SC manual can dispel dogma around gender

The new handbook emphasizes the need for an equal and inclusive legal system that guarantees dignity, autonomy, and equal protection for all individuals

Law and feminism have an intricate but complex relationship. Law can be an effective tool to realise the feminist goals of equality and dignity, but the process and application of law can lexicalise terms and phrases perpetuating discrimination and prejudice against women. Last week, the Chief Justice of India (CJI) Dhananjaya Y Chandrachud launched a handbook aimed precisely at battling this insidious aspect of the law. Listing out a raft of words, sentences and inferences that construct a gender-unjust and biased legal order, the handbook will guide judges in identifying, understanding and combating stereotypes about women.

Supreme Court of India (Representative Photo)

The document rejects the use of terms such as slut, whore, harlot, seductress and fallen woman – words that clearly use an antiquated patriarchal lens. Calling a woman a woman, nothing more, nothing less, is what the handbook suggests, advocating an equitable and non-partisan approach towards women.

Similarly, dogmatic notions about how a woman should dress up or how a survivor is expected to react after a sexual assault, as well as the stereotypes based on the so-called inherent characteristics of women, should be given up because they can prevent us from understanding the reality of a situation and cloud decision-making.

For transgender people, live-in or interfaith couples, such stereotypes accentuate stigma and structural discrimination, especially by law-enforcement agencies that are the first point of contact in the justice delivery system.

The language used by courts marks the boundaries of lexicon and references for law-enforcement agencies, subsequently influencing their course of action. This makes it even more significant for courts, particularly the district courts, to be extremely conscientious of stereotypes and their damaging effect on the process of decision-making and eventually, on the lives of people. Even when the use of stereotypes may not alter the outcome of a case, it degrades the purpose of law and constitutional ethos that guarantees equality, dignity and impartiality to individuals of all genders.

For example, in the Shafin Jahan-Hadiya case of 2017, the Kerala high court decided to exercise the parens patriae jurisdiction (acting as a parent) of a 24-year-old woman, calling her “weak” and her marriage being the “most important decision in her life”. The Supreme Court (SC) had to step in a year later to remind the high court that a 24-year-old is a major, capable of her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The apex court further held that the parens patriae jurisdiction cannot transgress into a major’s choice of her partner.

Between 2013 and 2022, the top court had to pass at least three judgments to reiterate its categorical ban on the two-finger test, highlighting not only its irrelevance to the determination of rape but also its violation of the dignity of rape survivors.

A few judgments of the apex court from the past also indicate certain aberrations. In a 2010 verdict, the apex court used a controversial phrase and said that to “keep” adding a “one night stand” with a man would not entitle a woman to maintenance. Such instances reinforce the need to have a guidebook to help break harmful patterns of thinking in legal orders.

A brainchild of the CJI, the handbook is a laudable endeavour by the SC in dispelling notions and reliance by the stakeholders of the justice delivery system on stereotypes and universalist assumptions about women, ingrained over a long period due to societal, cultural, and environmental conditioning.

The manual seeks to raise red flags about stereotypes that may impact the impartiality and the intellectual rigour of judicial decisions, causing enormous harm to the legal order and the lives of the people involved. At the same time, it tends to ensure their avoidance, and empower judges with reasoning and language to get rid of misconceived beliefs, which is inevitable for an equal and inclusive system. It must now serve as a constant and handy reminder of the constitutional mandate that promises dignity, autonomy and equal protection of law to all individuals. Words are only the vehicle which carry these values.

The views expressed are personal