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LGD 2001 (1) - Ann Stewart


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Judicial Attitudes to Gender Justice
in India:The Contribution of
Judicial Training

Ann Stewart
Director of the Law in Development Programme
University of Warwick, UK
a.stewart@warwick.ac.uk

This is a revised version of a chapter appearing in 'Governance, Development and Globalization', edited by Julio Faundez, Mary E Footer and Joseph J Norton, Blackstone Press, January 2001.

Abstract

Law related strategies have played an important part in the campaigns of women's organisations to achieve greater equality and social justice within their societies. These campaigns have focussed on the role of the nation state to improve the rights of women across a wide range of areas such as reproduction, property ownership, prevention of violence and employment protection. These campaigns have increasingly been informed by the international women's rights discourse. Many women's organisations use the processes associated with the Convention on the Elimination of All Forms of Discrimination Against Women to put pressure on their governments (Connors, 1996, Charlesworth and Chinkin, 2000, ch 7). One method, which has proven significant, has been the submission by non-governmental organisations (NGOs) of alternative reports on CEDAW. For instance, the Indian NGOs published the report which they submitted in January 2000 to shadow the Indian government's submission to the UN committee (National Alliance of Women, 2000). Some of the campaigns have led to law reforms (see for instance Vishaka vs. State of Rajasthan 1997, SCC 384). However the implementation of reforms through the administration of justice systems have often proven highly problematic. The judiciary is seen at best as indifferent or, at worst, hostile to developing a legal culture based on gender justice (Sakshi, 1996).

Reformers in a number of common law jurisdictions have seen training judges in gender issues as one way of tackling this problem. However such training presents considerable challenges for both educators and recipients and raises a range of questions. Some of these relate to judicial independence and others concern the effectiveness of such activities in bringing about recognisable improvements in gender justice. I will draw on the debates relating to judicial training in the US, Canada, Australia, and England as well as the specific experiences of gender initiatives in common law countries in order to set our project in India into a wider context.

Keywords:India, Judges, Training, Judiciary, Gender, CEDAW, Judicial Education, Accountability, Equality, Project.


This is a Refereed article published on 21 June 2001.

Citation: Stewart A, 'Judicial Attitudes to Gender Justice in India: The Contribution of Judicial Training', 2001 (1)Law, Social Justice and Global Development (LGD). <http://elj.warwick.ac.uk/global/issue/2001-1/stewart.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_1/stewart/>


1. Introduction

This article is concerned with the contribution which judicial education may make to achieving gender justice within India. It is based on the experience of devising and then conducting a programme of judicial education for and with judges in India. Let us begin with the problem as seen through the eyes of a distinguished women's legal activist:

'Unfortunately for women, there are many in the rank and file of the judiciary who consider women as subordinate to men, women as instruments of man's comfort and pleasure. They cannot accept anything contrary. So when they see a woman filing a petition for maintenance or seeking shelter from the husband who batters her, he immediately becomes hostile to her. If a woman's organisation is seen as supporting her case, the anger of the member of the judiciary rises more and the resentment to the complainant woman's very action of reaching out to a court not only becomes obvious, it permeates all the pronouncements from the dais so that the men in the court smile and sneer while women are made to feel belittled and harassed. In such atmosphere, legal proceedings continue to be prolonged. In the process women lose hope …' (Ila Pathak, Ahmedabad Women's Action Group, 30 March 1996).

This statement of the problem can be contrasted with the following comments which are extracted from evaluation questionnaires submitted by District and Sessions Judges, (the rank and file) who have participated in the judicial education programme.

The training has also had a tremendous impact on me in terms of our court work… The training has left an impact in weighing, appreciating and marshalling the evidence… In awarding the sentence also it has left a tremendous impact on me ... .

The training was an eye opener to the fact that females in crowded courts can't depose freely... The impact of the training is on our thinking.

After the training … I really felt the change in me while dealing with the problems of women who are regularly coming to the Family Court seeking justice. There was a total change of perception in the dispensation of justice in gender related issues and there was a thorough change in my attitude while dealing with such issues. Because of the methodology of the training I could very well feel the difficulties experienced by women approaching the court … .

The training was invaluable. Scores of civil property cases involving gender issues would have skipped attention had it not been for the course. Sensitisation towards various aspects like chronic and endemic procedural delays, empathy towards small time defrauded investors, child victims, as well as victims of criminal gang warfares is the result I perceived only as an indirect aftermath of the course.

There is a great impact on me … I am adopting procedures and methods which enable the women, children and infirm persons to come forward and give evidence to their satisfaction … The evidence is being appreciated in a realistic manner and minor omissions and contradictions are overlooked.

My entire perception … In particular with reference to gender and law has undergone a drastic change… Now the cross examination of such victims are restricted and to the point.

This paper will describe the way in which these seemingly significant changes have been brought about and set them in a wider context of debates relating to attitudinal change, judicial education and independence.

Law related strategies have played an important part in the campaigns of women's organisations to achieve greater equality and social justice within their societies. These campaigns have focussed on the role of the nation state to improve the rights of women across a wide range of areas such as reproduction, property ownership, prevention of violence and employment protection. These campaigns have increasingly been informed by the international women's rights discourse. Many women's organisations use the processes associated with the Convention on the Elimination of All Forms of Discrimination Against Women to put pressure on their governments (Connors, 1996, Charlesworth and Chinkin, 2000, ch 7). One method, which has proven significant, has been the submission by non-governmental organisations (NGOs) of alternative reports on CEDAW. For instance, the Indian NGOs published the report which they submitted in January 2000 to shadow the Indian government's submission to the UN committee (National Alliance of Women, 2000). Some of the campaigns have led to law reforms (see for instance Vishaka vs. State of Rajasthan 1997, SCC 384). However the implementation of reforms through the administration of justice systems have often proven highly problematic. The judiciary is seen at best as indifferent or, at worst, hostile to developing a legal culture based on gender justice (Sakshi, 1996).

Reformers in a number of common law jurisdictions have seen training judges in gender issues as one way of tackling this problem. However such training presents considerable challenges for both educators and recipients and raises a range of questions. Some of these relate to judicial independence and others concern the effectiveness of such activities in bringing about recognisable improvements in gender justice. I will draw on the debates relating to judicial training in the US, Canada, Australia, and England as well as the specific experiences of gender initiatives in common law countries in order to set our project in India into a wider context.

2. Judicial Education, Accountability and Independence

Judicial education is a relatively new idea in the common law tradition, only recognised as having a role to play in the last twenty or so years and then only in some jurisdictions (Hatchard and Slinn, 1999). As Armitage (1995) points out, there is a growing need for the judiciary to provide and demonstrate social accountability because public criticism of the professions has become 'increasingly vocal throughout the western world'.

'The professions have been criticised by their own members (both within and between branches of the profession), by consumers (the revolt of the client, citizen and special interest group advocates), by the mass media and by government' (1995, 161).

Such criticism leads to the possibility of outside regulation and intrusion. However accountability to a wider audience immediately raises the issue of judicial independence. The professions have generally responded by taking measures to consolidate their identity and to restore confidence.

'Continuing education became seen increasingly to be a means for professions to improve performance, disarm criticism and thereby to resist pressures to impose external standards on the professions' (1995,161). Thus 'judicial education…. is best understood within the broader context of the professionalisation of the judiciary' (1995, 161).

Judicial education has been embraced to some extent to provide an acceptable means of balancing the need for accountability against that of judicial independence. This view is reflected in the fact that senior levels of the judiciary are increasingly arguing that education enhances independence rather than intrudes upon it.

Once the concept of continuing education is established it raises broader questions of performance appraisal and monitoring. What effect has the education had? Has it been worth it? As Malleson (1999) points out, however, there is overwhelming hostility within the judiciary to the idea of performance review. They tend to counter that it will jeopardise their independence.

The need for judicial independence is not in doubt. It is an essential element in any decently functioning society but as Malleson points out that judicial independence is often linked to appraisal without any explanation of the exact nature of the threat posed. Judicial independence becomes a 'brooding omnipresence' facilitating a mystique and inhibiting intelligent questioning.

'This 'trumping' value therefore makes it a forceful card for the judges to play when opposing any innovation in the judiciary' (1997, 657). Judges have 'sought to ensure that training and performance appraisal are kept within the control of the judiciary in order to prevent these processes being used as a means of exerting influence on the judiciary from outside. However when these claims are scrutinised they are hard to sustain' (1997, 667).

She distinguishes between two possible threats – external and internal - to independence. The former involves interference from the executive, legislature or media, the latter from other judges. Malleson suggests that there are two possible forms of external interference – to the constitutional role of the judiciary[ 1] or to the social services function[ 2] (1997, 659).

'Despite the claims of those who regard the constitutional principle of the separation of powers as the defining element of judicial independence there is a strong case for saying that judicial independence is best regarded as limited to the freedom of interference in individual decision making' (1997, 660).

Training, and performance appraisal conducted under the auspices of the judiciary, does not pose any threat to the constitutional principle indeed this is one of the key reasons why there is such strong support for the idea of training by judges for judges[ 3]. Both are potentially more likely to influence a judge in his/her social services function whether conducted internally or externally. Malleson argues however that:

'If training and performance appraisal were intended to influence the actual decisions of the judges, they would undoubtedly pose a threat. But this is not the case since they are specifically designed to influence the way in which the judges carry out their tasks rather than the decisions themselves' (1997, 661).

The debates on education and independence have been primarily conducted in relation to 'western' common law jurisdictions. The context in other common law jurisdictions can be very different where threats to judicial independence do not come from training programmes but from far more direct interference from the executive and other forces (see Hatchard and Slinn, 1999, Bhagwati, 1989). Nonetheless in India in the early 1990s there was recognition by the Law Commission and the Supreme Court of the need for a greater degree of accountability for judges and that this accountability could be met through training. The Supreme Court in Judges Association Vs Union of India(1991) Suppl. 11 SCR 230, issued a direction to set up an all India Institute for the training of higher officers of the judiciary, including district judges, and a state level institute for training the 'subordinate' judiciary within each state or union territory. The National Judicial Academy was established under the auspices of the Supreme Court to fulfil the all India function while each state High Court was given the responsibility of organising the training within its jurisdiction.

India has therefore adopted the view of other common law jurisdictions that training is necessary and that it should be conducted through the judiciary itself to avoid any interference with judicial independence.

General anxieties relating to judicial independence tend to be exacerbated when the focus for criticism relates to equality issues and in particular if the contention is that there is a perceived gender bias within the judiciary. Gender training is therefore a sensitive area.

3. The Development of Education for Gender Equality

The USA led the way in the 1970s on developing an understanding of judicial gender bias. A similar process of evolution has followed in other common law jurisdictions most notably in Canada, Australia and New Zealand. The development of this understanding was a result of similar processes in each jurisdiction. Women lawyers joined the profession in significant numbers in the 1970s and began to present their observations of gender bias in the courts[ 4]. Their views were documented by, primarily, women social scientists and legal researchers who conducted empirical research on many differing aspects of the legal system and its administration. This research produced a substantial body of evidence of gender bias in all aspects of the system that could be shown to work in many cases to the disadvantage of women. It was felt that judges needed to know about the research and the consequences of its findings.

At the same time there were moves in the United States to establish women's judges associations for the benefit of the small but growing number of women who had reached the judicial office. The academic lawyers and women judges came together to form the National Judicial Education Program (NJEP) to Promote Equality for Men and Women in the Courts.

However judicial training was in its infancy and was, as discussed in the previous section, accepted reluctantly on the basis that judges would be responsible for teaching other judges. NJEP undertook the responsibility for running courses on how gender bias worked in the legal and judicial system. These courses were well documented, showing the type of material used, the educational methods adopted and the reaction of the judges (Wikler, 1993, Buckley, 1994). Generally there was a mixture of reactions. Some judges expressed considerable hostility to the idea of gender bias while others were willing and eager to understand (Czapanskiy, 1990).

One problem was that there was resistance to the evidence of research produced by 'outsiders' – social scientists and legal researchers. The response to this was to set up Gender Task Forces in individual states to collect concrete and specific information about the ways in which gender bias operated. These task forces were composed of trial and appellate judges, legal and judicial educators, attorneys and members of the public ( Buckley, 1994). They conducted a comprehensive survey of all aspects of the court system in the state over a period of, on average, a year and then reported comprehensively. These reports present a disturbingly uniform pattern of bias, thus transforming the problem from one experienced by individual women into a systemic one for the courts and the judiciary (see, for example, Maryland Special Joint Committee, 1990, Ninth Circuit Task Force, 1994, Resnick, 1993for full bibliography). The findings were that:

'with few exceptions, it appeared that gender bias may affect the treatment of women in the profession and substantive law decision making in the area of damages, domestic violence, juvenile justice, matrimonial law and sentencing' (Buckley, 1994, 2).

The education programmes and the task forces investigations continued over a number of years producing, it has been argued, a changed climate it is argued in which the nature and consequences of judicial gender bias are now both acknowledged to exist and understood to be unacceptable in the courts (Schafran, 1985, Buckley, 1994).

In Canada feminist lawyers and campaigners began working on gender issues in the law in mid 1970s, setting up a National Association of Women and the Law. Considerable impetus for action however came as result of the coming into effect of the Canadian Charter of Rights and Freedoms in 1982 although the implementation of the equality provisions was delayed for three years. The Women's Legal Education and Action Fund was established and has subsequently sought equality for women through the Charter litigation. By the late 1980s the judiciary and legal profession was beginning to focus on gender bias issues. Madam Justice Bertha Wilson of the Supreme Court of Canada gave a public lecture on 'Do women judges make a difference?' which stimulated considerable interest and endorsed the need for further investigations into gender bias in the courts (Wilson, 1990). A Task Force on Gender Equality with a judge as Chair was established in 1991 and reported in 1993. Again all aspects of the legal and judicial system were scrutinized carefully and found to be wanting. The report recommended sensitisation courses for judges on gender and racial bias. These have now been established at the Western Judicial Education Centre and are considered to be highly successful. The courses are run under the auspices of a Judge and are highly participative but involve close collaboration with law schools and others with special and specialist interest in this area (Buckley, 1994, Mahoney and Martin 1987).

Australia (Armitage, 1995, 1996) and now New Zealand (Cartwright et al, 1994) are following similar paths, responding to 'external' perceived biases in the courts which have been documented in the media and by interest groups on behalf of women, through academic research and professional associations. Again often through the active support of senior women judges (but also key male judges) the judiciary has taken on responsibility for documenting and tackling the perceived problems.

The position in the UK is somewhat different. There has developed since the 1970s a very substantial body of academic legal and social science based knowledge of the way in which bias works across the legal system and the role of the courts (eg Hoggett and Atkins, 1984, Tempkin, 1987, Lees 1996, 1997, Fredman, 1997). There have been analyses of discrimination within the profession by the Bar Council (Holland & Spencer, 1992) which led to a revised Code of Conduct on Equality (Bar Council, 1995) and the Law Society (1986). Pioneering women practitioners who have developed practice in this area (Kennedy, 1992) and a wide variety of women's organisations involved in combating perceived injustices and calling for reform[ 5]. However the judiciary has not responded in a similar manner in relation to gender issues. The focus for concern has been on responding to perceived biases in relation to race. This led to a systematic training programme for all members of the judiciary on race issues and the publication of a bench book on equal treatment. The latter covers issues relating to race, children, gender and disability (Judicial Studies Board, 2000a).

It is possible to speculate on why gender issues have not been tackled in the same manner. There is in the UK perhaps a wider division between the academic lawyers and the practitioners leading to a greater reluctance to understand and learn from each other. As mentioned earlier, the judiciary has been particularly anxious about the perceived interference with judicial independence and in particular extremely worried about media's reaction (see Malleson, 1999for a general discussion of judicial training in the England and Wales). Finally the UK does not have the equivalent of the Canadian Bill of Rights or the American constitution although it is now in the process of incorporating the European Convention on Human Rights through the Human Rights Act. The Judicial Studies Board has arranged training for every member of the judiciary on the Act prior to its implementation (Judicial Studies Board, 2000b, ch9). The development of a human rights culture may be of significance in this area.

4. The Educational Challenge

As will be obvious by now, educating judges about gender bias is a very sensitive issue.

'The mere suggestion of bias is perceived as a failure on the part of the judges to remain impartial whilst adjudicating' (Buckley, 1994, 8).

Furthermore, judges can personalise the issue. They will deny any personal prejudice in themselves or their colleagues. This reaction confuses individual prejudice with institutionalised or systemic discrimination.

Equality is an evolutionary concept. What is commonly understood as adverse discrimination changes over time. It is affected by changing social, cultural and political values (Fraser, 1995). Consideration of values particularly gender relations is intensely personal and can be deeply unnerving because it inevitably raises thoughts of one's own relations with others. Judges can easily consider that they are vulnerable to special interest groups who will undermine their independence.

All of these matters present considerable challenges to any educator but in addition it is necessary to consider more broadly the question of judges as learners. From an educationalist's point of view they are difficult. They have very high levels of pre-existing professional competence before participating in any educational event. They have security of tenure and most have limited promotional opportunities. They therefore do not possess the motivation of many other adult education groups. In addition they are used to working autonomously and in an entirely self-directed manner. They are highly individualistic. Their expertise involves intense short-term problem resolution for which they rely on practical non abstract knowledge (Armitage, 1995). Within the common law system, they are used to adversarial presentations of material – information which is 'corrected' by the other side (Wikler, 1987) and they receive this information filtered through legal discourse and are sceptical about social science material.

Finally given the strongly held view that judges should learn from other judges, what potential do judges possess as educators? Once again their professional characteristics are not necessarily conducive to the easy reception of training skills. While they are used to listening, they expect to be listened to without challenge. Because they are required to 'make judgements' which settle disputes, they find the educational objective of facilitating self development difficult.

Our programme confronted these complex challenges. It also faced the additional dimension of cultural sensitivity. The programme involves collaboration across two jurisdictions in which there are significant cultural differences. It also had to deal with the colonial legacy. How do we meet these challenges? Firstly by recognising them and not expecting too much. Secondly, by structuring the programme to minimise the difficulties.

We make it absolutely clear that the gender issue is being addressed because 'the knowledge gained will promote the fair administration of justice' not because they are 'now in the media spotlight' or because the 'voices of special interest groups must be given their due' (Buckley, 1994, 8). As Buckley says:

'It is of vital importance to appreciate that those seeking equal justice are not trying to impose a feminist agenda in the name of a traditional interest group. All they seek to do is to provide facts and new sensibilities which will assist judges in doing precisely what they do – administer justice – but to do with precise knowledge and understanding' (1994, 9).

5. Evaluation and Performance Monitoring

However the first question to be tackled is how to undertake evaluation. As Armitage (1995) points out in his discussion of judicial training in Australia, there are at least four foci for evaluation: reaction, learning, behaviour and results. The last two offer the best indicators because they consider whether conditions have changed and whether such change is an improvement or a deterioration of performance when set against objectives.

He rightly highlights that there tends to be:

'an expedient reliance on inferential measurements of the quality of the education process rather than its outcomes with the result that qualitative assessments are frequently used to provide quantitative measurements'.

In addition the reluctance of judges to accept any process of assessment of themselves other than that which occurs in a system of appeals to higher courts has made evaluation extremely difficult (see Malleson, 1999, ch 6). Often therefore evaluation of all types of judicial training is minimal[ 6].

Some attempts have been made in the US to measure the impact of the task forces and the gender training. This has involved questionnaires to lawyers and court staff generally to assess whether they consider that courtroom practice has improved. Judges have been interviewed to elicit changes in approaches. Judgements have been monitored for evidence of changed attitudes. Financial awards have been assessed to ascertain whether they are now more gender neutral (Wikler and Schafran, 1988, Mahoney and Martin, 1987, Wikler, 1993).

6. The Indian Context

If we now turn to India we see a somewhat similar pattern of development relating to gender issues to that in the other common law jurisdictions. India signed the Convention on the Elimination of all forms of Discrimination Against Women just prior to the Beijing fourth World Conference on Women in 1995. India's constitution enshrines equality for women in Articles 15 and 16. Over the last fifteen or so years there has been an increasing focus on the role of the legal system in combating discrimination against women. The Supreme Court has in number of its judgements attempted to put these concepts into practice (Kapur and Cossman, 1996, ch 3). In particular it has handed down a series of judgements that set out a wide range of guidelines on how offences against women should be tackled to ensure justice for the victim.

Nonetheless a number of rape trials in which defendants were acquitted have reached the headlines, leading to considerable controversy over the role of the judiciary in cases of violence against women (Mathur, 1999, Mukhopandhyay, 1999). Conviction rates for such offences are very low. Activist women's organisations point to bias in the laws and have campaigned hard for changes in relation to rape and dowry deaths[ 7] (Gandhi and Shah, 1986, Sarkar et al 1994, Mehra, 1998). In addition there are now a significant number of women practicing in the courts who are documenting their first hand experiences of discrimination ( Sakshi, 1996).

The government has responded. New provisions relating to dowry deaths have been introduced to reflect the growing concern over the difficulties of convicting perpetrators[ 8]. Family and Mahila (women) courts have been established in a number of jurisdictions in an attempt to make proceedings more accessible. Nonetheless women's organisations and legal activists who worked with women are expressing views such as that set out at the beginning of this article (Sakshi, 1996).

7. Outline of the Indo-British Gender and Law Project

In August 1995, the Department of Women and Child Development of the Government of India convened a seminar to discuss whether the legal system dealt fairly with women. The chief guest was the Chief Justice of India. Those attending the seminar acknowledged that there was anxiety about the way in which the legal system dealt with gender issues.

The project was a product of this seminar in Delhi and was designed to increase awareness of gender issues and to combat any possible gender bias within the legal system[ 9]. Its principal objectives were to facilitate discussion of gender issues by using both national and international research and experience; to develop suitable training materials which would be used initially to train a core of key judicial staff and be modified thereafter for incorporation into the common curriculum for judicial officers being developed by the National Judicial Academy; to develop training skills of key judicial staff to facilitate the institutionalisation of the issues within the judicial system; to promote best practice through access to national and international experience and example and to encourage the development of organisational change; and to promote collaboration between the relevant institutions in the United Kingdom and India.

8. Structure of the Project

8.1Selection and Composition of Participants

The target group is district and sessions judges, the most senior trial level judges undertaking murder and rape trials, family disputes and substantial property matters. The selection process involved the National Judicial Academy inviting specific High Courts to choose two participants to attend in any particular year. The aim was to enable the two judges to work together and to provide support for each other on return. Small states could only send one. Over the four year period of the project all 18 High Courts have sent participants. The total number has been 43.

Participants for the project have generally been in the more senior ranks. A number have been registrars or deputy registrars of their High Court. Out of the 43, six (five men and one women) have been subsequently elevated to their respective High Courts.

We were keen to encourage the High Courts to consider the gender composition of the group while stressing the need to identify potential participants with an interest in both gender and training issues if at all possible. Twelve of the participants have been women (28%). The proportion of women chosen is relatively similar to the proportion of women within this level of the judiciary. However the women participants tended to be less senior than the men again reflecting the general picture.

8.2 Project Activities: The Indian Briefing

The project has three key elements, the first of which is a three day briefing held in India. This is organised under the auspices of the National Judicial Academy. The aim of this event is introduce the judges to the context of gender equality in India with a clear emphasis on the implications for judicial practice. They hear from women's organisations that are working in the area of gender and law. In addition the judges are introduced to more general gender issues by skilled gender trainers who have devised and implemented gender training for the Indian Administrative Service. Senior judges, from the Supreme Court and various High Courts have also contributed to these sessions.

This briefing brings together the judges who will take part in the particular year's programme for the first time. For many of the judges it will be their first professional activity outside their own state and it provides the first opportunity for them to share their professional practice and experience with colleagues from other and, often very different, states.

After the first year of the programme the briefing has provided an opportunity for the participants in the previous year to meet the next group. This interaction fulfills two important functions. The first is building confidence in the programme as a whole. Previous participants are able to reassure the newcomers that while they might find the experience challenging, they will find that the programme is conducted professionally and with no threat to their integrity or independence. The second is the opportunity to share information, materials and experience. These have accumulated over the years and provide increasing depth to the programme.

The participants tend to display a degree of anxiety about the nature of the project at this stage. This is partly due to their unfamiliarity with the subject matter, with each other and with the surroundings. They tend to be somewhat defensive, keen to show their impartiality and lack of bias. The most challenging sessions are always those involving women's organisations. There is often a mutual lack of understanding of each other's position. Campaigners bring sophisticated knowledge of the defects in the system, the insensitivity and bias of individual judges and are rightly impatient for change. They can ascribe too much responsibility for these defects to the group of 'captive' judges.

The participants are astonishingly willing to listen to the issues but can retreat into their professional culture if they feel that they are being harangued. Nonetheless we see these sessions as vitally important to the project as a whole. Even if judges perceive the complaints as unjustified, at least at this stage in the training, it is essential that they understand that this is the way in which the legal system and their role in it is viewed. We have therefore worked hard to find ways to minimise the negative impact of the sessions. A key resource has proven to be participants from previous years. Each year two judges from the previous year, one male and one female, act as facilitators for the briefing. They provide a bridge between the different perceptions.

At the end of the briefing, the participants return to their states to prepare for their departure for the UK which takes place about two months later. They are asked to reflect on their experiences at the briefing and to collect material needed to undertake their assignments in the UK.

8.3 The UK Study Programme

The second element is the UK study programme which is a six week intensive programme conducted at Warwick Law School. The programme involves a number of elements designed to develop different skills. Throughout the approach is collegiate and participatory. The emphasis of the training, as Malleson has pointed out (1999, 172), is on the process of judging not on influencing individual judgements.

The first of these is the presentation and discussion of international material on gender issues and material from a variety of jurisdictions including the UK. It is very important to stress that this exposure to international debates and approaches to gender issues is designed to provide examples of the way in which other common law legal systems have or have not responded to such matters. The particular social and economic context is made explicit. We try to establish the catalysts for change; the steps needed to bring about awareness of change and then to implement it. We analyse the time scales involved and the complexity. Participants are encouraged to see the ways in which various jurisdictions have made imaginative use of the CEDAW convention and in particular the ways in which it has been used by the judiciary to create a legal culture in which substantive rather than formal equality is implemented.

The second and key element is the acquisition of training skills by the participants to enable them to develop the skills necessary to train others. It is a 'training of trainers' programme. We have discussed above the educational challenges involved in training judges. Our programme must tackle this issue as well as go a step further and train judges to train others. This element of the programme is conducted by an experienced adult education trainer who specialises in gender training. Her academic expertise is in the area of gender and development. She has also worked in India and written on professional women in India (see Liddle, 1986).

The method adopted was participatory. The judges learned how to train others by themselves learning through these methods. Thus we used a wide range of techniques: questionnaires, quizzes, videos, debates, experiential exercises and short 'teacher led' introductions. The participants found these methods difficult at first because they come from academic contexts where teachers instruct and are not questioned. Knowledge is generally received passively. They pass from this education system into the court system which reinforces this approach as they become providers of unquestioned answers via their judgements. While they demonstrated highly developed listening skills when being provided information by perceived experts, they found listening to each other very difficult. Yet this is a key skill for any trainer particularly in this area of gender where the trainer is often trying to encourage a participant to identify their gender attitudes and then to modify them in a supportive environment. The participatory methods which emphasise self learning proved very successful for the majority eventually. A significant number of participants became very enthusiastic supporters of these methods; others remained more comfortable with the traditional approach.

The third element in the UK programme involves developing training materials. At present there are no specifically designed materials for use in gender and law training for judges in India. As mentioned above judicial training is in its infancy. Our aim was therefore to provide sets of materials which could be adopted by the National Judicial Academy or by state level training bodies. They could also be used by the trained judges for their own training activities. Each participant is given responsibility to devise and prepare a training session on a relevant but specific topic using participatory methods. The final activity undertaken in the UK is the conduct of this training session by each participant. Each session is evaluated by the group, the trainers and in most cases a representative of the National Judicial Academy. Each year's materials are then collated and produced as 'ready to use' training manual at the end of the six week session. Over the period of four years these materials became more sophisticated as each group had the benefit of more and more previous experience.

These activities were supplemented by contributions by relevant professionals involved with all aspects of the administration of justice system in the UK and by study visits to appropriate UK institutions and organisations. The participants also undertook a week placement with a relevant organisation or court. These placements proved very successful, allowing the judges to obtain first hand experience of aspects of the administration of justice in England.

8.4 The Follow-up Activities in India

Each judge before leaving the UK is asked to prepare a 'plan of action'. This involves a realistic assessment of what they might do to put their training into practice. The third element is a follow up seminar in India to assess the progress of all participants. This takes place about six months after the UK programme. The judges have an opportunity of sharing with each other and with the National Judicial Academy the extent to which they have been able to implement their training.

A further stage in the project is the conduct of regional seminars. These one day events are conducted by judges from the project using the materials they have developed in the UK for the event. They are able to test their materials and implement their training. Each event is attended by between 35-50 district and sessions judges from the local and neighbouring states.

8.5 Evaluation of the Project

How successful has the project been in meeting its objectives? This is not an easy question to answer. It raises the issues set out earlier in relation to methods of evaluation. At one level we can point to the 43 judges who are now in possession of basic training skills, the majority of whom can be used as a judicial training resource throughout India. Obviously within that number there are varying degrees of skill but we, as trainers, are confident that 35% demonstrate good skills as well as commitment to the aims of the project. Within this number there are some very committed and talented individuals. Another 45% can conduct more than satisfactory training sessions with commitment to the aims of the project. Within the remaining 25% half could be adequate particularly if partnered by another more skilled judge. The rest either lack sufficient sensitivity to the aims of the project or find the task of training too challenging. Over 20 participants have taken part as trainer/facilitators at the regional seminars. The evaluations from participants at these were very encouraging with all the facilitators assessed as more than adequate and many assessed as good or excellent.

One another level we can point to three volumes of training materials which have been tested at the regional seminars and judged to be useful or very useful by the overwhelming majority of participants (some 250 judges) at these events.

However how do we evaluate the impact of training on the day to day activities of the participants? Are we able to say that the training has started to tackle the focus for complaint, the judge in the courtroom, set out in our initial quote?

We are obliged to rely on the qualitative material provided by the judge participants themselves to provide an evaluation and to address the wider impact questions. Both the UK course director and our partners in the project in India would concur in these evaluations from our observations of the participants.

8.6 The Judge in the Courtroom

The aim is to provide an atmosphere and environment within the court that is as conducive as possible to obtaining substantive rather than formal justice. Substantive justice involves a consideration of the context of the case and an emphasis on achieving a just outcome. The Indian constitution promises that all citizens are equal before the law – formal equality. However social and economic forces make citizens unequal in practice. Thus while men and women are legally equal in court if seen as abstract legal persons, as social beings they are unequal. To achieve substantive justice these historical differences which are structural to any society and often discriminatory must be recognised by the judges. It is important to remember that there are no juries in India.

As we have discussed above the project learning method is 'client centred'. It is highly participative and self directive in order to encourage the judges to seek the practical ways in which they could implement their training in whatever their day to day court work involves. As a result of the training the participants identified the need to take a more proactive role in the proceedings to ensure fairness between the parties rather than simply respond to the material presented by the lawyers. They also were more aware of the impact of the use of discretion, in particular that it could be used to ensure such fairness wherever appropriate.

On this key aspect of attitudinal change, the participants' own evaluation provides strong evidence of success[ 10]. Some examples are set out in the introduction. To quote one judge the sentiment of which is appears in the majority of the self-evaluations:

'The value of the training can hardly be over emphasized. My perception of gender issues today is quite different from what it was before the training. It has undergone a sea change'.

The training is designed to encourage judges to see that their regular conduct might inadvertently contain gender injustice. They point to the fact that they can identify the inequalities being faced by women which they now recognise they ignored as 'mere routine behaviour' before.

'For example during camera proceedings it is not just a routine to get the court room free from the persons not concerned with the case rather now I jealously try to provide an atmosphere in the court where the victim can be more free and uninhibited to express herself'.

This new understanding translates into actions such as trying to compensate for procedural delays and 'adopting procedures and methods which enable women, children and infirm persons to come forward and give evidence to their satisfaction'. They take a fresh approach to the appreciation of evidence recognising that the way in which the evidence is given can have a crucial bearing on the weight given to it. They have come to appreciate that vulnerable witnesses such as victims in rape or domestic violence cases have particularly difficulties providing such evidence.

'The training was an eye opener to the fact that females in crowded courts can't depose freely'.

Now they are less concerned with 'minor omissions and contradictions' in these witnesses' evidence. They are much more vigilant in ensuring that cross examination of victims is 'restricted and to the point'. In their appreciation of the evidence they are more aware of the gender context and take care to avoid stereotyping.

The self-evaluations also provide evidence of other ways in which the judges have implemented changes at key stages of the court process. These examples relate to the criminal trial. While the right to bail is an important right for the accused, if granted inappropriately it can lead to the disappearance of the accused and also to intimidation of vital witnesses. When the alleged offence is committed within the joint family system, such as when a husband is accused of cruelty towards his wife, which in many cases has led to her death, the potential for intimidation is considerable. Some judges have now reconsidered their approach to this issue particularly when the husband is accused of dowry death (killing a wife because her family is perceived to have provided too little dowry). The example below illustrates the impact of a judge taking a firm line which has led to a wider change of practice. It also demonstrates that the judge recognises that what s/he has done can contribute to a wider change of attitude.

'In a case of acid burning of a woman, the accused moved for bail, I rejected it, the accused made an application to the High Court. The court stressed the point that the offence is bailable but seeing the gravity of the offence bail was rejected by the High Court. Now as a result the Chief Judicial Magistrate tries such cases in the District Headquarters and no leniency is shown in bail applications. The result is that acid burning cases have reduced'.

Judges reported that they have made greater efforts to provide an environment in the courtroom that is conducive to gender justice.

'The treatment of witnesses, litigants as well as my own staff has been different. I have been able to better understand latent prejudices as well as inhibitions, their wants and needs and expectations of me. There is a more congenial family atmosphere with my immediate subordinates'.

Indian culture does not encourage discussion of intimate sexual details particularly not by women. Most families would be greatly shamed if a female member is raped. Most women feel far too intimidated by this and the processes they will be obliged to go through to report a rape. The examination of female witnesses in an alleged rape is therefore a very sensitive issue. Judges report changed attitudes and procedures as a result of the training.

'I take up cases of female witnesses and litigants early in the morning' (to avoid long waits in overcrowded court areas where there is no means of avoiding relatives and friends of the accused).

Rape cases are held 'in camera' in India, that is, in the absence of the public. However, judges now recognise that:

'this is not just a routine to get the court room free from the persons not concerned with the case', rather it involves trying 'to provide an atmosphere in the court where the victim can be more free and uninhibited to express herself'. 'Before recording the evidence of female witnesses I take steps to familiarise them with the court atmosphere'.

'Fixing a time on a particular day for hearing a particular case is one step to providing a suitable atmosphere. It enables a hearing at a fixed time in a less crowded court relieving female victims in particular from the agony of waiting as well as the psychological pressure created by a crowded court. The experiment … shows encouraging effects on the quality and quantity of evidence recorded'.

Another judge reported that s/he is now:

'conscious of the fact that during the recording of the deposition of a victim of rape indecent and undignified questions should not be allowed to be asked. I allot certain period for recording evidence of women witnesses and give priority to women witnesses'.

When it comes to the appreciation of evidence, a number of the judges report that they now give less weight to technical points raised by the defence. One key area is the impact of delay in reporting an alleged rape. The defence will allege that any delay undermines the credibility of the victim witness. The judges now approach this with a keener understanding of the reasons why women do not report such matters immediately and do not necessarily see a delay even of a relatively substantial nature as undermining the credibility of the witness. They also suggest that they are able to understand and empathise with the witness and how difficult it is to give evidence in such cases.

'I realise that before the training I was stereotyping the witness expecting her to respond as I would. Now I appreciate evidence from the victim's position'.

9. Conclusions

In summary, training, if these self-evaluations are accurate, can make a significant impact on court practice. This impact can be achieved without the expenditure of large sums of money on infrastructure or on organizational change, simply by judges obtaining a greater appreciation of the issues at stake and a willingness to change. We consider that projects like ours can make a significant contribution to tackling gender injustice.

This is not to deny the need for substantial improvement in the legal infrastructure or for major institutional development within the administration of justice system in India. The impact of the investment in the training of this very small number of judges will not be felt unless the next stages in the project are implemented. These relate to the institutionalisation of the training throughout India. These issues are addressed in the project but cannot be covered in this article.

There is presently a view held by the UK development agency that training conducted in the UK is inappropriate and can be better undertaken in the country of origin. There are arguments in favour of this. Funds are spent in country, using local resources, not channelled into resource rich first world institutions. There is less privileging of first world knowledge. However we are strongly of the opinion that the project would have been much less successful if it had been held solely in India. We argue that the project demonstrates that participants taking part in such training can benefit substantially from exposure to different educational and judicial contexts. This is definitely not in order to 'learn how to do things' but to provide an opportunity for self reflection in a different and to some extent challenging environment. The participants have observed the way gender issues are dealt with in another common law jurisdiction. The UK was chosen because the UK Department for International Development funded the project in conjunction with the Indian government. It could equally have been undertaken in a variety of other common law jurisdictions. The participants learned that similar and familiar legal concepts are interpreted differently and have different consequences in a different jurisdiction. The reason is the social context.

The discussions between the participants, particularly between the men and the women were vitally important. They clearly felt able to discuss issues more freely away from their home contexts in the educational environment provided by a university.

We have found that generally, although not all, the women judges who attended this programme fall into the category of 'outsider' – someone who has attained their position by breaking into a new group but who does not desire to conform once they have arrived (Allen and Wall, 1987, Martin, 1990). Although few in number they were very important to encouraging a positive outcome from the training as a whole. On the whole they recognised the issues more swiftly than their male colleagues and were happier with the adoption of new methods of thinking and behaving.

They were willing to share their experiences. As others have found, male judges hearing for the first time the difficulties that their female colleagues have experienced in their professional lives were amazed and then concerned. However as educators we also have to ensure that the female participants did not bear the burden of constantly interpreting and challenging their colleagues who in many instances held more senior positions within the judicial hierarchy.

On another level the removal of participants from familiar surroundings and placing them together in unfamiliar ones has a significant impact on attitudes.

The male judges were obliged for the first time in their lives 'to fend for themselves', to take responsibility for packing and unpacking their bags, for ensuring that they had a clean shirt and food to eat. All the judges had to learn how to function professionally without much assistance. They learned that very senior judges in England walk around the streets of London in order to go to lunch, that they carry their bags and sometimes word process their notes and judgements[ 11]. These differences stimulated considerable discussion on social and professional attitudes.

The interaction between law and society therefore became transparent in a wide variety of ways. These vital educational insights, which are the basis not only for understanding gender and law issues but wider issues relating to equality and social justice, would not have been learned if the training had taken place solely in India. It was learned through experience as well as in the classroom.

We referred earlier to the widespread concern expressed primarily by the judiciary that training and performance monitoring could interfere with their independence. This 'trump card' has never been used in relation to our project over the last five years even when the judge participants have been very uncomfortable when they glimpse a view of themselves from the outside. Our project would suggest that training can bring about significant changes in attitude and behaviour so as to tackle the problem of perceived gender injustice. Such programmes are not attacks on judicial independence. They do not interfere with decisions but concentrate on the ways in which judges reach their decisions, most crucially their underlying assumptions. If any legal system is to retain public support and legitimacy then demonstrating that it can deliver gender justice is essential.

Endnotes

1. This role relates to the theory, if not the practice at least in the UK, of the separation of powers. Although Malleson points out even the basic constitutional definition of judicial independence is in an 'unsettled state' (1997, 659).

2. The 'processes relating to the individual performance of judges since they are concerned with they way in which legal services are provided to the public' (Malleson, 1997, 660).

3. The Judicial Studies Board which is responsible for judicial training in England and Wales represents possibly the strongest supporter of judge led training. Lord Bingham, the then Lord Chief Justice, in his first Judicial Studies Board lecture 'It is, however, as I would suggest, essential, if judicial education is to promote the end of judicial independence, that control of the content and the form of such education should rest squarely in the hands of the judges themselves …. ' Judicial Studies Board Report, 1995-1997.

4. For instance there were 20 women barristers in 1919. By 1955 there were 64 (3.2%). By 1976 there were 313 (8.1%), in 1997 2,272 (24%).

5. For example, Women Against Rape, Rights of Women, Southall Black Sisters, Women in Prison, Women against Violence Against Women.

6. Armytage ( 1996) while discussing the processes of evaluation of judicial programmes generally makes this point. The approach in the USA relies on 'participant reaction combined with some notional cost/efficiency assessment. No attempt is made to measure either learning or impact on performance (1996, 205). The British approach undertaken by the Judicial Studies Board 'places considerable importance on avoiding any formalized assessment of judicial competence or performance (1996, 206). The New South Wales approach relies on the scoring of participants reactions which is correlated with the appraisal of the courts' education committees for purposes of future planning. 'This evaluation effort does not extend to making any direct assessment of the impact of education on judicial performance, at the present time' (1996, 207).

7. Dowry refers to money and other assets which are given by the parents of the bride during marriage. Although the giving and taking of dowry is prohibited and illegal under the law the practice is still prevelant. The a number of cases in India were the bride has been killed because the dowry was not sufficient.

8. The Indian Penal Code was amended to provide a specific offence of dowry death (Section 304-B) ' Where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be deemed 'dowry death' and such husband or relative shall be deemed to have caused her death.'

9. Professor Menon of the National Law School of India and the author attended the meeting. We were asked to draw up a training programme to meet the issues identified at the seminar.

10. The extracts in each section hereafter are from different judges. They are a selection from each of the four years. All 43 evaluations were positive.

11. Judges in India are provided with much more administrative and personal support than British judges. Security is tighter. The physical conditions under which they work can be daunting. Judges are expected to maintain a considerable social distance from other sections of society. Rank and hierarchy are seen as very important.

Bibliography

Allen, David and Wall, Diane (1987), 'The Behavior of Women State Supreme Court Justices: Are They Tokens or Outsiders?' in The Justice System Journal, vol 12, no 2 pp 232-245.

Armitage, Livingston (1995), 'Judicial Education on Equality' in Modern Law Review, vol 58, no 2, pp160-186.

Armitage, Livingston (1996), Educating Judges: Towards a New Model of Continuing JudicialLearning, The Hague, Kluwer Law International.

Bar Council (1995), Equality Code for the Bar, London, Bar Council.

Bhagwati, P N (1989), 'Pressures and Obstacles to an Independent Judiciary' Law and Justice Review, vol 102-3, pp 44-54.

Buckley, N J (1994), 'Gender Education for Judges in North America and the United Kingdom', paper at the Gender Awareness Seminar, Kooralbyn, Australia, 14-17 April 1994.

Cartwright, Justice Silvia et al (1994), Report and Recommendations of the Subcommittee on Gender Issues to the Courts Consultative Committee, Government of New Zealand.

Czpanskiy, Karen (1990), 'Gender Bias in the Courts: Social Change Strategies', in the Georgetown Journal of Legal Ethics, vol 4, no1, pp1-22.

Fraser, Justice Catherine (1995), 'Judicial Awareness Training' paper at the Australian Legal Convention, September 25th 1995.

Fredman, Sandra (1997), Women and the Law, Oxford, Clarendon Press.

Gandhi, Nandita, and Shah, Nandita (1986), The Issues at Stake, New Delhi, Kali for Women.

Hatchard, John and Slinn, Peter (1999), Parliamentary Supremacy and Judicial Independence: ACommonwealth Approach, London, Cavendish Press.

Holland, Lesley and Spencer, Lynne (1992), Without Prejudice? Sex Equality at the Bar and in the Judiciary, London, Bar Council.

Hoggett, Brenda and Atkins, Susan (1984), Women and the Law, Oxford, Basil Blackwell.

Judicial Studies Board (2000a), Equal Treatment Bench Book, London, Judicial Studies Board (Available via JSB website: <http://www.cix.co.uk/~jsb/index.htm>.

Judicial Studies Board (2000b), Annual Report 1999-2000, London, Judicial Studies Board.

Kapur, Ratna and Cossman, Brenda (1996), Subversive Sights: FeministEngagements with Law in India, London, Sage.

Kennedy, Helena (1992), Eve was Framed, London, Chatto and Windus.

Law Society (1986), Justice for All, London, the Law Society.

Lees, Sue (1996), Carnal Knowledge: Rape on Trial, London, Penguin Books.

Lees, Sue (1997), Ruling Passions: Sexual Violence, Reputation and the Law, Buckingham, Open University Press.

Liddle, Joanna (1986), Daughters of Independence: Gender, Caste and Class in India, London, Zed Books.

Mahoney, Kathleen and Martin, Sheilah, L (eds) (1987), Equality and Gender Neutrality, Toronto, Carswell.

Malleson, Kate (1997), 'Judicial Training and Performance Appraisal: The Problem of Judicial Independence' in Modern Law Review, vol 60, no 5, pp 655-667.

Malleson, Kate (1999), The New Judiciary: The effects of Expansion and Activism, Aldershot, Ashgate/Dartmouth.

Martin, Elaine (1990), 'Men and Women on the Bench: Vive la Difference?' in Judicature, vol 73, no 4, pp 204-208.

Martin, S and Mahoney, Kathleen (1987), Equality and Judicial Neutrality, Toronto, Carswell.

Mathur, Kanchan, (1999), 'From Private to Public' The Emergence of Violence Against Women as an Issue in the Women's Development Programme, Rajasthan' in Naila Kabeer and Ramya Subrahmanian (eds), Institutions, Relations and Outcomes, New Delhi, Kali for Women.

Mehra, Madhu (1998), 'Exploring the Boundaries of Law, Gender and Social Reform' in Feminist Legal Studies, vol vi, no 1, pp 59-83.

Mukhopandhyay, Maitrayee, (1999), 'Brother, There are Only Two Jatis – Men and Women' Section 125 Criminal Procedure Code and the Trial of Wifehood' in Naila Kabeer and Ramya Subrahmanian (eds), Institutions, Relations and Outcomes, New Delhi, Kali for Women.

National Alliance of Women (eds) (2000), Alternative NGO report on CEDAW: Initial Submission to the CEDAW Committee, India, U-9 11 floor Green Park Extension New Delhi 110016.

Ninth Circuit Task Force (1994), 'The Effects of the Gender in the Federal Courts: The Final Report of the Ninth Circuit Gender Bias Task Force' in South California Law Review, vol 67, no 4, pp 727 – 1126.

Resnick, Judith (1993), 'Revising the Canon' in 61 Cincinnati Law Review,1197 Appendix 1.

Sakshi, (1996) Gender and the Judges: A Judicial Perspective, New Delhi, Sakshi.

Sarkar, Lotika, Ramanathan, U and Mehra, Madhu (1994), Gender Bias and the Law, New Delhi, Karmika.

Schafran, Lynn Hecht (1985), 'Educating the Judiciary About Gender Bias: The National Judicial Education Program to Promote Equality for Women and Men in the Courts and the New Jersey Supreme Court Task Force on Women in the Courts' in Women's Rights Law Reporter, vol 9, no 2, pp109-124.

Schafran, Lynn Hecht (1987), 'The Success of the American Program' in Mahoney and Martin (eds) Equality and Judicial Neutrality, Toronto, Carswell, pp 412-420.

Special Joint Committee (1990), 'Report of the Special Joint Committee on Gender Bias in the Courts' in University of Baltimore Law Review, vol 20, no 1, pp 1-276.

Tempkin, Jennifer (1987), Rape and the Legal Process,London: Sweet and Maxwell.

Wikler, Norma, Juliet and Schafran, Lynn Hecht (1988), 'Learning from the New Jersey Task Force on Women in the Courts: Evaluation, Recommendations and Implications for other States', Washington, D.C, Women Judges' Fund for Justice.

Wikler, Norma (1987), 'Identifying and Correcting Judicial Gender Bias' in Equality and Judicial Neutrality, eds Mahoney and Martin, Toronto, Carswell, pp 12-40.

Wikler, Norma (1993), 'Exclusion of Women from Justice: Emerging Strategies for Reform' in Human Rights in the Twenty First Century, eds K.E. Mahoney & P. Mahoney, The Hague, Kluwer, pp 95-108.

Wilson, Bertha (1990), 'Do Women Judges Really Make a Difference' in Osgoode Hall Law Journal, vol 28, no 3, pp 507-522.