestions include simplifying bail procedures for women on trial, establishing more family courts to expedite case resolution, and recruiting more female judges to try cases involving women offenders to ensure a better understanding of the circumstances.
REFERENCE [i]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 [ii]Stephanie S. Covington & Barbara E. Bloom, Gendered justice: women in the criminal justice system,STEPHANIECOVINGTON, https://www.stephaniecovington.com/assets/files/4.pdf. [iii]Dhananjay Mahapatra, Gender a factor in the sentencing world over, THETIMESOFINDIA (Apr 17, 2017), https://timesofindia.indiatimes.com/india/gender-a-factor-in-sentencing-world-over/articleshow/58213993.cms. [iv]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. [v]Bachan Singh vs State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580. [vi]Rukmani, The Hindu, 20015, p10, researchgate, https://www.researchgate.net/publication/332155146_Gender_discrimination_in_Indian_Judicial_System_Causes_and_Implications. [vii]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.