Monday, October 2, 2023

Gender and the judiciary

Gender-based presumptions have no place within the justice system. The Delhi High Court has confirmed this once again in the light of the recent judgment passed by it wherein it has set aside a trial court order and remanded the case, involving attempt to murder and kidnapping allegations, back to the trial court

Want create site? Find Free WordPress Themes and plugins.

By Dr Swati Jindal Garg

The concerned trial court had in its order, discharged four women accused of offences registered under various IPC provisions, including 307 (attempt to murder), 341 (wrongful restraint), 365 (kidnapping) and 149 (unlawful assembly). The women were discharged on the grounds that no evidence was found that they instigated the accused males to commit violence since the latter were already armed with weapons. The trial court, however, framed charges against the five men in the case. The Delhi Police had moved the High Court in a revision plea against this order discharging the women. 

Pointing out the grave error in the way the trial court order was worded, a single judge bench of Justice Swarana Kanta Sharma in its order noted that the trial court order mentioned that “all lady accused persons” should furnish bail bonds under the CrPC instead of writing the names of all the accused persons discharged, which would have revealed their gender. The High Court observed that writing this in a judicial order “does not reflect well on the judicial philosophy of treating all genders equally”.

“In the absence of specific reasons for discharging the accused persons at the stage of framing of charge itself, in face of specific allegations against them that they had beaten them with fists and kicks, any such presumption made by the learned trial court holds no ground,” the High Court said, setting aside the trial court order and remanded the matter back to the trial court for passing an order on the charge afresh. The Court also said: “It is crucial to note that the learned trial court has on its own…assumed that when the ‘male members’ were already beating the complainant there was no occasion for the ‘lady members’ to instigate them and to join them in beating the victim. Such an assumption in favour of a female accused, lacking any substantive basis or valid grounds, goes against the core principles of our justice system…. Presumptions based on gender have no place within this framework, unless provided by law, as they undermine the pursuit of truth and justice. Each person’s involvement in a criminal act has to be assessed independently”. 

Justice Sharma, while clarifying her order, observed that the actual fault with the trial court order is that it has given no reason to explain what led it to believe that the “female members” could not have committed the offences despite there being specific allegations and roles attributed to them by the victim which was a part of the charge sheet.

This is not the first time that the courts have taken a pro-active role in combating the issue of gender-stereotyping. The Supreme court has in the recent months specially, been a forerunner in tackling the issue of gender-stereotyping. In its recently released handbook, the top court has also provided several details in tabular form showing a glossary of gender unjust terms and phrases and has suggested alternative words to be used in judicial discourses and decision making. In fact, in one of the illustrative lists, it has also detailed the stereotypes that are often applied to men and women in the context of sex and sexual violence and explained as to why such assumptions are wrong.

“Assumptions are often made about a woman’s character based on her expressive choices (e.g., the clothes she wears) and sexual history. These assumptions may also impact how her actions and statements are assessed in judicial proceedings. Assumptions based on a woman’s character or the clothes she wears diminish the importance of consent in sexual relationships as well as the agency and personhood of women,” it said.

The handbook also stressed upon the fact that there is a stereotype that women who dress in clothes that are not considered to be traditional want to engage in sexual relations with men and if a man touches such a woman without her consent, it is her fault. This clarification goes on to prove the mentality that the society has been suffering from since times immemorial—the one that says that a woman who dresses in a certain way and then gets molested “was asking for it!” The reality, on the other hand is “the clothing or attire of a woman neither indicates that she wishes to engage in sexual relations nor is it an invitation to touch her. Women are capable of verbally communicating with others and their choice of clothing represents a form of self-expression that is independent of questions of sexual relations. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by dressing in a particular way”.

Attacking the stereotype on the character of a woman who smokes, the handbook goes on to clarify that “women, like all other people, may consume alcohol or smoke cigarettes for a variety of reasons including for recreation. The consumption of alcohol or use of tobacco is not an indication of their desire for sexual relations with a man. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by drinking or smoking.”

The handbook takes a strong leap by clarifying that it is stereotype to assume that women, who are sexually assaulted or raped by men must cry incessantly and must display symptoms of being depressed or suicidal and if a woman’s behaviour does not conform to this mould, she is lying about having been raped. In fact, the reality is that “very often men sexually assault or rape a woman known to them in some capacity. The woman may be a colleague, employer, employee, neighbour, family member, friend, former or present partner, teacher, or acquaintance.” “For example, the death of a parent may cause one person to cry publicly whereas another person in a similar situation may not exhibit any emotion in public. Similarly, a woman’s reaction to being sexually assaulted or raped by a man may vary based on her individual characteristics. There is no “correct” or “appropriate” way in which a survivor or victim behaves.” 

These and many other illustrations enumerated in the handbook have been a result of the study of various judgments wherein the courts have justified the acquittal of an accused person on the grounds that the victim/aggrieved woman did not display the classic symptoms of having been wronged hence, it must go on to show that her person was not actually infringed upon.

Both the judicial and legislative systems have long since had a blind spot in matters of gender, but it seems that they are now trying to make up for lost time. The Indian community as a whole has not been apprised of gender equality and has been fed with the set stereotypical roles that have been assigned to male and female all their lives. Gender sensitisation was neither a part of our school curriculum nor a part of our training when most of us were growing up. Even though the Constitution has special provisions for women under Article 15 and fundamental duties require citizens to renounce practices that are derogatory to the dignity of women, what is only now recognised and addressed as misconduct or gender harassment and discrimination has been an existential hazard faced by women on an everyday basis. 

The first much needed step towards redressal of grievances of working women came as late as in 1997, when in Vishaka vs State of Rajasthan, the Supreme Court issued guidelines to address the issue of sexual harassment of women at workplace. Further, it was after a gap of 16 years, that a legislation was finally introduced on the issue—through the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH). It was, also, only in 2013, spurred by a public interest litigation (PIL), that the Supreme Court created regulations for a gender sensitisation committee.

Despite the efforts being taken by all the well-meaning organisations, we still face judgments that take us back by several decades. In a recent errant decision from the Madhya Pradesh High Court, as a condition for bail, the Court asked the accused, a 26-year-old man facing charges of molesting a woman, to get a rakhi tied by her on the day of Raksha Bandhan. Acting on a PIL, the Supreme Court, while quashing these absurd bail conditions, gave directions about the nature of bail conditions that can be imposed. Once again, it reiterated the requirement for sensitivity in matters of gender, and directed courts to desist from expressing stereotyped opinions. It also asked the National Judicial Academy to impart training to young judges, prosecutors, standing counsel to sensitise them to gender.

It needs to be remembered that every casual observation and every errant remark, promotes gender biases, which, most unfortunately, have got rooted in our jurisprudence through judgments of constitutional courts. There have been enough recorded cases where not only the trial courts, but also High Courts and the Supreme Court have made observations about victims of rape and sexual offences—from holding that young women “conveniently fabricate the story of kidnap and rape” to saying that “(her) conduct during the alleged ordeal is also unlike the victim of forcible rape, and to infamously propounding that “instances of women behaviour are not unknown that a feeble no may mean a yes”, there are innumerable such remarks that have proven to be the nail on the coffin of gender equality. 

The current judgments, however, prove that all is not lost, and there is still hope. Perhaps the time has come when everyone has realised that equality under the law is not only fundamental to access to justice, but requires judicial equanimity and impartiality, and eliminating judicial stereotyping is crucial for ensuring equality and justice for victims and survivors. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi  

Did you find apk for android? You can find new Free Android Games and apps.


Please enter your comment!
Please enter your name here

News Update