Gender Sensitization

The criminal procedure. The Sanhita of 2023 carries forward provisions of the kind that require the statement of a woman against whom certain offences are alleged to be recorded by a woman police officer, and to be recorded at her residence or a place of her choice, and for a woman magistrate to record the statement where practicable; and the law restricts questions about a complainant's character in a prosecution for a sexual offence.

The composition of the committees themselves. In the Act of 2013 and in the Local Committee, and in the requirement in Vishaka that the complaints committee be headed by a woman with a third party presence.

The Protection of Human Rights Act 1993. Section 12(h) requires the Commission to spread human rights literacy among various sections of society and promote awareness of the safeguards available, through publications, the media, seminars and other means.

And the fundamental duty. Article 51A(e) requires every citizen to renounce practices derogatory to the dignity of women, which is the constitutional statement of the same idea.

What gender sensitization can achieve

Three things, and each can be stated concretely.

It changes what is reported. A woman who believes that her complaint will be received without hostility is more likely to make it. The design features of the Act of 2013, a woman Presiding Officer, an external member, a duty to assist a complainant who cannot write, exist for that reason.

It changes what is recorded. Statements recorded by a woman officer at a place of the complainant's choosing produce different records from statements recorded by a man at a police station.

It changes what is asked and what is admitted. Restrictions on questions about a complainant's previous sexual history and on the disclosure of her identity are gender sensitization written as rules of evidence and procedure.

What it cannot achieve

An LL.M. answer must include this, and it is the part that distinguishes a good answer.

It cannot substitute for a remedy. A sensitized officer who has no power to order relief helps a complainant less than an insensitive officer who must.

It cannot be measured. Attendance at a workshop is measurable; a change of attitude is not, so a duty to conduct programmes is easily discharged formally.

It cannot reach the private sphere directly. Most of what the Constitution set out to change is enforced in the family, and no training programme reaches there.

And it can be used as a substitute for structural change. Where a system is understaffed, delayed and inaccessible, sensitization is the cheapest reform available and may be offered in place of the expensive ones. That is the same objection the National Human Rights Commission made in 2000 about anti terrorism law, in [TADA in Practice, and the NHRC's Comments]: the real problems were investigation, prosecution and the number of courts, and a change of law was offered instead.

The honest assessment

Four propositions, and a candidate who states them has an argument rather than a description.

Gender sensitization is a procedural technique, not a right. No person has a claim to it and no court enforces it directly.

It works where it has been written into a rule. The woman officer recording a statement, the woman Presiding Officer, the external committee member, the restriction on questions about character. Each is enforceable and each has effect.

It fails where it is left as an exhortation. A duty to conduct awareness programmes with no standard and no consequence is discharged by holding one.

And it is a complement to remedies, never a replacement. The three chapters before this one are about rights, statutes and judgments; this chapter is about the people who operate them, and the operation matters only because the rights exist.

A worked example

A university proposes a gender sensitization policy: annual workshops for staff, a helpline, and a statement of values.

What is missing legally? An Internal Complaints Committee constituted under section 4 of the Act of 2013, with a woman Presiding Officer at a senior level, two employee members and one external member, which is a statutory obligation and not a policy choice.

Is the helpline useful? Yes, and it goes to reporting; but a complaint under the Act must be made within three months to the Committee, and a helpline that does not route complaints there wastes the limitation period.

Are the workshops enough? They discharge the employer's duty to organise awareness programmes and nothing more.

What would make the policy effective? Naming the Committee members publicly, prescribing who receives a complaint, providing assistance to a complainant who cannot put it in writing as section 9 requires, and stating what action follows a recommendation.

And what would an examiner want said? That the difference between a policy that works and one that does not is whether it is expressed as rules with addressees and consequences, which is the general lesson of this chapter.

What it does NOT mean

It is not a legal right. It is a technique, required in places by statute and by judicial direction.

It is not confined to sexual harassment. It reaches recruitment, promotion, service conditions, policing, and the conduct of trials.

It is not achieved by a training programme. It is achieved by procedural rules that survive the programme.

And it is not a substitute for enforcement. A sensitized system without remedies protects nobody.

Quick revision

• Three elements: awareness that neutral rules operate differently; attitude, since those who administer the law bring assumptions to it; and practice, which is the element that can be written into a rule and enforced.
• Where Indian law requires it: the Vishaka duty to prevent or deter; the composition and duties under the Act of 2013; the criminal procedure provisions on recording a woman's statement by a woman officer and at a place of her choice, and the restrictions on questions about character and on disclosing identity; s.12(h) of the Protection of Human Rights Act 1993; and art 51A(e).
• What it achieves: what is reported, what is recorded, and what is asked and admitted.
• What it cannot: substitute for a remedy, be measured, reach the private sphere, or excuse the absence of structural change.
• The assessment: a procedural technique and not a right; effective where written as a rule; ineffective as exhortation; and always a complement to remedies.

Test yourself

1. Define gender sensitization and give its three elements. The process of making those who make, apply and enforce the law aware of the different ways in which its operation affects women and men; its elements are awareness that facially neutral rules operate differently, attitude among those who administer the law, and practice, meaning the procedural changes that give the awareness effect.

2. Name four places where Indian law requires it. The duty in the Vishaka guidelines to prevent or deter sexual harassment; the composition of the Internal Complaints Committee and the employer's duty to conduct awareness programmes under the Act of 2013; the criminal procedure requirements that a woman's statement in certain cases be recorded by a woman officer at a place of her choice; and section 12(h) of the Protection of Human Rights Act 1993 requiring the Commission to spread human rights literacy.

3. Give three things it can achieve. It changes what is reported, because a complainant who expects a fair reception is more likely to complain; it changes what is recorded, because the identity and location of the recording officer affect the record; and it changes what is asked and admitted, through the restrictions on questions about character and on disclosure of identity.

4. Give the strongest criticism of it. That where a system is understaffed, delayed and inaccessible, sensitization is the cheapest available reform and may be offered in place of the structural changes that are actually needed, which is the same objection the National Human Rights Commission made about anti terrorism legislation.

5. What distinguishes an effective gender policy from an ineffective one? Whether it is expressed as rules with identified addressees and consequences, such as a properly constituted committee, a prescribed route for a complaint and an obligation to assist a complainant who cannot write, rather than as exhortation and training alone.