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Key takeaways

  • What is a Gender stereotype?
  • Presence of gender-based stereotypes and biases in our judicial system.
  • Patriarchal Judicial system
  • SC: A ray of hope for gender sensitization
  • Conclusion

Introduction

Gender stereotype is basically a view or preconception about attributes or characteristics that are supposed to be carried by women and men or the roles that are or should be performed by men and women. These stereotypes are the result of way long pattern of living followed by the people based on their gender. Men’s presence is supposed to be dominative and on the other hand, women are expected to be timid and submissive in society. Now, as a result of this, today women, even after so many inspirational movements for the rights of women and promoting equality of both genders, are still suffering; suffering because of the stereotypes which have been deeply penetrated the thought process of the common human being that this indifferent behavior of the society is considered normal and it is felt that there is nothing wrong in demanding women to fulfill the role criteria forced on them based on the biased stereotypes. Though, the fact that is not realized or taken into consideration is that these stereotypes based on women have affected a women's self-esteem, dignity, respect, expectations, and ambitions in a very negative way and had been doing the same for ages.

Reflection of Patriarchy in India’s Judicial System

The Judiciary which interprets the law for the people of our country which is also the body that is liable for providing justice to every individual is expected and supposed to be gender-neutral however, the biggest shame of our society is that this body expected to serve every single person is itself a product of patriarchal social processes. Judges are part of the same Indian Patriarchal society as we are and sometimes they bring their own beliefs about "Ideal women" into the reasoning table which always adversely affects the women’s dignity and this is not only about any particular though there are such examples present it is about the entire ecosystem where lawyers present such ridiculous arguments and judges validate them through their judgments.

There are many examples that show us our judiciary system is biassed against women and following stereotypes;

  • A few years ago in a judgment in the case of, Mohan V. State, M.P No. 2/2014 in Crl, The court suggested that mediation should be there between the rape victim and the accused aiming for a solution with “no victor and no vanquished”, even citing that the case was near a ‘Happy Conclusion’ as the accused has agreed to marry the victim, the victim asked how can she marry such a person who has stated that he doesn’t even know her until the DNA report proved him to be the father of the child.
  • Though, the amendment in rape law in 2013 has implemented that consent of the women is essential and crucial, yet the courts keep dragging the old mental frames describing how a victim should behave. In the very case of Mahmood Farooqui V. The State, where Delhi HC dismissed a rape case by stating that “instances of woman behavior are not unknown where a feeble 'no' may mean a 'yes." The burden was again put on women’s behavior being ringing enough.
  • Last year, the Karnataka High Court in the case of, Rakesh. B V. State of Karnataka, Crl.P.No.2427/2020, while granting bail to rape accused the court questioned the victim in a particular extract, as “nothing is mentioned by the complainant as to why she went to her office at night, that is, at 11 PM, she has not objected to consuming drinks with the petitioner and allowed him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished” the question here is that, is there a rulebook which decides how a rape victim or women should behave?
  • Also, Madhya Pradesh HC, last year in a case of, Vikram V. The State of Madhya Pradesh, MCRC 23350/2020 ‘while granting a conditional bail the accused asked the accused of rape “to have a rakhi tied” by the rape victim on his wrist and swear to protect her honor all the time’. The very fact that the same person is the one who has destroyed or put sham on the dignity of the victim is going to protect it; we can all think how deeply the accused will be concerned about protecting the victim’s honor.
  • Women have always been suppressed by the patriarchal ways of Indian society and its forced implication on them. In a judgment by Andhra Pradesh High Court in Ninety's, it was observed that the wife removed the mangalsutra even when her husband was alive. The court stated that "such an act is not expected from an educated Hindu Brahmin wife" which clarifies what the belief system of the bench was or still is?

There are many more judgments that are present where the courts have shown their patriarchal beliefs regarding women. Not only in our society but also in our judicial system, a women's behavior is always on trial. Even after coming this far when the constitution itself of our country recognizes everyone as equal still the women are suffering as a result of stereotypes attached to them.

Supreme Court: A Ray of Hope amidst a misogynist and patriarchal setup

Amidst all the judgments which reflect the patriarchal beliefs and are biased against women, the Supreme Court of India finally has passed a judgment on the 18th march in the case of, Aparna Bhat and Ors. V. State of Madhya Pradesh and Ors. [LL 2021 SC 168], the bench consisting of Justice A.M Khanwilkar and Justice S Ravindra Bhat directed the courts to follow and observe certain factors such as:

  • The courts while adjudicating cases involving gender-related crimes, should not suggest or entertain any notions towards any form of compromise between the prosecutrix and the accused as it is beyond their power and jurisdiction;
  • The court also observed that sensitivity should be displayed by all the judges at all times and should ensure that there is no traumatization of the victim, during the proceedings or anything said during the arguments.
  • Judges should not use any such words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.
  • Further, the 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 make 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.
  • To train and sensitize the judges, including lawyers and public prosecutors, the honorable court mandated that a module on gender sensitization be included as a part of the foundational training of every judge and the said module should 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 be emphasizing on the role that the 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 offenses against them. Emphasis was also given on the use of language and appropriate words and phrases should be emphasized as part of this training.
  • Likewise, the Bar Council of India was also directed to include topics like gender sensitization mandatorily in the syllabus after discussion with the subject experts.

This judgment of the SC is a landmark in its true essence, focusing on gender sensitization and supporting women in this patriarchal society.

Conclusion

It is high time to discuss the stereotypes present against women in the judicial system and curb them. Women should not be led to be a victim even at the point where she should be served justice. The Supreme Court by its order dated 18 March 2021 has created a new precedent that will be remembered by every woman in the upcoming generations. To support women in the modern world and truly moving forward from the ancient ways of society, this is one good step taken. There are many more changes that are needed to be discussed and directed to be amended in our judicial system but this is the beginning and the change will continue and the change is the only thing that is constant and one day we all will see a day where there will be no difference even of the slightest form between men and women and they will be considered equal in its true sense.


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