India’s Supreme Court recently took a step toward ensuring that court rulings are rid of patriarchal stereotypes and that judges deliver gender-just judgments. On August 16, Chief Justice D.Y. Chandrachud released a “Handbook on Combating Gender Stereotypes” compiled by the apex court.
The handbook is a 30-page document that details instances of misogynistic language used in Indian courts and how it hampers the impartial delivery of justice for women. It unequivocally states that there is no place for regressive ideas about women in court rulings and that judges must use alternate terminology.
Across the spectrum of courts in India, from the lower judiciary (i.e., district courts) to high courts and even the Supreme Court, judges are usually steeped in the patriarchal mindset that plagues Indian society at every level. This mindset reflects in their misogynist language and verdicts.
Court rulings in India are infamous for referring to a rape victim as a “woman of loose morals,” “a seductress,” or even a “slut.”
It impacts verdicts too. In 2017, for example, the Delhi High Court overturned the rape conviction of film director Mahmood Farooqui and acquitted him on the specious reasoning that the victim’s feeble refusal implied consent. Her “feeble no may mean a yes,” the court said. The court noted that the victim was known to the director. Giving “the benefit of the doubt” to Farooqui, Justice Ashutosh Kumar said in his judgment that “instances of woman behavior are not unknown that a feeble no may mean a yes.” He raised the question of the “consent” of the victim in situations where the two individuals are sexually active and “not conservative.”
The verdict left women rights activists and lawyers fuming as it set a dangerous precedent where the woman’s denial of consent could be deliberately misinterpreted to justify sexual assault.
Chief Justice Chandrachud, who took a personal interest in the drafting of the gender stereotypes handbook, said in the foreword that he hoped to address the “patriarchal undertones” in legal parlance.
Starting with an exhaustive glossary of terms that are regressive stereotypes for women, the handbook provides alternative words that judges should use in their rulings. For example, it classifies “dutiful wife” as “incorrect” and “wife” as the “preferred” word.
It draws attention to how gender stereotypes and traditional ways of “harmful thinking” “impact the impartiality and the intellectual rigor of judicial decisions” taken by judges. This results in judges ignoring or bypassing the requirements of the law, the handbook says, stressing that it is important that they impartially decide on cases based on the law rather than rely on “preconceived notions about men and women.”
The handbook delves at length into the traditional gender roles for women in society, such as notions that women are best suited to look after the elderly in the family or that a woman’s duty is to do housework and that women employed outside the home cannot bring up their children well. The document warns of the larger societal impact of these stereotypes on women as it entrenches patriarchal roles for women and compels them to conform to them. Women are expected to be custodians of chastity and family honor, which the apex court demolishes as “unconstitutional” and anachronistic.
The Supreme Court aims to foster an environment of “gender equality” and to work toward a gender-just environment. Therefore, it is significant that it started by addressing the misogyny inherent in judicial pronouncements and is hopeful that it would have a ripple effect on society at large.
The handbook specifically differentiates between “gender” and “sex;” while the former refers to socially constructed roles for girls, women, boys, and gender-diverse individuals, the latter is a biological attribute of an individual. So-called “inherent characteristics” of women are nothing but stereotypes, it says.
It tackles the intersection of caste and gender and points out that “dominant caste men” have historically used rape (on lower caste women) as a tool to reinforce and maintain caste hierarchies.
The handbook’s most important section is the one on gendered notions of sexual violence or rape. It takes on the familiar societal tropes of a woman/ victim being blamed for being raped, whether it be due to her clothing, her “promiscuous” behavior or her habits (smoking and drinking). The Supreme Court states that it is sexist to believe that a woman who is sexually active or has multiple partners is inviting rape. It cites the Farooqi judgment to stress that a “woman who says No means a No. There is no ambiguity.”
The handbook is an unprecedented initiative by the Supreme Court and deserves applause. But more needs to be done to bring about substantial changes in the justice delivery system for women.
Delays in lodging police complaints and the absence of physical evidence to corroborate a rape charge are instances highlighted by the handbook as “irrelevant considerations” posing obstacles in an individual’s quest for justice. It states that the testimony of a rape survivor or victim is sufficient to lodge a rape charge.
Substantial change can come only if institutional and judicial procedures change. At present, they are so heavily biased against women that many are reluctant to even lodge a complaint, and therefore it is no surprise that the conviction rate in India is abysmal.
While the handbook looks at how gender inequality impacts the justice delivery system, it fails to examine how the caste and religious identity of a victim impact the way the criminal justice system treats her. When the victim is a Dalit woman or a woman from a religious minority (like a Muslim, for instance) she faces challenges that are far more daunting than those faced by other women in getting justice.
Nonetheless, India’s Supreme Court at the behest of Chandrachud has attempted an exercise in self-introspection. With the handbook, the apex court has turned the lens inward and held up earlier misogynistic pronouncements and rulings of the court to scrutiny. Aimed at judges and the legal fraternity, the handbook has expressed hope that it will be a “catalyst for change.”
Whether this change will be in legal terminology alone or extend to more definitive changes in rendering gender justice, as in the case of the 2002 Gujarat riots gang rape victim Bilkis Bano, remains to be seen. Bilkis Bano’s 11 rapists were prematurely released recently on grounds of “good behavior.”
“Words influence society’s attitudes” and “inclusive terms will break traditional harmful thinking,” the Supreme Court states in the book.
Ultimately, along with the legal community, it would help if the handbook could also alter the patriarchal-misogynistic mindset of the Bharatiya Janata Party government.