Courts must dispel gender stereotypes

BySidharth Luthra and Ketaki Goswami
Apr 17, 2021 06:45 AM IST

Despite the Vishaka guidelines, the fact that the judicial and legislative system has a blind spot in matters of gender and is slow to change is apparent

Gender sensitisation was neither a part of our school curriculum nor a part of our training when we joined the legal profession three decades ago, Though the Constitution has special provisions for women (Article 15), and, fundamental duties require citizens to renounce practices derogatory to the dignity of women, what is now recognised and addressed as misconduct or gender harassment and discrimination was an existential hazard faced by women on an everyday basis.

Representational image. (Getty Images/iStockphoto)
Representational image. (Getty Images/iStockphoto)

Provisions existed in the Indian Penal Code (IPC) to curb extreme forms of harassment such as outraging modesty (Section 354) and offensive words and gestures (Section 509). Yet, the first step towards redressal of grievances of women regarding harassment in the workplace was as late as in 1997, when in Vishaka vs. State of Rajasthan, the Supreme Court (SC) issued guidelines to address the issue.

Despite the Vishaka guidelines, the fact that the judicial and legislative system has a blind spot in matters of gender and is slow to change is apparent. It was only in 2013 that that legislation was finally introduced on the issue — through the Sexual Harassment of Women at the Work Place Act, 2013. It was, also, only in 2013, spurred by a public interest litigation (PIL), that SC created regulations for a gender sensitisation committee.

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Gender equality, in the context of violence, came up in the December 2012 gang rape case (2017), when Justice Bhanumathi, in her concurring judgment, reminded us of the need for gender sensitisation at the school level as a mechanism to prevent sexual crime. She reiterated that honesty, pride and self-esteem are crucial to the personal freedom of a woman. The focus in the case, however, was on crimes against women with a clarion call for sensitisation of the public in matters of gender justice.

Yet, in a recent case, SC, acting on a PIL by Aparna Bhat and other well-meaning citizens, has had to come down heavily on an errant decision from the Madhya Pradesh High Court (HC). As a condition for bail, the MP court asked the accused, a 26-year-old man facing charges of molesting a woman, to get a “rakhi” tied by her on the day of Raksha Bandhan. Quashing these absurd bail conditions, SC gave directions about the nature of bail conditions that can be imposed. Once again, it reiterated the requirement for sensitivity in matters of gender, and directed courts to desist from expressing stereotyped opinions. It also asked the National Judicial Academy to impart training to young judges, prosecutors, standing counsel to sensitise them to gender.

While SC talks about freedom of choice and autonomy, yet the absence of sensitivity and presence of stereotyping is glaring. Casual observations and remarks promote gender biases, which, most unfortunately, have got rooted in our jurisprudence through judgments of constitutional courts. There have been enough recorded cases where not only the trial courts, but also HCs and SC have made observations about victims of rape and sexual offences — from holding that young women “conveniently fabricate the story of kidnap and rape” (State vs. Sushil Kumar, 2013) to saying that “(her) conduct during the alleged ordeal is also unlike the victim of forcible rape” (Raja vs. State of Karnataka, 2016), and to infamously propounding that “instances of women behavior are not unknown that a feeble no may mean a yes” (Mahmood Farooqui vs State (Govt. of NCT OF Delhi), 2007).

Judges take an oath to uphold the Constitution and laws. Our evidence law circumscribes facts which a court can take judicial notice of. Social prejudices and retrograde social practices should never enter the realm of adjudication before any court, especially a constitutional court, as it compromises the impartiality and integrity of the justice system. This can, and does, lead to miscarriage of justice, and more significantly, the re-victimisation of complainants. Women ought to be able to rely on a justice system which is free from myths, cultural constructs and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.

Equality under the law is not only fundamental to access to justice but requires judicial equanimity and impartiality. Eliminating judicial stereotyping is crucial for ensuring equality and justice for victims and survivors.

In 1985, the United Nations recognised the right to fair treatment of victims of crime. In India, based on the recommendations of the Malimath Committee, for the first time, the term victim was defined under the Code of Criminal Procedure. While there have been recent amendments that enable a victim to be treated fairly, the fact remains that for over 150 years, a victim was accorded the mere status of a witness at the fringes of the criminal justice system. Occasional corrective decisions of the court during this period display an individualistic approach. There is a need for a consistent judicial philosophy to correct the imbalances of the past, while ensuring that inborn prejudices and biases regarding gender are weeded out.

SC has given far-reaching directions to sensitise and change the mindset of judges while deciding cases, but will these directions alone suffice? What is additionally required is a scrutiny and overhaul of the justice delivery system to ensure that courts engage in an adjudicatory process, regulated by laws; eschew biases and stereotyping; and not delve into areas which have no relevance to the decision. Addressing judicial stereotyping and strengthening the role of judiciary in dismantling stereotypes is critical in ensuring that every individual’s rights are protected, without discrimination.

Sidharth Luthra is a former additional solicitor general and senior advocate, Supreme Court

Ketaki Goswami is an advocate

The views expressed are personal

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