Recently, the Supreme Court while deciding a review petition over death penalty awarded to a convict for the kidnap and murder of a seven-year-old boy, advised courts to refrain from making patriarchal remarks in judgments. In its order dismissing the appeal, the top court said: “The choice of kidnapping the particular child for ransom was well planned and consciously motivated. The parents of the deceased had four children—three daughters and one son. Kidnapping the only male child was to induce maximum fear in the mind of his parents. Purposefully killing the sole male child has grave repercussions for the parents of the deceased. Agony for parents for the loss of their only male child, who would have carried further the family lineage, and is expected to see them through their old age, is unfathomable. Extreme misery caused to the aggrieved party, certainly adds to the aggravating circumstances.”
A bench, comprising Chief Justice of India DY Chandrachud, Justice Hima Kohli and Justice PS Narasimha, noted that the sex of the child cannot be in itself considered as an aggravating circumstance by a constitutional court. The murder of a young child is unquestionably a grievous crime and the young age of such a victim as well as the trauma that it causes for the entire family is in itself, undoubtedly, an aggravating circumstance. In such a circumstance, it does not and should not matter for a constitutional court whether the young child was a male child or a female child. The murder remains equally tragic. “Courts should not indulge in furthering the notion that only a male child furthers family lineage or is able to assist the parents in old age. Such remarks involuntarily further patriarchal value judgments that courts should avoid regardless of the context,” the order said.
Earlier, in a 2021 judgment in Aparna Bhat and others vs State of Madhya Pradesh and others, the Supreme Court had directed:
(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;
(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;
(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;
(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the CrPC. In other words, discussion about the dress, behaviour, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;
(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;
(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix during the proceedings, or anything said during the arguments, and;
(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.
Further, the Court directed that courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order to the effect that:
(i) Women are physically weak and need protection;
(ii) Women are incapable of or cannot take decisions on their own;
(iii) Men are the “head” of the household and should take all the decisions relating to family;
(iv) Women should be submissive and obedient according to our culture;
(v) “Good” women are sexually chaste;
(vi) Motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;
(vii) Women should be the ones in charge of their children, their upbringing and care;
(viii) Being alone at night or wearing certain clothes makes women responsible for being attacked;
(ix) A woman consuming alcohol, smoking, etc., may justify unwelcome advances by men or “has asked for it”;
(x) Women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;
(xi) Testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and
(xii) Lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.
The Division Bench of Justices AM Khanwilkar and S Ravindra Bhat had observed that the role of all courts is to make sure that the survivor can rely on their impartiality and neutrality at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the court. The current attitude regarding crimes against women typically is that “grave” offences like rape are not tolerable and offenders must be punished. This, however, only takes into consideration rape and other serious forms of gender-based physical violence. The challenges Indian women face are formidable—they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily male-centric, most often legal enforcement structures that either cannot cope with, or are unwilling to take strict and timely measures. Therefore, reinforcement of this stereotype, in court utterances or orders, through considerations which are extraneous to the case, would impact fairness.
According to the Supreme Court, the academic writings highlight that a judgment at all levels has a number of distinct audiences, each of which engages with it in a different way. The parties to the case and their counsel will be interested in how the judge resolves their specific dispute—what the law gives to or requires of them. At the same time, in a legal system where judgments of courts set precedents, and in particular within a common law system, judgments have significance beyond their authoritative resolution of a specific dispute—particularly in the Supreme Court. Thus, the judge is not only communicating to the parties their rights and liabilities in the context of the specific dispute being litigated; the judge is also addressing the broader legal community—other lawyers, judges, legal academics, law students—and indeed the public at large.
The Supreme Court held that judges can play a significant role in ridding the justice system of harmful stereotypes. They have an important responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice. Stereotyping might compromise the impartiality of a judge’s decision and affect his or her views about witness credibility or the culpability of the accused person.
“As far as the training and sensitization of judges and lawyers, including public prosecutors goes, this court hereby mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training,” the order reads.
In January, this year, a notice was issued by the Delhi High Court to the centre and Law Commission of India on a plea that seeks uniform marriage age for men and women. A Division Bench, comprising Chief Justice DN Patel and C Hari Shankar, issued the notice. The plea, which was filed by BJP leader and advocate Ashwini Upadhyay, called the distinction in marriage age unscientific and contended that it promotes patriarchal stereotypes.
—By Shivam Sharma and India Legal Bureau