On August 16, 2023, the Chief Justice of India D.Y. Chandrachud released the Supreme Court’s “Handbook on Combating Gender Stereotypes”, addressed to members of the legal fraternity including Judges, that acknowledges and seeks to address the harmful stereotypical language in legal proceedings. The Handbook is premised on the understanding that the perpetuation of such stereotypes by the judiciary is harmful, discriminatory and violative of constitutional morality.
The Handbook endeavours to combat gender stereotypes particularly the harmful stereotypes relied on by judges in their utterances in Court and their judgments, that lead to a “distortion of the objective and impartial application of the law, and perpetuate discrimination and exclusion”. The Handbook aims to “actively challenge and dispel harmful stereotypes”, by helping judges identify and avoid stereotypes through three means:
1. First, the identifying of language that promotes gender stereotypes. While doing so, it provides a list of stereotype promoting language and the preferred alternative language to be used. For instance phrases such as “chaste woman” “career woman” “woman of easy virtue” “woman of easy virtue”.
2. Second, it identifies common reasoning patterns that are based on gender stereotypes (particularly about women) and the incorrectness of the same. For instance, it looks at the judgment of the Kerala High Court in Hadiya’s case, which set aside the marriage of a Hindu woman to a Muslim man, on the ground that a woman of 24 years was weak and vulnerable, and the Supreme Court’s judgment setting aside the same, upholding the autonomy of the woman.
3. Third, it highlights binding decisions of the Supreme Court that have rejected stereotypes and can be utilised by judges to dispel gender stereotypes, for instance justices that reject the pre vaginum test (or “two finger test”) and the irrelevance of sexual history in cases of sexual violence.
The Handbook is an important beginning in addressing the sensitization of judges in matters of gender justice.
Observations by judges in open court, and ever so often their judgments, are replete with harmful gender stereotypes. Just this month, the Supreme Court took objection to remarks in a Calcutta High Court judgment advising adolescent girls to “control sexual urges”, as being an affront to the rights of dignity and privacy of adolescents, with the Court adding that judges are not expected to preach or express personal views. This observation reminds one of the judgment of the Division Bench of the Karnataka High Court about a decade ago which held that girls suffer from “hormonal imbalance” and hence easily fall prey to boys, love, marry and then repent at leisure. Another gem from the Karnataka High Court was a couple of years ago. In observations, which were subsequently expunged, the Karnataka High Court in an application for bail filed in a case of rape, observed that it was unbecoming of an Indian woman to have slept after she was "ravished”.
These are just a few of many such shocking and prejudicial observations that have been made by Courts, including the higher judiciary, over the years, resulting in the judiciary being complicit in propagating stereotypes, the casualty being the Constitutional promise of equality to women.
These confirm the need for the Supreme Court’s Handbook, which ought to be relied upon as a guide for judges in their everyday dispensation of justice. That the judges of the Calcutta High Court failed to restrain themselves from the brazenly their prejudices about young women, confirms that ridding the judiciary of stereotypes and prejudices is going to be a long road.
That said, the Handbook in itself represents a start. An aspect that was required to have been further highlighted is in understanding intersectionality and diversity among women, and the various other forms of oppression that women face. The Handbook notes the case of Bhanwari Devi, where the Trial Court acquitted the accused, on the ground that members of a dominant caste would not rape a woman from an oppressed caste. It notes that this is a stereotype, with the reality being that rape and sexual violence have long been used as a tool of social control and dominant caste men have historically used sexual violence as a tool to reinforce and maintain caste hierarchies. It is important to remember that while she herself has been denied justice, it was the struggle of Bhanwari Devi, which resulted in the coming of the Vishaka Guidelines against sexual harassment at the workplace and the subsequent law in that regard.
Along with this, it would have been appropriate to look into the manner in which class and caste vulnerabilities result in additional forms of oppression, which not only make Dalit and working class women more vulnerable to sexual violence, but also makes access to justice that much more difficult.
A clear case in point is the recent judgment in the gang rape of the Dalit woman from Hathras. The institutional failures from the failure to ensure the registration of an FIR to the hasty cremation of her body without the consent of her family resulted in the acquittal of the 4 accused in the case of gang rape, with only one of the accused being convicted for culpable homicide not amounting to murder, and offences under the Prevention of Atrocities against Schedule Caste and Schedule Tribe Act. The judgment acquitting the accused of gang rape in fact refused to rely on the statement of the victim and held that she could have been tutored to change her statement to allege gangrape by four persons. This is reminiscent of an observation made by the Justice Verma Committee Report in the context of trafficking, where it notes how “Administrative apathy, authoritarian excesses and judicial connivance has led to a most shocking state of affairs negating the very basis of the existence of human life and democratic safeguards enshrined in the Constitution of India”.
Few months after the handbook was released, in December, 2023, a woman judge in Banda district of Uttar Pradesh has written an open letter asked for permission from the Chief Justice of India to end her life, due to the sexual harassment faced by her by a district judge. She writes that the enquiry is “a farce and a sham” and that the petition she had filed before the Supreme Court seeking for the transfer of the district judge was dismissed. This highlights the manner in which cases of sexual violence and gender discrimination within the judiciary are handled, best exemplified by the manner in which the complaint filed against the then Chief Justice of India, Ranjan Gogoi was dealt with.
To ensure gender justice, it is imperative that the judiciary look at systemic inequities that plague it – right from dealing with cases of discrimination and violence, to the representation of women within - As of June 2023, only 107 of 788 sitting High Court Judges are women, and women from marginalized communities are even fewer.
In a judgment in 1984, then Gujarat High Court judge, Justice A.P. Ravani notes how judges “Psychologically [they] represent only the class interest to which they belonged”. This applies equally go all the privileges and prejudices that judges bear as part of, and reflecting, society. As such sensitization and the breaking of stereotypes may be seen as one steps towards dealing with discrimination. For the Courts to, in fact, become guardians of the legal and constitutional system, institutional and systemic changes are necessary. This includes addressing inherent inequities within the judiciary, implementing systemic changes, and ensuring reservations in the higher judiciary. Without such measures, efforts to combat discrimination would be likely to be more symbolic than effectual.
