By Dr Swati Jindal Garg

Recently, Chief Justice of India (CJI) DY Chandrachud announced that a legal glossary to guide judges against the use of inappropriate gendered terms in the legal discourse will be unveiled in the near future. The announcement was made by him while speaking at an event organised by the Supreme Court Gender Sensitisation and Internal Complaints Committee to celebrate International Women’s Day. The CJI also expressed a need to ensure zero tolerance for inappropriate behaviour and improper use of language against women. 

“For instance, I have come across judgments which have referred to a woman as a ‘concubine’ when she is in a relationship,” the CJI said, adding: “This glossary is nearing completion and will be unveiled in the very near future.” The CJI also said that this was a part of his mission that he had undertaken a few years ago and the project is nearing fruition now. The intent behind releasing the glossary is that it would comprise a list of words and terms that judges must refrain from using in verdicts as well as in court proceedings.

The trend of using words that are inappropriately gendered is not a new one. Gender stereotyping is the practice of ascribing to a woman, or for that matter a man, specific attributes, characteristics, or roles by reason only of his/her membership in the social group of women or men. Stereotyping not only adversely affects human rights and fundamental freedoms, but it is also an affront to all genders that thrive on individuality of humans. The international human rights law framework is also concerned with stereotypes and stereotyping, and the Committee on the Elimination of Discrimination against Women (CEDAW) has, in fact, explained that State parties are required to modify or transform “harmful gender stereotypes” and “eliminate wrongful gender stereotyping”.

A stereotype is harmful when it limits a man or a woman’s capacity to develop his/her personal abilities, pursue his/her professional career and make choices about his/her life. Both hostile/negative or seemingly benign stereotypes can be harmful for women. For example, it is based on a stereotype that women are more nurturing. As a result, child rearing responsibilities often fall exclusively on them. An overview of everyday language will prove that there are more gendered inappropriate terms used for women than for men. An example of this is the failure to criminalize marital rape, based on the stereotype of women as the sexual property of men. Another example is the failure of the justice system to hold a perpetrator of sexual violence accountable based on stereotypical views about women’s appropriate sexual behaviour.

Discrimination against women includes those differences of treatment that exist because of stereotypical expectations, attitudes and behaviours towards women. In fact, a range of UN human rights mechanisms has highlighted how stereotypes about women’s role can be incorporated in discriminatory legislation—for example preventing women from acquiring ownership of land since only the “head of the household” is authorised to sign official documentation. CEDAW has also time and again set out its intent to take all appropriate measures to “modify the social and cultural patterns of conduct of men and women in an effort to eliminate practices that are based on the idea of the inferiority or the superiority of either sex. 

There is also a growing consensus that gender stereotyping poses a significant, yet largely unaddressed challenge, to the recognition, exercise and implementation of women’s human rights. Whether overtly hostile (“women are irrational”) or seemingly benign (“women are nurturing”), harmful stereotypes perpetuate inequalities. For example, the traditional view of women as caregivers means that child care responsibilities often fall exclusively on women. Further, gender stereotypes compounded and intersecting with other stereotypes have a disproportionate negative impact on certain groups of women, such as women from minority or indigenous groups, women with disabilities, women from lower caste groups or with lower economic status, migrant women, etc. Wrongful gender stereotyping is a frequent cause of discrimination against women. It is a contributing factor in violation of a vast array of rights such as the right to health, adequate standard of living, education, marriage and family relations, work, freedom of expression, freedom of movement, political participation and representation, effective remedy, and freedom from gender-based violence.

Gendered stereotypes, apart from other things, also affect the ability to access justice which is a human right in itself and also a key to the realisation of all other human rights, including the rights to non-discrimination and equality. It has been seen that women often face specific barriers in their efforts to seek justice based on their sex/gender. These barriers include male guardianship laws, fear of stigma and reprisals and cultural perceptions of men (and not women) as rights-bearers. For women victims and survivors of gender-based violence, the barriers to justice are often even greater.

Former Additional Solicitor General of India and Senior Advocate Pinky Anand also explained the need to have a glossary of terms considered sexist, saying it was a necessary tool to educate some of the colleagues of what was appropriate and what wasn’t. “It is unfortunate that we need this glossary of ‘inappropriate’ terms, but the hard truth is that we do. It is a necessary step towards gender sensitisation in a profession that needs it. I may add that we also need to address and add to the glossary the stereotypical expressions of patriarchy and notions of gender stereotyping. I think it is time for society to appreciate that dignity, and specifically human dignity, is a catalyst towards exponential growth,” said Anand.

Judicial stereotyping is such an invisible yet common and pernicious barrier to justice, particularly for women victims and survivors of violence, that it often goes undetected. However, the usage of certain gendered stereotypes in the judgments penned by judges are the biggest giveaway to their thought process. Such stereotyping causes judges to reach a view about cases, based on their preconceived beliefs, rather than relevant facts and actual enquiry. This thought process can have potentially wide-ranging consequences. For instance, it may not only distort the judges’ perception of the facts and affect their vision of who is a “victim”, but may also influence their views about witness credibility. Ultimately, however, it compromises the impartiality and integrity of the justice system, which, in turn, can lead to miscarriage of justice and re-victimization of complainants.

Women victims and survivors “should be able to rely on a [justice] system free from myths and stereotypes and on a judiciary whose impartiality is not compromised by these biased assumptions”. Eliminating judicial stereotyping is, therefore, a crucial step in ensuring not only equality and justice for women, but also ensuring that gendered stereotypical words are not used while penning down judgments which are read, followed and saved for posterity.

UN High Commissioner for Human Rights Navi Pillay also agrees that eradicating stereotyping from our judicial systems must be a priority. According to him, “States should…take measures to eliminate wrongful gender stereotyping in all aspects of the criminal justice system…. Explicit action is required to ensure that government officials, especially those working in the justice system, do not deliver decisions based on harmful stereotypes and undermine the human rights of women and girls. Rather, officials should be identifying and challenging such negative beliefs, to help create environments that more fully respect the human rights of women and girls and build a culture of equality.”

The way forward in addressing this issue is improving judicial capacity. Education and training are the keys to building capacity to address judicial stereotyping and ensuring decision-making is not adversely affected by harmful stereotypes and the usage of gendered stereotype terms while writing judgments. For instance, the UN Special Rapporteur on the independence of judges and lawyers has recognised that “development of training and continuing legal education programmes… is the cornerstone for developing the capacity of the judiciary to challenge gender stereotypes within and outside the criminal judicial system…” 

This education and training may, however, come in many forms, including seminars and written resources. Whatever the form, the purpose is that they should assist judges to achieve best practice in decisions on gender-based violence. At a minimum, this will require information to help judges reach decisions based on law and fact, and not on stereotypes, identify stereotyping and operative stereotypes, especially in the reasoning of lower courts, or in the arguments advanced by counsel, understand the harms caused by stereotypes and stereotyping, including how they undermine the ability of victims/survivors to access justice, and finally to debunk stereotypes related to gender-based violence.  

It is also important to note that debunking is more than simply being able to recognize myths and stereotypes. It is about exposing the ideological and cultural foundations of the myths and stereotypes prevalent in each culture and eradicating these fictions from the reasoning of all those who interpret our general culture, and, in particular, those in positions of power who contribute to their reinforcement.

Human rights advocates can also play an important role in building judicial capacity to address stereotyping and usage of gendered stereotypes like “promiscuous woman”, “kept woman”, “that type of a girl”, “unchaste” woman, and usage of words like “ravished” to connote a woman who has been sexually exploited, etc. This might include working with key institutions that provide education and training to judges. It might also include conducting their own education and training programmes for the legal profession and disseminating their own resources on stereotyping, including best practice approaches.

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

In the 70 years of the republic, women have made contributions in every walk of life. But the struggle for gender equality and justice  continues in the legal profession despite the fundamental right to equality

By Prof Upendra Baxi

In my last article, (see Baxi, India Legal, September 21, 2020), while counting the number of lawyers, I was surprised to find that in multiple interim orders of a total 18 pages, as many as eight listed the counsel representing parties and these were an overwhelming number of males. I then passingly used the phrase “feminisation of the bar”; I thank Shobha John, who requested me to develop a full article which has led me to tap some hidden potentialities of the phrase.

The feminisation of the Bar has yet to proceed apace, although we have moved far away from the times when women had to struggle to be counted as “persons”. The great legal dictionary (The General Clauses Act, 1897) ambivalently said that ‘“words importing the masculine gender shall be taken to include female”. The struggle against exclusion from the legal profession led eventually to the Legal Practitioners’ (Women) Act, XXIII of 1923, which abolished this discrimination.

Jhuma Sen has portrayed vividly its prehistory (The Wire, February 13, 2019). Yet, in the 70 years of the republic where women in every walk of life have made notable contributions to public life as proud citizens, the struggle for gender equality and justice still continues in the legal profession (LP).

Justice Dhananjaya Chandrachud cited (in his keynote address at the Harvard Law School Centre on December 11, 2017) that “women in the Indian  LP” remained at only five percent compared to “50 percent in Finland, 30 percent in the United States, and generally between 10 percent and 20 percent in Asian countries”.¹ He further continued this sobering tale by speaking of “an abysmal 2 percent” of senior advocates being women.

Similarly, in “the 63-year-old history of the Supreme Court, out of 204 judges, only five have been women”. It is no consolation to know that in 2020 we have two women justices on the Court (now with the recent retirement of Justice Banumathi). There has been no woman Chief Justice of India. (See Upendra Baxi, Women in Judiciary: From Raw Deal to New Deal?, India Legal, November 26, 2018.)

Further, it is well-known that the legal caste is all-male and it does not matter whether the executive or judiciary has a commanding voice in judicial appointments. “As I have observed in 2018, all Union law ministers (from Bhimrao Ramji Ambedkar to Ravi Shankar Prasad) have been male. Not a single woman has adorned the office of the Chair of the National Law Commission and the Bar Council of India (though it is an elective post). No woman has been appointed to the constitutional position of attorney general (though two—Indira Jaising and Pinky Anand have been recently appointed as additional solicitor general). Very few women are the Chairs of national administrative and statutory tribunals. Here, I am not even touching upon the equally dismal experience in various states in India. This, despite the fact that we had a woman president, prime minister, president of the Congress Party and many powerful women chief ministers”.

Indira Jaising and the National Lawyers Campaign for Judicial Transparency and Reforms have argued that putting lawyers into classes violates the fundamental right to equality under the Constitution. And as Professor Shubhankar Dam (writing in qz.com, Nov 08, 2017) reminded us, they constitute an “oligarchy” decreeing that “the legal fraternity in India shall remain divided between a smattering of royals and a sea of plebeian lawyers”. Women faculty and students in India have much more equitable ratio than in the judiciary and LP. This oligarchy at the Bar, of course, reinforces the worst forms of patriarchy. One may go further by listing the stories of discrimination on the ground of sex and even examples of aggravated sexual harassment at the workplace.

We have to carefully notice how small, and giant, steps were taken in incremental changes in law and the Constitution. But I will not go through the many landmark cases filed by a few women lawyers that promoted gender justice in domestic and public life and also male hostility, backlash and aggression. Nor will I go into the history, and the aftermath, of the Mathura Open Letter written by four law teachers which ignited concern about the central reality of violence against women and inaugurated a new era of democratic judicial accountability. Nor may we ever forget the feminisation of the basic structure made in, and developed since Vishaka, which judicially prescribed the law relative to sexual harassment at the workplace.

A second meaning of the “feminisation” of the Bar will take us to the model of liberal liberalism that pursues gender justice through legislative and constitutional change. Here, more work needs to be done to explore the intersectionality between gender justice and other kindred movements such as labour, environmental, indigenous people, Dalits and Bahujan movements, besides the conversations about gender justice among rural and urban women. We also need to ponder effective liberal strategies, besides having more women representation, between the Bar and the Bench and the feminisation of the law and the Constitution. Are they one and the same phenomenon, or two sides of the same coin? Or are they so distinct as to make the available good the enemy of the best? Is it the case that greater women representation on the Bench and the Bar would automatically enhance the quality (and the quantity) of gender justice and equality?

There is little question that all women will be one in decrying sex-based violence, degradation and servitude as preventable moral evils and social harm. But not all women share the central tenant of liberal legalism: the complete equality of sexes in all matters of gender justice; their religious faith, for one thing, and their social location on the other lead them to adjust with a lot of subordination inconsistent with the liberal legalist virtues. Some may debate, and even detest, many a practice of contemporary “feminism” as westtoxification. And even progressive feminists in their own life cycles who “have to deal with massively shifting social perspectives on their life choices” hailed “the cross-generational moment” as a “a passage of legacy, wisdom, memory and yet unanswered questions and resolved conflicts belonging to political and intellectual struggles that are much larger than life and much too important to leave behind”.²

We also learn from experience that far from being a war of sexes, many male justices have engendered legal and constitutional rights and values. Not all males are necessarily patriarchal and contribute a good deal towards women’s emancipation. Only when we recognise the heterogeneity of women and men as moral agents, can we reckon the paradox of why only a handful of women at the Bar, and some progressive Justices, have valiantly paved the way for equality and justice for women, and now for trans-people.

Greater representation of women at the Bar and Bench is, of course, essential and must be accelerated; but we ought also to realise that recognising plurality will bring to the table diverse views, and not always the liberal feminist visions of gender justice.

What Hisham Sharabi now identifies as neo-patriarchy (a “modernized form of traditional culture” ³) is not only a phenomenon of the modern Arab world. It is more widespread globally than is fully realised. The gains of liberal legal feminism seem most imperilled when neo-liberalism becomes structurally complicit as well as compliant with the neo-patriarchies of regressively conservative religious forces. The so-called “moral free zones” of free markets, in which neo-patriarchy is encased may well imperil the present victories of liberal “legal feminism”.

How then can an “overlapping consensus” (as John Rawls declared) be ensured in severely divided societies, crafting a “reasonable pluralism of rights and justice”?

One answer is to return to the basic structure of the Constitution which also includes now Part IV-A. The duties, on the one hand, stress “spirit” of critical enquiry, humanism, social reform, scientific temper and renunciation of all practices “derogatory of dignity of women”, and on the other hand, require us all to “value and cherish the rich heritage of our composite culture”. Do not these constitutional obligations help us in developing reasonable pluralism?

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

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¹At a book launch (on December 11, 2017) The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society, (Cambridge University Press, 2017) held on December 11, 2017.

² See, Stacy Gillis, Gillian Howie, and Rebecca Munford (ed), Third Wave Feminism: A Critical Exploration, at xvi.xxvi (Palgrave MacMillan, 2007).

³Hisham Sharabi, Neopatriarchy: A Theory of Distorted Change in Arab Society (Oxford University Press, 1992).