Observing that India is a conservative society, the Madhya Pradesh high court observed in a case of sexual assault involving the Protection of Children from Sexual Offenses Act, 2012 that unmarried girls do not engage in carnal activities for fun unless they are assured of marriage. Aparna Bhat v. State of Madhya Pradesh (Aparna Bhat) does not appear in the judgement, despite it being a precedent set by the Supreme Court in Aparna Bhat v. State of Madhya Pradesh. Specifically, the apex court had taken issue with a prior order that imposed a ‘rakhi-tying’ condition as a bail condition on a complainant in a sexual harassment case by a Madhya Pradesh high court.
According to the Supreme Court, such gender stereotyping injures women’s dignity and undermines their faith in the judicial system. Stereotyping in the context of judicial matters refers to the stigmatising process of ascribing personal characteristics or characteristics to an individual based on membership in a particular social group (e.g. women). There is a persisting culture of discrimination in the courts, which is exemplified by the ideal victim complex. The Indian legal system is lacking accountability to address stereotypes used by judges, as evidenced by the continuing use of stereotypes by courts in their judicial pronouncements.
The Mathura case of 1979 served as an example as one of the first cases in which the Highest Court of India was questioned for its underlying misogyny, showing how the highest court failed to provide justice to a rape victim. Due to factors such as the lack of injury marks and habitual sex, two policemen were acquitted of charges of rape. A turning point occurred in the women’s rights movement in India after this judgment as women’s rights groups mobilized afterwards.
The Supreme Court of India observed in Aparna Bhat that women face several obstacles in accessing justice due to rampant gender-based violence. In addition, families insisting on informal negotiations and community leaders participating in mediation further aggravate her trauma. By condoning stalking and sexual harassment within popular culture, including the realm of cinema, the film industry has added another layer of power to gender stereotyping. Despite accusations that MeToo was restricted to an urban elite circle, the call for greater accountability raised by women in the movement was needed to counter the prevalent biases.
Guidelines on gender perspectives for judges in South East Asia were developed by the International Commission of Jurists in Bangkok. There was a discussion regarding the following stereotypes that should be avoided when making judicial decisions:
- Women have limited physical ability;
- Women are incapable of making their own decisions;
- Every family decision must be made by the man; he is the head of the household;
- Submissiveness and obedience are necessary qualities for women;
- Wearing certain clothes during the night or being alone at night makes women more vulnerable to attacks;
- It is necessary to corroborate the testimony of women due to their emotional nature and tendency to dramatize or overreact;
- In evaluating “consent” in sexual offence cases, sexually active women may provide evidence of their involvement;
- In cases of sexual offence, the absence of physical harm suggests consent.
In most cases, gender violence goes unnoticed and is hidden in an atmosphere of silence. In addition to power imbalances, there are cultural and social norms, economic dependency, poverty, alcohol consumption, among others, that exacerbate the violence against women. Women in India often know the perpetrators of such crimes, and reporting them can be costly from a social and economic perspective. Economic dependence on family and fear of social stigma are significant barriers to women reporting sexual violence, abuse, and other abhorrent behaviour. In that context, the actual level of violence against women in India may be far higher than these data suggest, and women may be forced to continue to face hostility and become a victim of violence.
The CEDAW Committee has made notable decisions in this regard. The Committee observed in V.K. v. Bulgaria: “stereotyping is detrimental to women’s right to a fair trial and the judiciary should avoid creating inflexible guidelines on what constitutes domestic violence and gender-based violence.”
How it can be eradicated
Despite stereotypes harming the justice system, judges can play a major role in eradicating them. The laws and facts in evidence play an important role in guiding their decisions, and they should avoid in engaging gender stereotypes. In addition to identifying stereotypes, judges must recognize how the application or enforcement of these stereotypes discriminates against women or denies them the right to equal justice. The practice of stereotyping may compromise the impartiality of judges’ decisions and affect their views about witness credibility or their assessment of the guilt of the accused. Courts should refrain from expressing stereotypes, in verbal or written pronouncements, during proceedings or in the issuance of judicial orders.
Conclusion and Suggestion
To ensure the gender sensitization of judges and lawyers, including public prosecutors, the court should mandate that a module on gender sensitization be included in the foundational training for all judges. As a result of this module, judges will be able to understand how to be more sensitive when hearing and deciding cases of sexual assault, as well as eliminate entrenched social biases, particularly misogyny. Additionally, the module should emphasize the role judges, as role models and thought leaders, are expected to play in promoting equality and ensuring that all women who allege sexual abuse are treated fairly, securely, and equally. As a part of this training, the proper use of language and words should be stressed.
- Aparna Bhat and Other Versus State of Madhya Pradesh and Another, Criminal Appeal No. 329 of 2021.
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