Writing the judgment for the bench, justice Bhat handed out a checklist for the judges on what must be avoided during judicial proceedings and could never become part of an order. (HT archive)
Writing the judgment for the bench, justice Bhat handed out a checklist for the judges on what must be avoided during judicial proceedings and could never become part of an order. (HT archive)

Patriarchal justice won't do: SC lays down the law

  • The court issued a slew of directives, along with a checklist for judges, to eliminate social bias from entering judicial reasoning.
By Utkarsh Anand, New Delhi
PUBLISHED ON MAR 19, 2021 02:04 AM IST

The Supreme Court on Thursday directed all courts in the country to desist from commenting upon the dressing, behaviour, past conduct, morals or chastity of women, or suggest any “compromise formula” while deciding cases of sexual offences, emphasising that “entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders’’ must be forbidden.

The court issued a slew of directives, along with a checklist for judges, to eliminate social bias from entering judicial reasoning. A bench of justices AM Khanwilkar and S Ravindra Bhat set aside a July 2020 order of the Madhya Pradesh high court asking a molestation case accused to get a rakhi tied on his wrist by the complainant as a condition for bail. The top court held that this order transformed a molester into a brother by judicial mandate and, thus, reflected adversely on the entire justice delivery system.

“This is wholly unacceptable and has the effect of diluting and eroding the offence of sexual harassment. The law does not permit or countenance such conduct, where the survivor can potentially be traumatised many times over or be led into some kind of non-voluntary acceptance or be compelled by the circumstances to accept and condone behaviour what is a serious offence,” it said.

Writing the judgment for the bench, justice Bhat handed out a checklist for the judges on what must be avoided during judicial proceedings and could never become part of an order, saying the use of reasoning or language which diminishes the offence and trivialises the survivor has to be avoided under all circumstances.

“Thus, the following conduct, actions or situations are hereby deemed irrelevant, e.g. to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or “Indian” women, or that she had called upon the situation by her behaviour, etc,” the bench said.

Bail conditions and orders, the court said, should avoid reflecting stereotypical or patriarchal notions about women and their place in society, besides ensuring no contact between the accused and the complainant as a condition for bail. “In other words, discussion about the dress, behaviour, or past ‘conduct’ or ‘morals’ of the prosecutrix (survivor), should not enter the verdict granting bail,” said the court, adding that judges should show extreme sensitivity in such cases and desist from expressing any stereotype. Justice Bhat listed out 12 examples of stereotypical opinions, including comments on how a “good” woman and a “good” mother should behave in society; being alone at night or wearing certain clothes makes women responsible for being attacked; a woman consuming alcohol, smoking, etc may justify unwelcome advances by men or “has asked for it”; or a suspicion around a sexually active woman in assessing consent in sexual offence cases.

The bench clarified that these instances were only illustrations of an attitude, which should never enter judicial orders or be considered relevant while making a judicial decision, and added that the idea was that the “greatest extent of sensitivity is to be displayed in the judicial approach, language and reasoning adopted by the judge”.

Underlining that judges had to play a vital role as teachers and thought leaders, the bench directed that courts should not suggest, entertain or encourage any steps towards a compromise between a complainant and the accused to get married, or any other form of settlement between them. Accepting the suggestion by attorney general KK Venugopal and by lawyer Aparna Bhat, who along with eight other women lawyers had challenged the Madhya Pradesh high court order, the apex court also ordered that a module on gender sensitisation be included as part of the foundational training of every judge. It asked the National Judicial Academy to devise, preferably within three months, necessary inputs which have to be made part of training of young judges, as well as form part of judges’ continuing education on gender sensitisation.

The bench asked the Bar Council of India to consult subject experts and circulate a paper for discussion with law faculties and colleges and universities in regard to courses that should be taught at the undergraduate level, in the LLB programme, in addition to including topics on sexual offences and gender sensitisation in the syllabus for the All-India Bar Examination.

In its 24-page judgment, the bench higlighted that violence against women in India was systematic and was usually underpinned by the persistence of patriarchal social norms and inter- and intra-gender hierarchies.

“Women are discriminated against and subordinated not only on the basis of sex, but on other grounds too, such as caste, class, ability, sexual orientation, tradition and other realities. Gender violence is most often unseen and is shrouded in a culture of silence...This silence needs to be broken. In doing so, men, perhaps more than women have a duty and role to play in averting and combating violence against women,” held the court.

It regretted that outlaw behaviours such as stalking, shades of verbal and physical assault, and harassment were categorised as minor offences. “Such ‘minor’ crimes are, regrettably not only trivialised or normalised, rather they are even romanticised and therefore, invigorated in popular lore such as cinema. These attitudes – which indulgently view the crime through prisms such as ‘boys will be boys’ and condone them – nevertheless have a lasting and pernicious effect on the survivors,” lamented the bench. The challenges Indian women face are formidable, noted the court. “They include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily male-centric.” Former additional solicitor general and senior counsel Indira Jaising told HT: “Judges of the high courts and the Supreme Court also need sensitisation. They must practice what they preach. In my opinion, a much deeper exercise of gender audit of all courts needs to be made by a committee of retired judges who have proved their commitment to gender justice.”

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