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Recently, in a case of sexual assault involving the Protection of Children from Sexual Offences Act, 2012, the Madhya Pradesh high court observed that unmarried girls do not indulge in carnal activities just for fun unless there is an assurance of marriage as India is a conservative society. Notably, the judgement ignores the welcome precedent set by the Supreme Court in Aparna Bhat v. State of Madhya Pradesh (Aparna Bhat). In the said case, the apex court had taken strong exception to a Madhya Pradesh high court order wherein ‘rakhi-tying’ by the victim was imposed as a bail condition on the complainant in a case of sexual harassment.
The Supreme Court has held that such gender stereotyping is an affront to the dignity of women and erodes her confidence in the judicial process. Judicial stereotyping refers to the stigmatising practice of ascribing specific attributes or characteristics to an individual based on membership to a particular social group. Courts continue to be shackled by a broader culture of discrimination that is exemplified by the ideal victim complex.
For instance, the Mapusa district and sessions court abominably resorted to victim blaming as it acquitted Tarun Tejpal in a sexual assault case. The court made an observation that the certain photos showed the victim to be cheerful when it was expected that she would be reserved or traumatised following the alleged sexual assault. It prompted a terse observation from the Goa bench of the Bombay high court that the Goa court effectively lay down a manual on how rape victims should behave.
Similarly, last year, the Karnataka high court while granting bail to an accused had pronounced that the complainant should not have fallen asleep after the alleged crime of rape as it was “unbecoming of an Indian woman”.
In Aparna Bhat, the apex court observed that women face multiple obstacles in accessing justice in the face of rampant gender-based violence. The insistence on informal negotiations by families and the involvement of self-styled community leaders in mediation further accentuates her trauma. The condonation of stalking and sexual harassment in popular culture including the medium of cinema offers another fillip to gender stereotyping, as influential film industries capture the imagination of the masses. It cultivates social mores where misogyny thrives and consequently, perpetrators are afforded impunity. The demand for greater accountability raised by women in the MeToo movement represented a much-needed pushback against the prevalent biases despite accusations that it was restricted to an urban elite circle.
As patriarchy is ingrained in the collective consciousness, judges too have often resorted to paternalism and diminished the agency of women even beyond cases of sexual assault. In the infamous Hadiya case, the Kerala high court had inexplicably annulled a marriage between two consenting adults in a habeas corpus petition filed by the woman’s father and provided fodder to the prevalent majoritarian tensions on inter-religious marriage prior to the Supreme Court’s intervention.
Judicial stereotyping as systemic discrimination
Perpetuating stereotypes based on gender constitutes discrimination under the Indian constitution. Anti-stereotyping is a judicial construct that was firmly entrenched by Anuj Garg v. Hotel Association of India as a part of the constitutional mandate on equality. In a significant judgement on the implementation of permanent commission for women in the Indian Army, J. Chandrachud has also recently introduced the concept of systemic discrimination where the emphasis is on discrimination as a continuum wherein exclusionary structures are scrutinised.
The Supreme Court’s most emphatic assertion of systemic discrimination came in Vishakha v. State of Rajasthan. Sexual harassment was first seen as a barrier to women’s participation in the workforce. It hinders access to employment opportunities for women and is violative of the promise of non-discrimination enshrined in the constitution. The genesis of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 can be traced to the guidelines framed in the Vishakha case. The recognition of workplace harassment reinvigorates the scope of equality in the constitution as it integrates ‘indirect discrimination’ in its fold. Indirect discrimination requires scrutiny of the consequential impact of policies or actions. The focus is on the effect of ostensibly neutral criteria rather than the intent.
The practice of judicial stereotyping constitutes systemic discrimination by courts as it disincentivises women from seeking legal redress for the fear of revictimisation. It is also likely to lead to underreporting of crimes against women. As rightly observed by the Supreme Court in the Aparna Bhat, the imposition of absurd bail conditions such as rendering of community service by the accused or judicial sanction to compromises between the perpetrator and the survivor on the pretext of marriage undermines the confidence of the victims in the judicial system. It creates insurmountable barriers for women to access justice and hold perpetrators of sexual assault accountable.
India has signed and ratified the Convention on Elimination of Discrimination Against Women (“CEDAW”). General Recommendation No. 33 on Women’s Access to Justice of the CEDAW Committee obliges state parties to ensure that legal procedures are impartial and fair such that women can enjoy effective access to justice. States are required to keep judicial process free from socio-cultural prejudices including stereotypical gender norms. General Comment No. 28 of the UN Human Rights Committee further elucidates that any consideration of a women’s sexual history to decide the extent of her legal rights in rape cases constitutes a violation of the right to privacy.
As observed by the court in the Aparna Bhat judgement, chastity of the complainant, resistance to sexual assault or the insistence on visible representation of physical injuries devalue the lived experiences of victims and entrenches discrimination further. Judicial stereotyping constitutes a violation of a woman’s right to privacy and dignity and is contrary to the Supreme Court judgement in KS Puttaswamy v. Union of India. Casting aspersions on the woman’s character or doubting her testimony by drawing attention on her sexual life should therefore be strictly avoided by courts. No judicial recognition should be afforded to compromises based on the perpetrator’s offer of marriage to the victim.
Gender stereotyping dilutes the seriousness of gender-based violence and effectively sends out a message to the wider public that perpetration of such acts is condoned by the criminal justice system. It undoes the limited progress on the legislative front in the past decades.
With the repeal of Section 155(4) of the Indian Evidence Act in 2003, the defence can no longer adduce evidence to suggest that a rape victim is generally of “immoral character” and question the veracity of her testimony. Likewise, courts must refrain from placing reliance on a woman’s past sexual history to decide the question of consent following the introduction of Section 53A by the Criminal Law (Amendment) Act, 2013.
The plethora of directions on gender sensitisation of judges and lawyers including public prosecutors issued by the Supreme Court in the Aparna Bhat judgement constitutes an incremental step in the right direction. The Bar Council of India has also been advised to consult subject experts for the introduction of a gender sensitisation module at the undergraduate-level law courses. However, the court should have gone further and also sought the introduction of gender sensitisation in the school curriculum as children are often socially conditioned to inculcate gender stereotypes at a tender age.
The spotlight on intersectionality
The Aparna Bhat judgement also introduces an intersectional lens to judicial stereotyping. As observed by Justice Ravindra Bhat, women are discriminated not only based on their gender but also on additional grounds such as caste, class, ability, sexual orientation, tradition amongst other factors. Discrimination by judicial stereotyping is thus multi-dimensional and cannot be boxed into a singular factor. However, the judgement does not offer further clarity on the subject.
The void on intersectionality jurisprudence in India has been recently filled by the Supreme Court in Patan Jamal Wali v. State of Andhra Pradesh (Patan Jamal Wali) wherein it was acknowledged the intersection of gender, caste and disability constituted multiple disadvantaged identities on the basis of which sexual violence was perpetuated against the victim. In another example, the chargesheet of the J&K police in the Kathua incident also reveals how the heinous rape and murder of the minor girl was utilised as a tool to drive out the nomadic Muslim community of Bakarwals from a tehsil in Jammu.
However, intersectionality is not a novel concept in India. The Justice Verma Committee Report had emphatically asserted that women may also be discriminated for belonging to a disempowered caste, tribe, community, religion or class in addition to her gender. Stereotyping by the judiciary may also be linked to the allied socio-cultural identities of a woman.
In Shafin Jahan v. Ashokan KM, Hadiya’s capacity to consent to marriage following her wilful conversion to Islam was scrutinised by the courts on the ostensible ground that she was vulnerable and capable of being exploited by her husband. The exercise of parens patriae jurisdiction by the Kerala high court was problematic and unnecessary. The judicial distrust in Hadiya’s free consent to convert despite her being an adult, in essence, vitiated her agency and constituted judicial stereotyping. The court even resorted to a ludicrous observation that as per Indian tradition, “The custody of an unmarried daughter is with the parents, until she is properly married.”
The presumption of lack of maturity only arose because of her conversion to a minority religion. An intersectional approach would delineate such stereotyping by the court as discrimination not merely with regard to her gender but also on the basis of her new religious minority. The judiciary must desist from propagating such gender stereotypes in a political climate where ‘love jihad laws’ have been weaponised as a divisive tool.
A division bench of the Gujarat high court has passed an interim order that the provisions of Gujarat Freedom of Religion (Amendment) Act, 2021 will not apply to inter-faith marriages which take place without force, allurement or fraudulent means to protect inter-faith couples from being unnecessarily harassed.
In the Bhanwari Devi gangrape case in Rajasthan, the Jaipur district and sessions court had acquitted the accused on the rationale that they were middle-aged and respectable citizens. Shockingly, the court had observed that the rape was unlikely to have taken place since the accused belonged to upper castes while Bhanwari Devi belonged to a lower caste community. Similarly, in the Mathura case, the alleged promiscuity of a tribal woman and absence of visible representations of injury attracted more judicial attention rather than the fundamental issue of her consent. It finally led to the acquittal of the accused.
As the judiciary treads new ground with its intersectionality analysis in Patan Jamal Wali, one can hope that the Supreme Court’s recent pronouncement against stereotyping will serve as a timely reminder to courts that judicial processes do not operate in vacuum but are shaped by prevalent biases in a hierarchical social order.
Judges must be wary of their own prejudices such that they do not have a dehumanising effect on women who seek to enforce their rights before courts. The judiciary must guard against perpetuating gender stereotypes as it distorts the fairness of a trial. Prescribing how victims of harassment or assault should ideally behave in a particular situation or questioning the maturity of adult women based on prejudices creates a deep distrust in judicial institutions.
Moreover, as demonstrated by a nuanced intersectional approach, gender stereotyping has a debilitating impact on women from disadvantaged minorities as it only accelerates further marginalisation.
In this regard, the gruesome Hathras incident can be identified as an upcoming litmus test. Whether and how courts tread on the path of course-correction can only be explored with the passage of time. The onus is now on the judiciary to dismantle the barriers created by gender stereotypes such that women can reaffirm their faith in the legal process.
Rongeet Poddar is a lawyer based in Kolkata and a graduate from West Bengal National University of Juridical Sciences.