Courting a New Ally in the Quest for Equality: Closing the Implementation Gap between Law and Practice in India
India has a long history of passing laws and signing treaties and conventions focused on eliminating violence against women and ensuring women’s equal rights. Some of the world’s most progressive laws are embodied in India’s Constitution: women had the right to vote and were considered equal citizens since the beginning of Independence—a feat even the United States and Britain did not manage to accomplish. Nevertheless, gender inequality remains a daily reality in India, sometimes with deadly consequences.
In 2010, the World Economic Forum ranked India 114th out of 134 countries on global sex disparities. In their recently published book, An Uncertain Glory: India and its Contradictions, Jean Drèze and Amartya Sen find that as of 2013, 29 percent of women participate in labor, 34.6 percent are not exposed to any media (compared to 18.3 percent of males), and 47.4 percent of women aged 20 to 24 were married before they were 18. According to recent Council on Foreign Relations reports, sex selective abortions still occur, with up to about 600,000 female fetuses aborted in India ever year, despite a 1996 ban on such activities, which translates into 2.2 percent of the annual birth rate. As a result of this deeply ingrained cultural preference for sons and sex selective abortion, there are roughly 914 girls per 1,000 boys, according to the 2011 census, making it the most imbalanced gender ratio since India’s 1947 Independence. Laws are expected to create change, but in India it seems these laws are creating extremely low rates of change in gender inequalities for women.
This begs the questions: How effective is legislation on social change in India? What are the reasons for this existing implementation gap between law and practice in India? An examination of the Dowry Prohibition Act provides a useful lens through which we can explore these questions.
Dowry Deaths and the Dowry Prohibition Act of 1961
The Dowry Prohibition Act defines dowry as any property or valuables given or agreed to be given either directly or indirectly at the time of, before, or after the marriage, usually from the bride’s family to the groom’s family. This is generally limited only to “movable” property such as jewelry, gold or silver, cars, and other consumer items. Because women are seen to be an economic liability and a burden to her husband’s family, the giving and taking of dowry has become custom in India. Dowry works to balance this burden with money and consumer items that may be continually given even years after the initial marriage begins. Because it is custom to marry very young, young brides find themselves very vulnerable and garnering a low status in their husband’s family. Additionally, brides are rarely allowed to return to the natal homes because of the shame such an act would bring.
The Indian dowry system has evolved into a system of extortion, greed, and dissatisfied expectations on the part of the husband and his family. Often, a bride’s family will be unable to meet the dowry demands of the husband’s family, angering them, and the target of this dissatisfaction is usually the vulnerable bride who is virtually powerless and continually harassed for the dowry. In a horrific trend which has become known as “bride burning,” the husband and his dissatisfied family set fire to the bride or induce her to commit suicide herself because of her family’s inability to bring her dowry. Such murders are classified as “dowry deaths.”
The Dowry Prohibition Act, passed in 1961, has tried to address this problem of greed and bride burning. It is designed to “prohibit the evil practice of giving and taking of dowry.” However, because the original Act had little effect, the Act has been amended twice, most recently in 1986, and now requires police to investigate any case involving a suspicious death or suicide of a woman within seven years of her marriage, or any case where such death has caused one of her relatives to request an investigation. However, the passage of the Act has not eradicated the practice or its consequences. Because of the gruesome and pervasive tragedy of these deaths, “from a human rights perspective, dowry violence remains one of India’s most egregious violations.”
Assessing Gender Legislation in India: The Crucial Role of Courts
In tracing the role of legislation’s implementation in India, it is important to determine where laws come from and from where they derive their power in Indian society. As a former British colony, India is the site of several existing legal structures, a mixture of colonial influence and traditional systems. In 1986, John Griffiths introduced the concept of legal pluralism to explain such a state of affairs. Griffith uses this concept of legal pluralism to refer to a situation in which:
Not all law is state law nor administered by a single set of state legal institutions, and in which law is therefore neither systematic nor uniform…In this sense a legal system is ‘pluralistic’ when the sovereign commands different bodies of law for different groups in the population…Within such a pluralistic legal system, parallel legal regimes…result from ‘recognition’ by the state of the supposedly pre-existing ‘customary law’ of the groups concerned.
Sally Merry builds upon Griffiths’ work to provide a looser definition of legal pluralism as a “situation in which two or more legal systems coexist in the same social field.” She further argues that under this system, laws and their power come from a range of sources and their associated institutions. Thus, India operates under this pluralistic legal system because it incorporates several different legal systems within its own society, such as religious personal codes of law (customary law), common law, and civil law. Because of this pluralism, legal scholar Avani Sood argues there are two primary avenues through which laws derive and gain their power to move towards gender equality in India. 
One route is the legislative avenue, consisting of policy programs and the actual content of the law usually put forth by the Indian Parliament, which takes into account the varying legal systems within India. The second is the judiciary avenue, through which power is given or taken away from laws, based on judicial decisions in favor or against a law and their enforcement; hence, the role of courts is central. Thus, while written legislation plays an important role, the other and perhaps more important side of legal change is judicial analysis and the Courts’ decisions.
Because Parliamentary action has not stemmed the tide of dowry violence, then perhaps India’s judicial system is up to the challenge. Savitri Goonesekere explores the courts’ role in the Indian legal system, finding that the Indian Constitution and substantive laws set the normative framework, and procedural laws enacted by the legislative or Court authorities facilitate enforcement. Goonesekere builds upon Sood’s foundational determination of the role of courts in India by highlighting the specific mechanisms through which enforcement can occur in gender justice: “Judicial review and gender sensitive interpretations from the superior courts can enable the Constitution to be used as an effective tool in responding to violence against women.” 
Courts are more than just a source of enforcement of laws; the Indian citizenry also believes and looks to the courts as an enforcement mechanism responsive to their needs. Large numbers of citizens are disillusioned with the legislative process. Over the years, Indians have come to trust their political leaders less and less. In a nationwide survey conducted in 1996, only 17 percent of respondents said they had a great deal of trust in political parties, with 20 percent saying the same about elected representatives. This is contrasted to the high trust figures of 42 percent for the judiciary. Two-fifths of respondents said they had no trust in elected representatives or political parties. By 2004, this gap was about the same although both levels had gone up significantly, as noted by the State of Democracy in South Asia survey, an initiative which set out to evaluate the impact of democracy in five South Asian countries. For the data gathered on India in this 2004 survey, faith in parties was at 48 percent, bureaucracy (including the executive) was at 56 percent, and at 72 percent for the Courts.
Representing the largest study of political behavior, opinion, and attitudes of the Indian citizenry to date, the National Election Study of 2009 found that nearly 65 percent of voters saw elected representatives as caring very little about ordinary citizens’ problems and concerns, compared to 40 percent for the judiciary. This is largely due to concerns with corruption: in 2004, nearly a quarter of elected Parliament members were under investigation or actually facing criminal charges and of those facing charges, nearly 50 percent were accused of crimes punishable by five or more years in prison. In 2009, this number increased to about 30 percent (153 members) facing criminal charges.
This trust in the Indian judicial system encourages Indians to use the judiciary system as a mechanism to create social change, particularly for minorities. In a 2003 study, Jayanth Krishnan found, that “in terms of litigation, in particular, we see that nearly a third of women’s groups and about a quarter of civil liberties/civil rights groups use this tactic.” Thus, the importance courts hold in India is two-fold: they provide an important enforcement mechanism for laws, and additionally, people believe courts respond to their social advocacy more than other avenues. Thus, people use them to secure equality.
Public Interest Litigation
One reason the Supreme Court is able to lend itself so well to these roles is India’s Public Interest Litigation (PIL) system, a system in which an individual or organization concerned with ongoing human rights violations can bring an action directly to the Supreme Court against the national and state governments of India. As Carl Baar notes, in the decades since the 1970s, Indian judges have become outspoken supporters of the “political, social, and economic rights of oppressed peoples and that the vehicle for this new form of judicial activism is through public interest litigation.” One of the most crucial pieces of PIL is its new remedies and monitoring components. Since its inception, PIL has resulted in a wide variety of remedial court orders and the establishment of a monitoring agency by which social activists or judicial officers check on compliance with these recommendations. PIL has been used to help a wide variety of peoples from construction workers, bonded laborers, rickshaw pullers, and other oppressed peoples. PIL has helped Indians secure the right to a speedy trial, the right to legal aid, the right to livelihood, the right against pollution, the right to be protected from industrial hazards, and the right to human dignity. 
PIL is an invaluable instrument in the gender justice fight as well. In an extensive study that includes analyses of Indian constitutional law, case studies of landmark Supreme Court decisions, interviews with PIL lawyers, human rights activists, and current Supreme Court Justices, legal scholar Avani Sood convincingly finds that PIL is critical for the advancement of women’s rights because women have not been politically mobilized enough to really make a difference in other realms; thus, PIL offers women a way to take their fights to the national arena. The key feature of PIL is that the litigants themselves do not need to have suffered legal injury in order to maintain an action for judicial redress in the Indian courts, a crucial point because many women are poor, cannot read, or may speak a different language than Hindi or English, and so cannot bring cases on their own behalf.
Two landmark court cases in particular, Vishaka v. State of Rajasthan and Javed v. State of Haryana reveal that the Court has asked the legislature to enact reform laws and directed the executive to introduce new measures or more strictly enforce existing policies in the past, establishing even further the role the judiciary branch plays in Indian politics. Justices have enacted guidelines “to fill the vacuum in existing legislation.” The judiciary itself has even explicitly stated that “an exercise of this kind by the court is now a well settled practice which has taken firm root in our constitutional jurisprudence and is essential to fill the void in the absence of suitable legislation to cover the field,” referring to PIL and showing its proliferation in usage over the years.  On top of this, the judiciary plays an active role in monitoring the implementation of the aforementioned PIL directives, by issuing interim orders with elaborate directions, holding numerous follow-up hearings, and issuing new directives as needed. This also includes the regulatory measures through which the court often issues detailed directives in PIL actions, and shows the crucial nature of such recommendations in gender justice within the court system.
Because the Supreme Court often issues directives that fill the gaps left behind in legislation, usually from ineffective coalition governments, the public perceives the Court to be the only branch of government truly fulfilling its obligation. Legislators themselves in the December 2007 meeting of Parliament recognized that people are compelled to seek justice through PIL in the judicial system due to the shortcomings of the other branches of government.
Formal Equality Versus Substantive Equality
These Supreme Court recommendations and directives fill the gap between formal equality (equality declared on paper; written laws) and substantive equality (actualized equality; initiatives that focus on equal outcomes and results instead of the process), because they add substantive content and guidelines to formal equality measures already adopted in Indian legislation. Acknowledging that formal recognition of equal rights through written law is not enough, the Supreme Court has been willing to focus on substantive equality through its issuance of guidelines and directives, and thus could be a great ally in securing equality for Indian women.
It is clear the Indian Supreme Court has been willing to deviate from formal equality towards the more outcome oriented route in the past, but one question remains: Why? What factors in these Indian Supreme Court cases cause such deviation from the formal equality approach towards a more substantive approach in the form of implementation recommendations and directives?
Textual analysis of 118 sampled Supreme Court cases brought by women and on behalf of women for differing violations against the Dowry Prohibition Act of 1961, finds that in the presence of references to international treaties and issues incorporating such treaties into domestic law, and in the presence of references to corruption, the Supreme Court offers more numerous implementation recommendations. In the presence of references to corruption, both at the State/Executive and local police level, and references to judicial bias exercised by the lower courts, the Supreme Court offers stronger and more specific implementation recommendations. In the presence of State and Executive level corruption, the Supreme Court offers the strongest implementation recommendations for the enforcement of the Dowry Prohibition Act, followed by bias exercised by the lower courts.
Implications for Legal Strategies
The correlation between these factors and their linkage to stronger and more numerous implementation recommendations suggests that these findings could be used as possible litigation strategies for moving gender justice in India from formal to substantive. When international precedent is set, the Indian judiciary attempts to follow, and when the Court believes the State and National executive branches are disrespecting the Courts’ authority by lying about their efforts to implement the Act’s provisions, stronger and more implementation directives are laid out in the court decisions. This suggests that emphasizing the corruption of the police force (or at the State and Executive levels), highlighting international obligations, and framing local governments’ lack of implementation as a sign of disrespect of the Court’s authority, can be beneficial strategies towards securing binding implementation recommendations from the Indian Supreme Court.
Dowry Prohibition Act and Lack of Social Change: Deterrents and Incentives
Textual analysis of these Dowry Prohibition Act cases also reveals a clear lack of incentives and deterrents to encourage law compliance, effectively stopping implementation efforts in their tracks. Although the punitive measures in the Dowry Prohibition Act itself are supposed to represent powerful deterrents, the judiciary at all levels have taken away the power of such punitive measures through their lack of standard usage of those punitive measures. In 2002, the Court acknowledged the issue of lack of deterrents that the Court’s behavior provides:
The legislature has by amending the Penal Code and Evidence Act [under the Second Amendment to the Dowry Prohibition Act] made Penal Law more strident for dealing with and punishing offences against married women. Such strident laws would have a deterrent effect on the offenders only if they are so stridently implemented by the law courts to achieve the legislative intent. 
Furthermore, 58 of the sampled cases ended with appeal acquittal (mostly due to insufficient evidence and the need to rely on circumstantial evidence) or reduced sentences from those originally imposed, sometimes down to the time the accused already served, despite a guilty verdict. While this is not a comment on the innocence or guilt of those accused, this acquittal and reduced sentencing rate of 49 percent sends a clear message that one has a nearly one in two chance in getting an acquittal of all crimes and moving on with one’s life, having committed an egregious crime. Additionally, it is clear that the threat of a criminal record is not a deterrent from political or any other aspirations, particularly for men, because of the record high numbers of Parliamentarians that are facing criminal charges or are convicted criminals.
The severe backlog of cases in the Indian Supreme Court also indicates a lack of crime deterrent because there is a high likelihood that one will not go to Court for a vast number of years, despite the filing of a petition. Over the entirety of the time span of this research, 76 out of 108 cases were decided within two years of the petition filings. For the 42 cases taking longer than two years, the average wait time was 5.2 years to work through the system, with some cases waiting up to nine years for a verdict. Within this time, the accused were on bail, and primary witnesses even had died. This presents an issue because evidence within these cases is already hard to obtain, and the death of primary witnesses renders the prosecution’s case even weaker, especially when past verdicts are in question. The Court also takes note of this issue:
What is a little disturbing about this case is that it is illustrative of the slow movement of the wheels of criminal justice delivery. The dowry death took place on 6th September, 1989. The Trial Court pronounced its decision on 3rd December, 1991 within two years of Janki Devi’s death. The first appeal was decided by the High Court on 5th July, 2004 which is more than 12 years later. A petition for special leave to appeal was filed in this Court in 2004 and leave was granted only after a gap of four years in 2008. Thereafter this appeal was listed for hearing as if it is an appeal of 2008 rather than a petition of 2004 thereby wiping away four years of its age in this Court. And even then, it has taken another five years for its disposal, making a total of nine years spent in this Court. It is high time those of us who are judges of this Court and decision makers also become policy makers.
Additionally, the Dowry Prohibition Act punishes both the demanding and giving of dowry; thus, the family of a bride can’t accuse the groom’s family without incriminating and implicating themselves. Further incentives are lacking in the fact that no witness protection program exists for witnesses who may choose to testify in these dowry cases. As a result, they turn hostile part way through the trial because they are intimidated:
Sadly, her parents turned hostile in the court. This raises the serious question of witness protection which is not addressed as yet. If they were threatened by the Appellant and were forced to depose in his favour it is a sad reflection on our system which leaves witnesses unprotected. The reasons why witnesses so frequently turn hostile need to be ascertained. There is no witness protection plan in place. Unless the witnesses are protected the rise in unmerited acquittals cannot be checked. It is unfortunate that this important issue has not received necessary attention. 
A Third Equality Theory: Nonsubordination Theory
Also known as dominance theory, the nonsubordination theory shifts the attention to the imbalance of power between men and women. This theory focuses on whether a particular law furthers the subordination of women to men. Catharine MacKinnon argues that both formal and substantive equality approaches maintain men as the reference point to which women are compared. Thus, women’s equality is limited to that which men have already gained, realize to be their own rights, or rights that men deem suitable for women, missing critical women’s issues that don’t completely apply to men. This equality framework focuses on stories of women themselves, and the needs deemed by women themselves, placing them at the very center of this theory.
Dowry issues overwhelmingly and disproportionately affect women, with 100 percent of the dowry death cases sampled in this study having women as the victims. Thus, because this problem is exclusively related to women, based on this nonsubordination theory, the dowry problem wouldn’t fit into either the formal or substantive equality approaches, which the Supreme Court has previously used to try to address the problem.
Therefore, this nonsubordination theory is important because it points to perhaps one of the biggest issues with the Dowry Prohibition Act and the cases that arise out of this Act—women are overwhelmingly not present to give their own stories and testimonies. Women are often too incapacitated to give their final statement before they die (known as “dying declarations”) in dowry death cases; thus, their voices are missing. Complicating matters even more, it is often a male relative filing a charge on behalf of a dead female relative, or in cases of Public Interest Litigation, a male arguing on behalf of a woman. Voices of women themselves are the missing factor in the Courtroom, and it is perhaps this type of equality that the judicial opinions and Justices lack and thus one of the reasons dowry continues to thrive in India.
Providing further evidence for this claim, in cases where the woman was actually in court, or her dying declaration was properly recorded, 47 percent of the time the Court was convinced to order further investigation into the case, or reached a guilty verdict of the accused dowry demander or attempted murderer. This suggests that there is merit to this nonsubordination theory, but more formalized and empirical research of the entire body of cases under the Dowry Prohibition Act is necessary to determine the overall association between these two factors. Such research may also suggest the emphasis needed on improving the dying declaration process as well as increasing the presence of women in the courtroom.
The Public Interest Litigation system does not exist only in India, nor is the role of the judiciary as enforcers and adherers to substantive equality limited to India. Countries such as Malawi, Canada, and South Africa contend with this type of litigation as well. Thus, such analysis can be used to determine new strategies for gender justice litigation in other countries including developing countries and post-colonial societies, where religious personal law and civil law coexist. Every country has its own cultural nuances but learning more about what produces stronger and more numerous implementation recommendations in the Court system, as well as why is crucial.
In conclusion, although this research is specific to India, it is particularly significant because this “legal implementation gap” phenomenon is not unique to India. All over the world, we witness countries who have substantial numbers of laws on paper guaranteeing formal equality to men and women and yet such equality is not fully recognized. Thus, the legal implementation gap between laws and reality is a global phenomenon that deserves more cross comparison study. More research is needed to move us closer to answering the larger question of the ability of social legislation to create the desired social change, in the realm of gender inequality. The results hold important implications for determining what explains the disconnect between written laws surrounding women’s rights and the implementation of such laws, as well as a deeper understanding of how to move towards more substantive equality for all.
 Beina Xu, “Governance in India: Women’s Rights,” Council on Foreign Relations, 2013.
 Dowry Prohibition Act, Section 2, 1961.
 Wanda Teays, “The Burning Bride: The Dowry Problem in India,” Journal of Feminist Studies in Religion, Volume 7, Number 2 (1991), 30.
 Ibid., 32.
 Dowry Prohibition Act, “Statements of Objects and Reasons,” 1(i) and 1(ii).
 Dowry Prohibition Amendment Act.
 Meghana Shah, “Rights Under Fire: The Inadequacy of International Human Rights Instruments in Combating Dowry Murder in India,” Connecticut Journal of International Law (2003), 210.
 John Griffiths, “What is Legal Pluralism?,” The Journal of Legal Pluralism and Unofficial Law (1986), 5.
 Sally Engle Merry, “Legal Pluralism,” Law and Society Review (1998). Also see Griffiths 1986.
 Here, customary law refers to the customs and rules of a society that people view to be a law, a realm of law mostly connected to religious rules and customs.
 Avani Mehta Sood, “Gender Justice through Public Interest Litigation: Case Studies from India,” Vanderbilt Journal of Transnational Law (2008).
 Savitri Goonesekere, Violence, Law & Women’s Rights in South Asia, (New Delhi: Sage Publications, 2004), 23.
 Goonesekere, Violence, Law & Women’s Rights in South Asia, 74.
 Ronojoy Sen, “India’s 2009 Elections: The Problem of Corruption,” Journal of Democracy (2009), 89.
 “2009 National Election Study Findings.” India National Election Study, Questions D2 and D9. http://www.lokniti.org/nes2009-finding_of_the_survey.pdf
 Sen, “India’s 2009 Elections: The Problem of Corruption,” 91.
 Jayanth K. Krishnan, “Social Policy Advocacy and the Role of the Courts in India,” American Asian Review, (2003), 106.
 Sood, “Gender Justice through Public Interest Litigation: Case Studies from India,” 836.
 Carl Baar, “Social Action Litigation in India: The Operation and Limitations of the World’s Most Active Judiciary,” Policy Studies Journal (1990), 141.
 Jamie Cassels, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?” The American Journal of Comparative Law (1989), 497.
 A case dealing with sexual harassment in the workplace.
 A case about coercive population policy in which a woman couldn’t run for local government if she had more than two children.
 Vineet Narain v. Union of India, 1996, S.C.
 K. Prema S. Rao and Anr. vs. Yadla Srinivasa Rao and Ors with the State of Andhra vs. Yadla Ranga Rao and Anr. (Decided on October 25, 2002).
 Satish Kumar Batra and Ors. vs. State of Haryana (Criminal Appeal No. 976 of 2001; Decided on April, 1, 2009).
 Bhola Ram vs. State of Pubjab (Criminal Appeal No. 1022 of 2008; Decided on November 11, 2013).
 Anjanappa vs. State of Karnataka (Criminal Appeal No. 1022 of 2008; Decided on November 11, 2013).
 “Katharine T. Bartlett, “Gender Law,” Duke Journal of Gender Law & Policy (1994), 6.
 Catharine A. MacKinnon, “Substantive Equality: A Perspective,” Minnesota Law Review, Volume 96 (2011).
Council of American Ambassadors Annenberg Fellow, 2014