The Supreme court of India has ordered all judges of all levels to stop stereotyping women in court judgments, especially in cases related to sexual harassment, molestation, rape, etc. A Bench of Justices A.M. Khanwilkar and S. Ravindra Bhat stopped judges from trying to mandate marriage or compromise between a molester and his victim.
Over the year we have witnessed in high courts, and supreme courts, that the judges have asked the accused in a rape case, or molestation case to marry the victim. Recently, in a verdict, authored by Justice Bhat, set aside a Madhya Pradesh High Court order granting bail to a suspected molester provided he visits his victim at her home and ‘allows’ her to tie a rakhi on him, because using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate.
The Bench, in a judgment, proscribed judges from granting bail to suspected sexual offenders on the condition that they perform “community service” or apologies to their victims. The Supreme Court forbade the accused from getting in touch with the survivor.
Recently, the Chief Justice of India enquired a Maharashtra government employee, and ask whether he would marry a girl he was accused of raping repeatedly while she was a minor. In another case, the Bench stayed the arrest of a man accused of rape after falsely promising marriage.
There are cases where judges have ruled, that for sexual assault to be considered, there should be skin to skin contact between the victim and the accused, there have been plenty of cases where judges have held stereotypical views about women:
- Good women are sexually chaste, women who drink and smoke “ask” for sexual advances, or presume that a sexually active woman consented to rape.
- lack of evidence of physical harm in a sexual offense case leads to an inference of consent by the woman.
- being alone at night or wearing certain clothes makes women responsible for being attacked, women are emotional and often overreact or dramatize the events.
- good women should be obedient, they are physically weak and need protection, they are incapable of or cannot take decisions on their own.
- motherhood is the duty and role of every woman, men are dominant and women are caretakers, and taking care of family is a woman’s job, women should be the ones in charge of their children, their upbringing, and care.
The Court issued the following guidelines
- 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.
- 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 the direction to the accused not to make any contact with the victims.
- In the cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail, and the copy of the bail order made over to him/her within two days.
- Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society and must strictly as per the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;
- 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;
- The 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
- 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 in the court.
“Rape myths undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offense immediately, etc.” Outlaw behaviors” like stalking, eve-teasing, shades of verbal and physical assault, and harassment are typically characterized as “minor offenses” and even romanticized. These crimes are indulgently viewed through prisms like “boys will be boys”
In cases related to rape, molestation, and sexual assault these factors should be irrelevant, and strictly the judges should follow the law of the land. This is just the reflection of the patriarchal nature of the society, and the misogynistic attitudes that are promoted in our society, even after 70 years as a Republic.
“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view,” Justice Bhat quoted Henrik Ibsen in exasperation.
I even heard, the girl who decided to fill the case, experience rape every single hearing. And the case stretched for more than fifty to sixty years of her life. The Supreme Court said the law does not countenance a scenario where a victim can potentially be traumatized many times over and be led to accept or condone a serious offense. Undermining the guarantee of fair justice to all, and especially to victims of sexual violence.
“Late justice is no justice”
In the light of these controversial rulings, the supreme court has ordered judges of all levels to stop stereotyping women and look at these cases in an unbiased manner, keeping in mind the larger interest of the society. Judges should not fall into the trap of stereotyping. A judge’s address is not limited to the parties in a case but extends to the broader legal community of other lawyers, judges, legal academics, law students, and indeed the public at large, Justice Bhat.
Judges be trained on gender sensitization
The National Judicial Academy was requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges’ continuing education for gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities with courses that should be taught at the undergraduate level, in the LL.B program. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training.
(Pictures from google)